G.R. No.
197597, April 08, 2015
IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF
DATUKAN MALANG SALIBO, DATUKAN MALANG SALIBO,
Petitioner, v. WARDEN, QUEZON CITY JAIL ANNEX, BJMP
BUILDING, CAMP BAGONG DIWA, TAGUIG CITY AND ALL OTHER
PERSONS ACTING ON HIS BEHALF AND/OR HAVING CUSTODY OF
DATUKAN MALANG SALIBO, Respondents.
DECISION
LEONEN, J.:
Habeas corpus is the proper remedy for a person deprived of liberty due to
mistaken identity. In such cases, the person is not under any lawful process
and is continuously being illegally detained.
This is a Petition for Review1 on Certiorari of the Court of Appeals Decision2
reversing the Decision3 of the Regional Trial Court, Branch 153, Pasig City
(Taguig Hall of Justice) granting Datukan Malang Salibo's Petition for
Habeas Corpus.
From November 7, 2009 to December 19, 2009, Datukan Malang Salibo
(Salibo) and other Filipinos were allegedly in Saudi Arabia for the Hajj
Pilgrimage.4 "While in Saudi Arabia, . . . Salibo visited and prayed in the
cities of Medina, Mecca, Arpa, Mina and Jeddah."5 He returned to the
Philippines on December 20, 2009.6
On August 3, 2010, Salibo learned that police officers of Datu Hofer Police
Station in Maguindanao suspected him to be Butukan S. Malang.7
Butukan S. Malang was one of the 197 accused of 57 counts of murder for
allegedly participating in the November 23, 2009 Maguindanao Massacre. He
had a pending warrant of arrest issued by the trial court in People of the
Philippines v. Datu Andal Ampatuan, Jr., et al.8
Salibo presented himself before the police officers of Datu Hofer Police
Station to clear his name. There, he explained that he was not Butukan S.
Malang and that he could not have participated in the November 23, 2009
Maguindanao Massacre because he was in Saudi Arabia at that time.9
To support his allegations, Salibo presented to the police "pertinent portions
of his passport, boarding passes and other documents"10 tending to prove that
a certain Datukan Malang Salibo was in Saudi Arabia from November 7 to
December 19, 2009.11
The police officers initially assured Salibo that they would not arrest him
because he was not Butukan S. Malang.12
Afterwards, however, the police officers apprehended Salibo and tore off
page two of his passport that evidenced his departure for Saudi Arabia on
November 7, 2009. They then detained Salibo at the Datu Hofer Police
Station for about three (3) days.13
The police officers transferred Salibo to the Criminal Investigation and
Detection Group in Cotabato City, where he was detained for another 10 days.
While in Cotabato City, the Criminal Investigation and Detention Group
allegedly made him sign and affix his thumbprint on documents.14
On August 20, 2010, Salibo was finally transferred to the Quezon City Jail
Annex, Bureau of Jail Management and Penology Building, Camp Bagong
Diwa, Taguig City, where he is currently detained.15
On September 17, 2010, Salibo filed before the Court of Appeals the Urgent
Petition for Habeas Corpus16 questioning the legality of his detention and
deprivation of his liberty.17 He maintained that he is not the accused Butukan
S. Malang.18
In the Resolution19 dated September 21, 2010, the Court of Appeals issued
a Writ of Habeas Corpus, making the Writ returnable to the Second Vice
Executive Judge of the Regional Trial Court, Pasig City (Taguig Hall of
Justice).20 The Court of Appeals ordered the Warden of the Quezon City Jail
Annex to file a Return of the Writ one day before the scheduled hearing and
produce the person of Salibo at the 10:00 a.m. hearing set on September 27,
2010.21
Proceedings before the trial court
On September 27, 2010, the jail guards of the Quezon City Jail Annex
brought Salibo before the trial court. The Warden, however, failed to file a
1
Return one day before the hearing. He also appeared without counsel during
the hearing.22
Thus, the trial court canceled the hearing and reset it to September 29, 2010
at 2:00 p.m.23
On September 28, 2010, the Warden filed the Return of the Writ. However,
during the September 29, 2010 hearing on the Return, the Warden appeared
with Atty. Romeo L. Villante, Jr., Legal Officer/Administering Officer of the
Bureau of Jail Management and Penology.24
Salibo questioned the appearance of Atty. Romeo L. Villante, Jr. on behalf of
the Warden and argued that only the Office of the Solicitor General has the
authority to appear on behalf of a respondent in a habeas corpus
proceeding.25
The September 29, 2010 hearing, therefore, was canceled. The trial court
reset the hearing on the Return to October 1, 2010 at 9:00 a.m.26
The Return was finally heard on October 1, 2010. Assistant Solicitors Noel
Salo and Isar Pepito appeared on behalf of the Warden of the Quezon City
Jail Annex and argued that Salibo's Petition for Habeas Corpus should be
dismissed. Since Salibo was charged under a valid Information and Warrant
of Arrest, a petition for habeas corpus was "no longer availing."27
Salibo countered that the Information, Amended Information, Warrant of
Arrest, and Alias Warrant of Arrest referred to by the Warden all point to
Butukan S. Malang, not Datukan Malang Salibo, as accused. Reiterating that
he was not Butukan S. Malang and that he was in Saudi Arabia on the day of
the Maguindanao Massacre, Salibo pleaded the trial court to order his release
from detention.28
The trial court found that Salibo was not "judicially charged"29 under any
resolution, information, or amended information. The Resolution,
Information, and Amended Information presented in court did not charge
Datukan Malang Salibo as an accused. He was also not validly arrested as
there was no Warrant of Arrest or Alias Warrant of Arrest against Datukan
Malang Salibo. Salibo, the trial court ruled, was not restrained of his liberty
under process issued by a court.30
The trial court was likewise convinced that Salibo was not the Butukan S.
Malang charged with murder in connection with the Maguindanao Massacre.
The National Bureau of Investigation Clearance dated August 27, 2009
showed that Salibo has not been charged of any crime as of the date of the
certificate.31 A Philippine passport bearing Salibo's picture showed the name
"Datukan Malang Salibo."32
Moreover, the trial court said that Salibo "established that [he] was out of the
country"33 from November 7, 2009 to December 19, 2009. This fact was
supported by a Certification34 from Saudi Arabian Airlines confirming
Salibo's departure from and arrival in Manila on board its flights.35 A Flight
Manifest issued by the Bureau of Immigration and Saudi Arabian Airlines
Ticket No. 0652113 also showed this fact.36
Thus, in the Decision dated October 29, 2010, the trial court granted Salibo's
Petition for Habeas Corpus and ordered his immediate release from detention.
Proceedings before the Court of Appeals
On appeal37 by the Warden, however, the Court of Appeals reversed and set
aside the trial court's Decision.38 Through its Decision dated April 19, 2011,
the Court of Appeals dismissed Salibo's Petition for Habeas Corpus.
Contrary to the trial court's finding, the Court of Appeals found that Salibo's
arrest and subsequent detention were made under a valid Information and
Warrant of Arrest.39 Even assuming that Salibo was not the Butukan S.
Malang named in the Alias Warrant of Arrest, the Court of Appeals said that
"[t]he orderly course of trial must be pursued and the usual remedies
exhausted before the writ [of habeas corpus] may be invoked[.]"40 According
to the Court of Appeals, Salibo's proper remedy was a Motion to Quash
Information and/or Warrant of Arrest.41
Salibo filed a Motion for Reconsideration,42 which the Court of Appeals
denied in the Resolution43 dated July 6, 2011.
Proceedings before this court
2
On July 28, 2011,44 petitioner Salibo filed before this court the Petition for
Review (With Urgent Application for a Writ of Preliminary
Mandatory Injunction). Respondent Warden filed a Comment,45 after which
petitioner Salibo filed a Reply.46
Petitioner Salibo maintains that he is not the Butukan S. Malang charged with
57 counts of murder before the Regional Trial Court, Branch 221, Quezon
City. Thus, contrary to the Court of Appeals' finding, he, Datukan Malang
Salibo, was not duly charged in court. He is being illegally deprived of his
liberty and, therefore, his proper remedy is a Petition for Habeas Corpus.47
Petitioner Salibo adds that respondent Warden erred in appealing the
Decision of the Regional Trial Court, Branch 153, Pasig City before the Court
of Appeals. Although the Court of Appeals delegated to the trial court the
authority to hear respondent Warden on the Return, the trial court's Decision
should be deemed a Decision of the Court of Appeals. Therefore, respondent
Warden should have directly filed his appeal before this court.48
As for respondent Warden, he maintains that petitioner Salibo was duly
charged in court. Even assuming that he is not the Butukan S. Malang named
in the Alias Warrant of Arrest, petitioner Salibo should have pursued the
ordinary remedy of a Motion to Quash Information, not a Petition for Habeas
Corpus.49
The issues for our resolution are:
First, whether the Decision of the Regional Trial Court, Branch 153, Pasig
City on petitioner Salibo's Petition for Habeas Corpus was appealable to the
Court of Appeals; and Second, whether petitioner Salibo's proper remedy is
to file a Petition for Habeas Corpus.
We grant the Petition.cralawlawlibrary
I be ordered to show cause why the petitioner or the person in whose behalf
Contrary to petitioner Salibo's claim, respondent Warden correctly appealed
before the Court of Appeals.
An application for a writ of habeas corpus may be made through a petition
filed before this court or any of its members,50 the Court of Appeals or any
of its members in instances authorized by law,51 or the Regional Trial Court
or any of its presiding judges.52 The court or judge grants the writ and
requires the officer or person having custody of the person allegedly
restrained of liberty to file a return of the writ.53 A hearing on the return of
the writ is then conducted.54
The return of the writ may be heard by a court apart from that which issued
the writ.55 Should the court issuing the writ designate a lower court to which
the writ is made returnable, the lower court shall proceed to decide the
petition of habeas corpus. By virtue of the designation, the lower court
"acquire[s] the power and authority to determine the merits of the [petition
for habeas corpus.]"56 Therefore, the decision on the petition is a decision
appealable to the court that has appellate jurisdiction over decisions of the
lower court.57
In Saulo v. Brig. Gen. Cruz, etc,58 "a petition for habeas corpus was filed
before this Court . . . [o]n behalf of. . . Alfredo B. Saulo [(Saulo)]."59 This
court issued a Writ of Habeas Corpus and ordered respondent Commanding
General of the Philippine Constabulary to file a Return of the Writ. This court
made the Writ returnable to the Court of First Instance of Manila.60
After hearing the Commanding General on the Return, the Court of First
Instance denied Saulo's Petition for Habeas Corpus.61
Saulo appealed before this court, arguing that the Court of First Instance
heard the Petition for Habeas Corpus "not by virtue of its original jurisdiction
but merely delegation[.]"62 Consequently, "this Court should have the final
say regarding the issues raised in the petition, and only [this court's decision]
. . . should be regarded as operative."63
This court rejected Sciulo's argument and stated that his "logic is more
apparent than real."64 It ruled that when a superior court issues a writ of
habeas corpus, the superior court only resolves whether the respondent should
the petition was filed was being detained or deprived of his or her liberty.65
However, once the superior court makes the writ returnable to a lower court
as allowed by the Rules of Court, the lower court designated "does not
3
thereby become merely a recommendatory body, whose findings and
conclusion[s] are devoid of effect[.]"66 The decision on the petition for
habeas corpus is a decision of the lower court, not of the superior court.
In Medina v. Gen. Yan,67 Fortunato Medina (Medina) filed before this court
a Petition for Habeas Corpus. This court issued a Writ of Habeas Corpus,
making it returnable to the Court of First Instance of Rizal, Quezon City.
After trial on the merits, the Court of First Instance granted Medina's Petition
for Habeas Corpus and ordered that Medina be released from detention.68
The Office of the Solicitor General filed a Notice of Appeal before the Court
of Appeals.69
Atty. Amelito Mutuc, counsel for Medina, filed before the Court of Appeals
a "Motion for Certification of Appeal to the Supreme Court." The Court of
Appeals, however, denied the Motion.70
This court ruled that the Court of Appeals correctly denied the "Motion for
Certification of Appeal to the Supreme Court," citing Saulo as legal basis.71
The Court of First Instance of Rizal, in deciding Medina's Petition for Habeas
Corpus, "acquired the power and authority to determine the merits of the
case[.]"72 Consequently, the decision of the Court of First Instance of Rizal
on Medina's Petition for Habeas Corpus was appealable to the Court of
Appeals.73
In this case, petitioner Salibo filed his Petition for Habeas Corpus before the
Court of Appeals. The Court of Appeals issued a Writ of Habeas Corpus,
making it returnable to the Regional Trial Court, Branch 153, Pasig City. The
trial court then heard respondent Warden on his Return and decided the
Petition on the merits.
Applying Saulo and Medina, we rule that the trial court "acquired the power
and authority to determine the merits"74 of petitioner Salibo's Petition. The
decision on the Petition for Habeas Corpus, therefore, was the decision of the
trial court, not of the Court of Appeals. Since the Court of Appeals is the court
with appellate jurisdiction over decisions of trial courts,75 respondent
Warden correctly filed the appeal before the Court of
Appeals.cralawlawlibrary
II
Called the "great writ of liberty[,]"76 the writ of habeas corpus "was devised
and exists as a speedy and effectual remedy to relieve persons from unlawful
restraint, and as the best and only sufficient defense of personal freedom."77
The remedy of habeas corpus is extraordinary78 and summary79 in nature,
consistent with the law's "zealous regard for personal liberty."80
Under Rule 102, Section 1 of the Rules of Court, the writ of habeas corpus
"shall extend to all cases of illegal confinement or detention by which any
person is deprived of his liberty, or by which the rightful custody of any
person is withheld from the person entitled thereto."81 The primary purpose
of the writ "is to inquire into all manner of involuntary restraint as
distinguished from voluntary, and to relieve a person therefrom if such
restraint is illegal."82 "Any restraint which will preclude freedom of action
is sufficient."83
The nature of the restraint of liberty need not be related to any offense so as
to entitle a person to the efficient remedy of habeas corpus. It may be availed
of as a post-conviction remedy84 or when there is an alleged violation of the
liberty of abode.85 In other words, habeas corpus effectively substantiates
the implied autonomy of citizens constitutionally protected in the right to
liberty in Article III, Section 1 of the Constitution.86 Habeas corpus being a
remedy for a constitutional right, courts must apply a conscientious and
deliberate level of scrutiny so that the substantive right to liberty will not be
further curtailed in the labyrinth of other processes.87
In Gumabon, et al. v. Director of the Bureau of Prisons,88 Mario Gumabon
(Gumabon), Bias Bagolbagol (Bagolbagol), Gaudencio Agapito (Agapito),
Epifanio Padua (Padua), and Paterno Palmares (Palmares) were convicted of
the complex crime of rebellion with murder. They commenced serving their
respective sentences of reclusion perpetua.89
While Gumabon, Bagolbagol, Agapito, Padua, and Palmares were serving
their sentences, this court promulgated People v. Hernandez90 in 1956, ruling
that the complex crime of rebellion with murder does not exist.91
Based on the Hernandez ruling, Gumabon, Bagolbagol, Agapito, Padua, and
Palmares filed a Petition for Habeas Corpus. They prayed for their release
from incarceration and argued that the Hernandez doctrine must retroactively
apply to them.92
4

This court ruled that Gumabon, Bagolbagol, Agapito, Padua, and Palmares
properly availed of a petition for habeas corpus.93 Citing Harris v. Nelson,94
this court said:chanroblesvirtuallawlibrary
[T]he writ of habeas corpus is the fundamental instrument for safeguarding
individual freedom against arbitrary and lawless state action. . . . The scope
and flexibility of the writ — its capacity to reach all manner of illegal
detention — its ability to cut through barriers of form and procedural mazes
— have always been emphasized and jealously guarded by courts and
lawmakers. The very nature of the writ demands that it be administered with
the initiative and flexibility essential to insure that miscarriages of justice
within its reach are surfaced and corrected.95cralawlawlibrary
In Rubi v. Provincial Board of Mindoro,96 the Provincial Board of Mindoro
issued Resolution No. 25, Series of 1917. The Resolution ordered the
Mangyans removed from their native habitat and compelled them to
permanently settle in an 800-hectare reservation in Tigbao. Under the
Resolution, Mangyans who refused to establish themselves in the Tigbao
reservation were imprisoned.97
An application for habeas corpus was filed before this court on behalf of Rubi
and all the other Mangyans being held in the reservation.98 Since the
application questioned the legality of deprivation of liberty of Rubi and the
other Mangyans, this court issued a Writ of Habeas Corpus and ordered the
Provincial Board of Mindoro to make a Return of the Writ.99
A Writ of Habeas Corpus was likewise issued in Villavicencio v. Lukban.100
"[T]o exterminate vice,"101 Mayor Justo Lukban of Manila ordered the
brothels in Manila closed. The female sex workers previously employed by
these brothels were rounded up and placed in ships bound for Davao. The
women were expelled from Manila and deported to Davao without their
consent.102
On application by relatives and friends of some of the deported women, this
court issued a Writ of Habeas Corpus and ordered Mayor Justo Lukban,
among others, to make a Return of the Writ. Mayor Justo Lukban, however,
failed to make a Return, arguing that he did not have custody of the
women.103
This court cited Mayor Justo Lukban in contempt of court for failure to make
a Return of the Writ.104 As to the legality of his acts, this court ruled that
Mayor Justo Lukban illegally deprived the women he had deported to Davao
of their liberty, specifically, of their privilege of domicile.105 It said that the
women, "despite their being in a sense lepers of society[,] are nevertheless
not chattels but Philippine citizens protected by the same constitutional
guaranties as are other citizens[.]"106 The women had the right "to change
their domicile from Manila to another locality."107
The writ of habeas corpus is different from the final decision on the petition
for the issuance of the writ. It is the writ that commands the production of the
body of the person allegedly restrained of his or her liberty. On the other
hand, it is in the final decision where a court determines the legality of the
restraint.
Between the issuance of the writ and the final decision on the petition for its
issuance, it is the issuance of the writ that is essential. The issuance of the
writ sets in motion the speedy judicial inquiry on the legality of any
deprivation of liberty. Courts shall liberally issue writs of habeas corpus even
if the petition for its issuance "on [its] face [is] devoid of merit[.]"108
Although the privilege of the writ of habeas corpus may be suspended in cases
of invasion, rebellion, or when the public safety requires it,109 the writ itself
may not be suspended.110
III
It is true that a writ of habeas corpus may no longer be issued if the person
allegedly deprived of liberty is restrained under a lawful process or order of
the court.111 The restraint then has become legal,112 and the remedy of
habeas corpus is rendered moot and academic.113 Rule 102, Section 4 of the
Rules of Court provides:chanroblesvirtuallawlibrary
SEC. 4. When writ not allowed or discharge authorized.—If it appears that
the person alleged to be restrained of his liberty is in the custody of an officer
under process issued by a court or judge or by virtue of a judgment or order
of a court of record, and that the court or judge had jurisdiction to issue the
process, render the judgment, or make the order, the writ shall not be allowed;
or if the jurisdiction appears after the writ is allowed, the person shall not be
discharged by reason of any informality or defect in the process, judgment,
or order. Nor shall anything in this rule be held to authorize the discharge of
a person charged with or convicted of an offense in the Philippines, or of a
person suffering imprisonment under lawful judgment.
5
In Ilagan v. Hon. Ponce Enrile,114 elements of the Philippine Constabulary-
Integrated National Police arrested Atty. Laurente C. Ilagan (Atty. Ilagan) by
virtue of a Mission Order allegedly issued by then Minister of National
Defense, Juan Ponce Enrile (Minister Enrile). On the day of Atty. Ilagan's
arrest,115 from the Integrated Bar of the Philippines Davao Chapter visited
Atty. Ilagan in Camp Catitipan, where he was detained.115
Among Atty. Ilagan's visitors was Atty. Antonio Arellano (Atty. Arellano).
Atty. Arellano, however, no longer left Camp Catitipan as the military
detained and arrested him based on an unsigned Mission Order.116
Three (3) days after the arrest of Attys. Ilagan and Arellano, the military
informed the Integrated Bar of the Philippines Davao Chapter of the
impending arrest of Atty. Marcos Risonar (Atty. Risonar). To verify his arrest
papers, Atty. Risonar went to Camp Catitipan. Like Atty. Arellano, the
military did not allow Atty. Risonar to leave. He was arrested based on a
Mission Order signed by General Echavarria, Regional Unified
Commander.117
The Integrated Bar of the Philippines, the Free Legal Assistance Group, and
the Movement of Attorneys for Brotherhood, Integrity and Nationalism filed
before this court a Petition for Habeas Corpus in behalf of Attys. Ilagan,
Arellano, and Risonar.118
This court issued a Writ of Habeas Corpus and required Minister Enrile,
Armed Forces of the Philippines Acting Chief of Staff Lieutenant General
Fidel V. Ramos (General Ramos), and Philippine Constabulary-Integrated
National Police Regional Commander Brigadier General Dionisio Tan-Gatue
(General Tan-Gatue) to make a Return of the Writ.119 This court set the
hearing on the Return on May 23, 1985.120
In their Return, Minister Enrile, General Ramos, and General Tan-Gatue
contended that the privilege of the Writ of Habeas Corpus was suspended as
to Attys. Ilagan, Arellano, and Risonar by virtue of Proclamation No. 2045-
A.121 The lawyers, according to respondents, allegedly "played active roles
in organizing mass actions of the Communist Party of the Philippines and the
National Democratic Front."122
After hearing respondents on their Return, this court ordered the temporary
release of Attys. Ilagan, Arellano, and Risonar on the recognizance of their
counsels, retired Chief Justice Roberto Concepcion and retired Associate
Justice Jose B.L. Reyes.123
Instead of releasing Attys. Ilagan, Arellano, and Risonar, however, Minister
Enrile, General Ramos, and General Tan-Gatue filed a Motion for
Reconsideration.124 They filed an Urgent Manifestation/Motion stating that
Informations for rebellion were filed against Attys. Ilagan, Arellano, and
Risonar. They prayed that this court dismiss the Petition for Habeas Corpus
for being moot and academic.125
The Integrated Bar of the Philippines, the Free Legal Assistance Group, and
the Movement of Attorneys for Brotherhood, Integrity and Nationalism
opposed the motion. According to them, no preliminary investigation was
conducted before the filing of the Information. Attys. Ilagan, Arellano, and
Risonar were deprived of their right to due process. Consequently, the
Information was void.126
This court dismissed the Petition for Habeas Corpus, ruling that it became
moot and academic with the filing of the Information against Attys. Ilagan,
Arellano, and Risonar in court:127ChanRoblesVirtualawlibrary
As contended by respondents, the petition herein has been rendered moot and
academic by virtue of the filing of an Information against them for Rebellion,
a capital offense, before the Regional Trial Court of Davao City and the
issuance of a Warrant of Arrest against them. The function of the special
proceeding of habeas corpus is to inquire into the legality of one's detention.
Now that the detained attorneys' incarceration is by virtue of a judicial order
in relation to criminal cases subsequently filed against them before the
Regional Trial Court of Davao City, the remedy of habeas corpus no longer
lies. The Writ had served its purpose.128 (Citations omitted)
This court likewise dismissed the Petitions for habeas corpus in Umil v.
Ramos.129 Roberto Umil, Rolando Dural, Renato Villanueva, Amelia
Roque, Wilfredo Buenaobra, Atty. Domingo Anonuevo, Ramon Casiple,
Vicky A. Ocaya, Deogracias Espiritu, and Narciso B. Nazareno were all
arrested without a warrant for their alleged membership in the Communist
Party of the Philippines/New People's Army.130
During the pendency of the habeas corpus proceedings, however,
Informations against them were filed before this court. The filing of the
Informations, according to this court, rendered the Petitions for habeas corpus
moot and academic, thus:131ChanRoblesVirtualawlibrary
6
It is to be noted that, in all the petitions here considered, criminal charges
have been filed in the proper courts against the petitioners. The rule is, that if
a person alleged to be restrained of his liberty is in the custody of an officer
under process issued by a court or judge, and that the court or judge had
jurisdiction to issue the process or make the order, or if such person is charged
before any court, the writ of habeas corpus will not be allowed.132 (Emphasis
in the original)
In such cases, instead of availing themselves of the extraordinary remedy of
a petition for habeas corpus, persons restrained under a lawful process or
order of the court must pursue the orderly course of trial and exhaust the usual
remedies.133 This ordinary remedy is to file a motion to quash the
information or the warrant of arrest.134
At any time before a plea is entered,135 the accused may file a motion to
quash complaint or information based on any of the grounds enumerated in
Rule 117, Section 3 of the Rules of Court:chanroblesvirtuallawlibrary
SEC. 3. Grounds.—The accused may move to quash the complaint or
information on any of the following grounds:chanroblesvirtuallawlibrary
(a)
That the facts charged do not constitute an offense;
(b)
That the court trying the case has no jurisdiction over the offense charged;
(c)
That the court trying the case has no jurisdiction over the person of the
accused;.
(d)
That the officer who filed the information had no authority to do so;
(e)
That it does not conform substantially to the prescribed form;
(f)
That more than one offense is charged except when a single punishment for
various offenses is prescribed by law;
(g)
That the criminal action or liability has been extinguished;
(h)
That it contains averments which, if true, would constitute a legal excuse or
justification; and
(i)
That the accused has been previously convicted or acquitted of the offense
charged, or the case against him was dismissed or otherwise terminated
without his express consent.
In filing a motion to quash, the accused "assails the validity of a criminal
complaint or information filed against him [or her] for insufficiency on its
face in point of law, or for defects which are apparent in the face of the
information."136 If the accused avails himself or herself of a motion to quash,
the accused "hypothetical[ly] admits the facts alleged in the information."137
"Evidence aliunde or matters extrinsic from the information are not to be
considered."138ChanRoblesVirtualawlibrary
"If the motion to quash is based on an alleged defect of the complaint or
information which can be cured by amendment, the court shall order [the]
amendment [of the complaint or information]."139 If the motion to quash is
based on the ground that the facts alleged in the complaint or information do
not constitute an offense, the trial court shall give the prosecution "an
opportunity to correct the defect by amendment."140 If after amendment, the
complaint or information still suffers from the same defect, the trial court
shall quash the complaint or information.141
IV
However, Ilagan142 and Umil do not apply to this case. Petitioner Salibo was
not arrested by virtue of any warrant charging him of an offense. He was not
restrained under a lawful process or an order of a court. He was illegally
deprived of his liberty, and, therefore, correctly availed himself of a Petition
for Habeas Corpus.
The Information and Alias Warrant of Arrest issued by the Regional Trial
Court, Branch 221, Quezon City in People of the Philippines v. Datu Andal
Ampatuan, Jr., et al. charged and accused Butukan S. Malang, not Datukan
Malang Salibo, of 57 counts of murder in connection with the Maguindanao
Massacre.
Furthermore, petitioner Salibo was not validly arrested without a warrant.
Rule 113, Section 5 of the Rules of Court enumerates the instances when a
warrantless arrest may be made:chanroblesvirtuallawlibrary
SEC. 5. Arrest without warrant; when lawful.—A peace officer or a private
person may, without a warrant, arrest a person:chanroblesvirtuallawlibrary
(a)
7
When, in his presence, the person to be arrested has committed, is actually
committing, or is attempting to commit an offense;
(b)
When an offense has just been committed and he has probable cause to
believe based on- personal knowledge of facts or circumstances that the
person to be arrested has committed it;
(c)
When the person to be arrested is a prisoner who has escaped from a penal
establishment or place where he is serving final judgment or is temporarily
confined while his case is pending, or has escaped while being transferred
from one confinement to another.
In cases falling under paragraphs (a) and (b) above, the person arrested
without a warrant shall be forthwith delivered to the nearest police station or
jail and shall be proceeded against in accordance with section 7 of Rule 112.
It is undisputed that petitioner Salibo presented himself before the Datu Hofer
Police Station to clear his name and to prove that he is not the accused
Butukan S. Malang. When petitioner Salibo was in the presence of the police
officers of Datu Hofer Police Station, he was neither committing nor
attempting to commit an offense. The police officers had no personal
knowledge of any offense that he might have committed. Petitioner Salibo
was also not an escapee prisoner.
The police officers, therefore, had no probable cause to arrest petitioner
Salibo without a warrant. They deprived him of his right to liberty without
due process of law, for which a petition for habeas corpus may be issued.
The arrest of petitioner Salibo is similar to the arrest of Atty. Risonar in the
"disturbing"143 case of Ilagan.144 Like petitioner Salibo, Atty. Risonar went
to Camp Catitipan to verify and contest any arrest papers against him. Then
and there, Atty. Risonar was arrested without a warrant. In his dissenting
opinion in Ilagan,145 Justice Claudio Teehankee stated that the lack of
preliminary investigation deprived Atty. Risonar, together with Attys. Ilagan
and Arellano, of his right to due process of law — a ground for the grant of a
petition for habeas corpus:146
The majority decision holds that the filing of the information without
preliminary investigation falls within the exceptions of Rule 112, sec. 7 and
Rule 113, sec. 5 of the 1985 Rules on Criminal Procedure. Again, this is
erroneous premise. The fiscal misinvoked and misapplied the cited rules. The
petitioners are not persons "lawfully arrested without a warrant." The fiscal
could not rely on the stale and inoperative PDA of January 25, 1985.
Otherwise, the rules would be rendered nugatory, if all that was needed was
to get a PDA and then serve it at one's whim and caprice when the very
issuance of the PDA is premised on its imperative urgency and necessity as
declared by the President himself. The majority decision then relies on Rule
113, Sec. 5 which authorizes arrests without warrant by a citizen or by a
police officer who witnessed the arrestee in flagrante delicto, viz. in the act
of committing the offense. Quite obviously, the arrest was not a citizen's
arrest nor were they caught in flagrante delicto violating the law. In fact, this
Court in promulgating the 1985 Rules on Criminal Procedure have tightened
and made the rules more strict. Thus, the Rule now requires that an offense
"has in fact just been committed." This connotes immediacy in point of time
and excludes cases under the old rule where an offense "has in fact been
committed" no matter how long ago. Similarly, the arrestor must have
"personal knowledge of facts indicating that the [arrestee] has committed it"
(instead of just "reasonable ground to believe that the [arrestee] has
committed it" under the old rule). Clearly, then, an information could not just
be filed against the petitioners without due process and preliminary
investigation.147 (Emphasis in the original, citation omitted)
Petitioner Salibo's proper remedy is not a Motion to Quash Information
and/or Warrant of Arrest. None of the grounds for filing a Motion to Quash
Information apply to him. Even if petitioner Salibo filed a Motion to Quash,
the defect he alleged could not have been cured by mere amendment of the
Information and/or Warrant of Arrest. Changing the name of the accused
appearing in the Information and/or Warrant of Arrest from "Butukan S.
Malang" to "Datukan Malang Salibo" will not cure the lack of preliminary
investigation in this case.
A motion for reinvestigation will' not cure the defect of lack of preliminary
investigation. The Information and Alias Warrant of Arrest were issued on
the premise that Butukan S. Malang and Datukan Malang Salibo are the same
person. There is evidence, however, that the person detained by virtue of
these processes is not Butukan S. Malang but another person named Datukan
Malang Salibo.
Petitioner Salibo presented in evidence his Philippine passport,148 his
identification card from the Office on Muslim Affairs,149 his Tax
Identification Number card,150 and clearance from the National Bureau of
Investigation151 all bearing his picture and indicating the name "Datukan
8
Malang Salibo." None of these government-issued documents showed that Management and Penology Building, Camp Bagong Diwa, Taguig, is
petitioner Salibo used the alias "Butukan S. Malang." ORDERED to immediately RELEASE petitioner Datukan Maiang Salibo
from detention.
Moreover, there is evidence that petitioner Salibo was not in the country on
November 23, 2009 when the Maguindanao Massacre occurred. The Letter of the Court of Appeals elevating the records of the case to this
court is hereby NOTED.
A Certification152 from the Bureau of Immigration states that petitioner
Salibo departed for Saudi Arabia on November 7, 2009 and arrived in the SO ORDERED.chanroblesvirtuallawlibrary
Philippines only on December 20, 2009. A Certification153 from Saudi
Arabian Airlines attests that petitioner Salibo departed for Saudi Arabia on Carpio, (Chairperson), Brion, Del Castillo, and Mendoza, JJ., concur.
board Saudi Arabian Airlines Flight SV869 on November 7, 2009 and that he
arrived in the Philippines on board Saudi Arabian Airlines SV870 on
December 20, 2009.cralawlawlibrary

People of the Philippines v. Datu Andal Ampatuan, Jr., et al. is probably the
most complex case pending in our courts. The case involves 57 victims154
and 197 accused, two (2) of which have become state witnesses.155 As of
November 23, 2014, 111 of the accused have been arraigned, and 70 have
filed petitions for bail of which 42 have already been resolved.156 To require
petitioner Salibo to undergo trial would be to further illegally deprive him of
his liberty. Urgency dictates that we resolve his Petition in his favor given the
strong evidence that he is not Butukan S. Malang.

In ordering petitioner Salibo's release, we are prejudging neither his guilt nor
his innocence. However, between a citizen who has shown that he was
illegally deprived of his liberty without due process of law and the
government that has all the "manpower and the resources at [its]
command"157 to properly indict a citizen but failed to do so, we will rule in
favor of the citizen.

Should the government choose to prosecute petitioner Salibo, it must pursue

the proper remedies against him as provided in our Rules. Until then, we rule
that petitioner Salibo is illegally deprived of his liberty. His Petition for
Habeas Corpus must be granted.cralawred

WHEREFORE, the Petition for Review on Certiorari is GRANTED. The

Court of Appeals Decision dated April 19, 2011 is REVERSED and SET
ASIDE. Respondent Warden, Quezon City Jail Annex, Bureau of Jail

9
THE SECRETARY OF NATIONAL DEFENSE, THE CHIEF OF STAFF,
ARMED FORCES OF THE PHILIPPINES, Present:

Petitioners,

PUNO, C.J.,

QUISUMBING,

YNARES-SANTIAGO,

CARPIO,

AUSTRIA-MARTINEZ,

CORONA,

- versus - CARPIO MORALES,

AZCUNA,

TINGA,

CHICO-NAZARIO,

VELASCO, JR.,

NACHURA,

REYES,

RAYMOND MANALO and REYNALDO MANALO, LEONARDO-DE CASTRO, and

Respondents. BRION, JJ.

G.R. No. 180906 Promulgated:

October 7, 2008

10

x- - -- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
x
DECISION
PUNO, C.J.:
While victims of enforced disappearances are separated from the rest of the
world behind secret walls, they are not separated from the constitutional
protection of their basic rights. The constitution is an overarching sky that
covers all in its protection. The case at bar involves the rights to life, liberty
and security in the first petition for a writ of amparo filed before this Court.
This is an appeal via Petition for Review under Rule 45 of the Rules of Court
in relation to Section 19[1] of the Rule on the Writ of Amparo, seeking to
reverse and set aside on both questions of fact and law, the Decision
promulgated by the Court of Appeals in C.A. G.R. AMPARO No. 00001,
entitled Raymond Manalo and Reynaldo Manalo, petitioners, versus The
Secretary of National Defense, the Chief of Staff, Armed Forces of the
Philippines, respondents.
This case was originally a Petition for Prohibition, Injunction, and Temporary
Restraining Order (TRO)[2] filed before this Court by herein respondents
(therein petitioners) on August 23, 2007 to stop herein petitioners (therein
respondents) and/or their officers and agents from depriving them of their
right to liberty and other basic rights. Therein petitioners also sought ancillary
remedies, Protective Custody Orders, Appointment of Commissioner,
Inspection and Access Orders, and all other legal and equitable reliefs under
Article VIII, Section 5(5)[3] of the 1987 Constitution and Rule 135, Section
6 of the Rules of Court. In our Resolution dated August 24, 2007, we (1)
ordered the Secretary of the Department of National Defense and the Chief
of Staff of the AFP, their agents, representatives, or persons acting in their
stead, including but not limited to the Citizens Armed Forces Geographical
Unit (CAFGU) to submit their Comment; and (2) enjoined them from causing
the arrest of therein petitioners, or otherwise restricting, curtailing, abridging,
or depriving them of their right to life, liberty, and other basic rights as
guaranteed under Article III, Section 1[4] of the 1987 Constitution.[5]
While the August 23, 2007 Petition was pending, the Rule on the Writ of
Amparo took effect on October 24, 2007. Forthwith, therein petitioners filed
a Manifestation and Omnibus Motion to Treat Existing Petition as Amparo
Petition, to Admit Supporting Affidavits, and to Grant Interim and Final
Amparo Reliefs. They prayed that: (1) the petition be considered a Petition
for the Writ of Amparo under Sec. 26[6] of the Amparo Rule; (2) the Court
issue the writ commanding therein respondents to make a verified return
within the period provided by law and containing the specific matter required
by law; (3) they be granted the interim reliefs allowed by the Amparo Rule
and all other reliefs prayed for in the petition but not covered by the Amparo
Rule; (4) the Court, after hearing, render judgment as required in Sec. 18[7]
of the Amparo Rule; and (5) all other just and equitable reliefs.[8]
On October 25, 2007, the Court resolved to treat the August 23, 2007 Petition
as a petition under the Amparo Rule and further resolved, viz:
WHEREFORE, let a WRIT OF AMPARO be issued to respondents requiring
them to file with the CA (Court of Appeals) a verified written return within
five (5) working days from service of the writ. We REMAND the petition to
the CA and designate the Division of Associate Justice Lucas P. Bersamin to
conduct the summary hearing on the petition on November 8, 2007 at 2:00
p.m. and decide the petition in accordance with the Rule on the Writ of
Amparo.[9]
On December 26, 2007, the Court of Appeals rendered a decision in favor of
therein petitioners (herein respondents), the dispositive portion of which
reads, viz:
ACCORDINGLY, the PRIVILEGE OF THE WRIT OF AMPARO is
GRANTED.
The respondents SECRETARY OF NATIONAL DEFENSE and AFP
CHIEF OF STAFF are hereby REQUIRED:
11
1. To furnish to the petitioners and to this Court within five days from
notice of this decision all official and unofficial reports of the investigation
undertaken in connection with their case, except those already on file herein;
2. To confirm in writing the present places of official assignment of M/Sgt
Hilario aka Rollie Castillo and Donald Caigas within five days from notice
of this decision.
3. To cause to be produced to this Court all medical reports, records and
charts, reports of any treatment given or recommended and medicines
prescribed, if any, to the petitioners, to include a list of medical and (sic)
personnel (military and civilian) who attended to them from February 14,
2006 until August 12, 2007 within five days from notice of this decision.
The compliance with this decision shall be made under the signature and oath
of respondent AFP Chief of Staff or his duly authorized deputy, the latters
authority to be express and made apparent on the face of the sworn
compliance with this directive.
SO ORDERED.[10]
Hence, this appeal. In resolving this appeal, we first unfurl the facts as alleged
by herein respondents:
Respondent Raymond Manalo recounted that about one or two weeks before
February 14, 2006, several uniformed and armed soldiers and members of the
CAFGU summoned to a meeting all the residents of their barangay in San
Idelfonso, Bulacan. Respondents were not able to attend as they were not
informed of the gathering, but Raymond saw some of the soldiers when he
passed by the barangay hall.[11]
On February 14, 2006, Raymond was sleeping in their house in Buhol na
Mangga, San Ildefonso, Bulacan. At past noon, several armed soldiers
wearing white shirts, fatigue pants and army boots, entered their house and
roused him. They asked him if he was Bestre, but his mother, Ester Manalo,
replied that he was Raymond, not Bestre. The armed soldier slapped him on
both cheeks and nudged him in the stomach. He was then handcuffed, brought
to the rear of his house, and forced to the ground face down. He was kicked
on the hip, ordered to stand and face up to the light, then forcibly brought
near the road. He told his mother to follow him, but three soldiers stopped her
and told her to stay.[12]
Among the men who came to take him, Raymond recognized brothers
Michael de la Cruz, Madning de la Cruz, Puti de la Cruz, and Pula de la Cruz,
who all acted as lookout. They were all members of the CAFGU and residing
in Manuzon, San Ildefonso, Bulacan. He also recognized brothers Randy
Mendoza and Rudy Mendoza, also members of the CAFGU. While he was
being forcibly taken, he also saw outside of his house two barangay
councilors, Pablo Cunanan and Bernardo Lingasa, with some soldiers and
armed men.[13]
The men forced Raymond into a white L300 van. Once inside, he was
blindfolded. Before being blindfolded, he saw the faces of the soldiers who
took him. Later, in his 18 months of captivity, he learned their names. The
one who drove the van was Rizal Hilario alias Rollie Castillo, whom he
estimated was about 40 years of age or older. The leader of the team who
entered his house and abducted him was Ganata. He was tall, thin, curly-
haired and a bit old. Another one of his abductors was George who was tall,
thin, white-skinned and about 30 years old.[14]
The van drove off, then came to a stop. A person was brought inside the van
and made to sit beside Raymond. Both of them were beaten up. On the road,
he recognized the voice of the person beside him as his brother Reynaldos.
The van stopped several times until they finally arrived at a house. Raymond
and Reynaldo were each brought to a different room. With the doors of their
rooms left open, Raymond saw several soldiers continuously hitting his
brother Reynaldo on the head and other parts of his body with the butt of their
guns for about 15 minutes. After which, Reynaldo was brought to his
(Raymonds) room and it was his (Raymonds) turn to be beaten up in the other
room. The soldiers asked him if he was a member of the New Peoples Army.
Each time he said he was not, he was hit with the butt of their guns. He was
questioned where his comrades were, how many soldiers he had killed, and
how many NPA members he had helped. Each time he answered none, they
hit him.[15]
In the next days, Raymonds interrogators appeared to be high officials as the
soldiers who beat him up would salute them, call them sir, and treat them with
respect. He was in blindfolds when interrogated by the high officials, but he
saw their faces when they arrived and before the blindfold was put on. He
12
noticed that the uniform of the high officials was different from those of the
other soldiers. One of those officials was tall and thin, wore white pants, tie,
and leather shoes, instead of combat boots. He spoke in Tagalog and knew
much about his parents and family, and a habeas corpus case filed in
connection with the respondents abduction.[16] While these officials
interrogated him, Raymond was not manhandled. But once they had left, the
soldier guards beat him up. When the guards got drunk, they also manhandled
respondents. During this time, Raymond was fed only at night, usually with
left-over and rotten food.[17]
On the third week of respondents detention, two men arrived while Raymond
was sleeping and beat him up. They doused him with urine and hot water, hit
his stomach with a piece of wood, slapped his forehead twice with a .45 pistol,
punched him on the mouth, and burnt some parts of his body with a burning
wood. When he could no longer endure the torture and could hardly breathe,
they stopped. They then subjected Reynaldo to the same ordeal in another
room. Before their torturers left, they warned Raymond that they would come
back the next day and kill him.[18]
The following night, Raymond attempted to escape. He waited for the guards
to get drunk, then made noise with the chains put on him to see if they were
still awake. When none of them came to check on him, he managed to free
his hand from the chains and jumped through the window. He passed through
a helipad and firing range and stopped near a fishpond where he used stones
to break his chains. After walking through a forested area, he came near a
river and an Iglesia ni Kristo church. He talked to some women who were
doing the laundry, asked where he was and the road to Gapan. He was told
that he was in Fort Magsaysay.[19] He reached the highway, but some
soldiers spotted him, forcing him to run away. The soldiers chased him and
caught up with him. They brought him to another place near the entrance of
what he saw was Fort Magsaysay. He was boxed repeatedly, kicked, and hit
with chains until his back bled. They poured gasoline on him. Then a so-
called Mam or Madam suddenly called, saying that she wanted to see
Raymond before he was killed. The soldiers ceased the torture and he was
returned inside Fort Magsaysay where Reynaldo was detained.[20]
For some weeks, the respondents had a respite from all the torture. Their
wounds were treated. When the wounds were almost healed, the torture
resumed, particularly when respondents guards got drunk.[21]
Raymond recalled that sometime in April until May 2006, he was detained in
a room enclosed by steel bars. He stayed all the time in that small room
measuring 1 x 2 meters, and did everything there, including urinating,
removing his bowels, bathing, eating and sleeping. He counted that eighteen
people[22] had been detained in that bartolina, including his brother
Reynaldo and himself.[23]
For about three and a half months, the respondents were detained in Fort
Magsaysay. They were kept in a small house with two rooms and a kitchen.
One room was made into the bartolina. The house was near the firing range,
helipad and mango trees. At dawn, soldiers marched by their house. They
were also sometimes detained in what he only knew as the DTU.[24]
At the DTU, a male doctor came to examine respondents. He checked their
body and eyes, took their urine samples and marked them. When asked how
they were feeling, they replied that they had a hard time urinating, their
stomachs were aching, and they felt other pains in their body. The next day,
two ladies in white arrived. They also examined respondents and gave them
medicines, including orasol, amoxicillin and mefenamic acid. They brought
with them the results of respondents urine test and advised them to drink
plenty of water and take their medicine. The two ladies returned a few more
times. Thereafter, medicines were sent through the master of the DTU,
Master Del Rosario alias Carinyoso at Puti. Respondents were kept in the
DTU for about two weeks. While there, he met a soldier named Efren who
said that Gen. Palparan ordered him to monitor and take care of them.[25]
One day, Rizal Hilario fetched respondents in a Revo vehicle. They, along
with Efren and several other armed men wearing fatigue suits, went to a
detachment in Pinaud, San Ildefonso, Bulacan. Respondents were detained
for one or two weeks in a big two-storey house. Hilario and Efren stayed with
them. While there, Raymond was beaten up by Hilarios men.[26]
From Pinaud, Hilario and Efren brought respondents to Sapang, San Miguel,
Bulacan on board the Revo. They were detained in a big unfinished house
inside the compound of Kapitan for about three months. When they arrived
in Sapang, Gen. Palparan talked to them. They were brought out of the house
to a basketball court in the center of the compound and made to sit. Gen.
Palparan was already waiting, seated. He was about two arms length away
from respondents. He began by asking if respondents felt well already, to
which Raymond replied in the affirmative. He asked Raymond if he knew
13
him. Raymond lied that he did not. He then asked Raymond if he would be
scared if he were made to face Gen. Palparan. Raymond responded that he
would not be because he did not believe that Gen. Palparan was an evil
man.[27]
Raymond narrated his conversation with Gen. Palparan in his affidavit, viz:
Tinanong ako ni Gen. Palparan, Ngayon na kaharap mo na ako, di ka ba
natatakot sa akin?
Sumagot akong, Siyempre po, natatakot din
Sabi ni Gen. Palparan: Sige, bibigyan ko kayo ng isang pagkakataon na
mabuhay, bastat sundin nyo ang lahat ng sasabihin ko sabihin mo sa
magulang mo huwag pumunta sa mga rali, sa hearing, sa Karapatan at sa
Human Right dahil niloloko lang kayo. Sabihin sa magulang at lahat sa bahay
na huwag paloko doon. Tulungan kami na kausapin si Bestre na sumuko na
sa gobyerno.[28]
Respondents agreed to do as Gen. Palparan told them as they felt they could
not do otherwise. At about 3:00 in the morning, Hilario, Efren and the formers
men - the same group that abducted them - brought them to their parents
house. Raymond was shown to his parents while Reynaldo stayed in the Revo
because he still could not walk. In the presence of Hilario and other soldiers,
Raymond relayed to his parents what Gen. Palparan told him. As they were
afraid, Raymonds parents acceded. Hilario threatened Raymonds parents that
if they continued to join human rights rallies, they would never see their
children again. The respondents were then brought back to Sapang.[29]
When respondents arrived back in Sapang, Gen. Palparan was about to leave.
He was talking with the four masters who were there: Arman, Ganata, Hilario
and Cabalse.[30] When Gen. Palparan saw Raymond, he called for him. He
was in a big white vehicle. Raymond stood outside the vehicle as Gen.
Palparan told him to gain back his strength and be healthy and to take the
medicine he left for him and Reynaldo. He said the medicine was expensive
at Php35.00 each, and would make them strong. He also said that they should
prove that they are on the side of the military and warned that they would not
be given another chance.[31] During his testimony, Raymond identified Gen.
Palparan by his picture.[32]
One of the soldiers named Arman made Raymond take the medicine left by
Gen. Palparan. The medicine, named Alive, was green and yellow. Raymond
and Reynaldo were each given a box of this medicine and instructed to take
one capsule a day. Arman checked if they were getting their dose of the
medicine. The Alive made them sleep each time they took it, and they felt
heavy upon waking up.[33]
After a few days, Hilario arrived again. He took Reynaldo and left Raymond
at Sapang. Arman instructed Raymond that while in Sapang, he should
introduce himself as Oscar, a military trainee from Sariaya, Quezon, assigned
in Bulacan. While there, he saw again Ganata, one of the men who abducted
him from his house, and got acquainted with other military men and
civilians.[34]
After about three months in Sapang, Raymond was brought to Camp Tecson
under the 24th Infantry Battalion. He was fetched by three unidentified men
in a big white vehicle. Efren went with them. Raymond was then blindfolded.
After a 30-minute ride, his blindfold was removed. Chains were put on him
and he was kept in the barracks.[35]
The next day, Raymonds chains were removed and he was ordered to clean
outside the barracks. It was then he learned that he was in a detachment of
the Rangers. There were many soldiers, hundreds of them were training. He
was also ordered to clean inside the barracks. In one of the rooms therein, he
met Sherlyn Cadapan from Laguna. She told him that she was a student of
the University of the Philippines and was abducted in Hagonoy, Bulacan. She
confided that she had been subjected to severe torture and raped. She was
crying and longing to go home and be with her parents. During the day, her
chains were removed and she was made to do the laundry.[36]
After a week, Reynaldo was also brought to Camp Tecson. Two days from
his arrival, two other captives, Karen Empeo and Manuel Merino, arrived.
Karen and Manuel were put in the room with Allan whose name they later
came to know as Donald Caigas, called master or commander by his men in
the 24th Infantry Battalion. Raymond and Reynaldo were put in the adjoining
room. At times, Raymond and Reynaldo were threatened, and Reynaldo was
beaten up. In the daytime, their chains were removed, but were put back on
at night. They were threatened that if they escaped, their families would all
be killed.[37]
14

On or about October 6, 2006, Hilario arrived in Camp Tecson. He told the
detainees that they should be thankful they were still alive and should
continue along their renewed life. Before the hearing of November 6 or 8,
2006, respondents were brought to their parents to instruct them not to attend
the hearing. However, their parents had already left for Manila. Respondents
were brought back to Camp Tecson. They stayed in that camp from
September 2006 to November 2006, and Raymond was instructed to continue
using the name Oscar and holding himself out as a military trainee. He got
acquainted with soldiers of the 24th Infantry Battalion whose names and
descriptions he stated in his affidavit.[38]
On November 22, 2006, respondents, along with Sherlyn, Karen, and
Manuel, were transferred to a camp of the 24th Infantry Battalion in Limay,
Bataan. There were many huts in the camp. They stayed in that camp until
May 8, 2007. Some soldiers of the battalion stayed with them. While there,
battalion soldiers whom Raymond knew as Mar and Billy beat him up and hit
him in the stomach with their guns. Sherlyn and Karen also suffered
enormous torture in the camp. They were all made to clean, cook, and help in
raising livestock.[39]
Raymond recalled that when Operation Lubog was launched, Caigas and
some other soldiers brought him and Manuel with them to take and kill all
sympathizers of the NPA. They were brought to Barangay Bayan-bayanan,
Bataan where he witnessed the killing of an old man doing kaingin. The
soldiers said he was killed because he had a son who was a member of the
NPA and he coddled NPA members in his house.[40] Another time, in
another Operation Lubog, Raymond was brought to Barangay Orion in a
house where NPA men stayed. When they arrived, only the old man of the
house who was sick was there. They spared him and killed only his son right
before Raymonds eyes.[41]
From Limay, Raymond, Reynaldo, Sherlyn, Karen, and Manuel were
transferred to Zambales, in a safehouse near the sea. Caigas and some of his
men stayed with them. A retired army soldier was in charge of the house.
Like in Limay, the five detainees were made to do errands and chores. They
stayed in Zambales from May 8 or 9, 2007 until June 2007.[42]
In June 2007, Caigas brought the five back to the camp in Limay. Raymond,
Reynaldo, and Manuel were tasked to bring food to detainees brought to the
camp. Raymond narrated what he witnessed and experienced in the camp,
viz:
Isang gabi, sinabihan kami ni Donald (Caigas) na matulog na kami. Nakita
ko si Donald na inaayos ang kanyang baril, at nilagyan ng silenser. Sabi ni
Donald na kung mayroon man kaming makita o marinig, walang nangyari.
Kinaumagahan, nakita naming ang bangkay ng isa sa mga bihag na dinala sa
kampo. Mayroong binuhos sa kanyang katawan at itoy sinunog. Masansang
ang amoy.
Makaraan ang isang lingo, dalawang bangkay and ibinaba ng mga
unipormadong sundalo mula sa 6 x 6 na trak at dinala sa loob ng kampo. May
naiwang mga bakas ng dugo habang hinihila nila ang mga bangkay. Naamoy
ko iyon nang nililinis ang bakas.
Makalipas ang isa o dalawang lingo, may dinukot sila na dalawang Ita. Itinali
sila sa labas ng kubo, piniringan, ikinadena at labis na binugbog. Nakita kong
nakatakas ang isa sa kanila at binaril siya ng sundalo ngunit hindi siya
tinamaan. Iyong gabi nakita kong pinatay nila iyong isang Ita malapit sa Post
3; sinilaban ang bangkay at ibinaon ito.
Pagkalipas ng halos 1 buwan, 2 pang bangkay ang dinala sa kampo. Ibinaba
ang mga bangkay mula sa pick up trak, dinala ang mga bangkay sa labas ng
bakod. Kinaumagahan nakita kong mayroong sinilaban, at
napakamasangsang ang amoy.
May nakilala rin akong 1 retiradong koronel at 1 kasama niya. Pinakain ko
sila. Sabi nila sa akin na dinukot sila sa Bataan. Iyong gabi, inilabas sila at
hindi ko na sila nakita.
xxx xxx xxx
Ikinadena kami ng 3 araw. Sa ikatlong araw, nilabas ni Lat si Manuel dahil
kakausapin daw siya ni Gen. Palparan. Nakapiring si Manuel, wala siyang
suot pang-itaas, pinosasan. Nilakasan ng mga sundalo ang tunog na galing sa
istiryo ng sasakyan. Di nagtagal, narinig ko ang hiyaw o ungol ni Manuel.
Sumilip ako sa isang haligi ng kamalig at nakita kong sinisilaban si Manuel.
15
Kinaumagahan, naka-kadena pa kami. Tinanggal ang mga kadena mga 3 o 4
na araw pagkalipas. Sinabi sa amin na kaya kami nakakadena ay dahil
pinagdedesisyunan pa ng mga sundalo kung papatayin kami o hindi.
Tinanggal ang aming kadena. Kinausap kami ni Donald. Tinanong kami kung
ano ang sabi ni Manuel sa amin. Sabi ni Donald huwag na raw naming
hanapin ang dalawang babae at si Manuel, dahil magkakasama na yung tatlo.
Sabi pa ni Donald na kami ni Reynaldo ay magbagong buhay at ituloy namin
ni Reynaldo ang trabaho. Sa gabi, hindi na kami kinakadena.[43]
On or about June 13, 2007, Raymond and Reynaldo were brought to
Pangasinan, ostensibly to raise poultry for Donald (Caigas). Caigas told
respondents to also farm his land, in exchange for which, he would take care
of the food of their family. They were also told that they could farm a small
plot adjoining his land and sell their produce. They were no longer put in
chains and were instructed to use the names Rommel (for Raymond) and Rod
(for Reynaldo) and represent themselves as cousins from Rizal, Laguna.[44]
Respondents started to plan their escape. They could see the highway from
where they stayed. They helped farm adjoining lands for which they were
paid Php200.00 or Php400.00 and they saved their earnings. When they had
saved Php1,000.00 each, Raymond asked a neighbor how he could get a
cellular phone as he wanted to exchange text messages with a girl who lived
nearby. A phone was pawned to him, but he kept it first and did not use it.
They earned some more until they had saved Php1,400.00 between them.
There were four houses in the compound. Raymond and Reynaldo were
housed in one of them while their guards lived in the other three. Caigas
entrusted respondents to Nonong, the head of the guards. Respondents house
did not have electricity. They used a lamp. There was no television, but they
had a radio. In the evening of August 13, 2007, Nonong and his cohorts had
a drinking session. At about 1:00 a.m., Raymond turned up the volume of the
radio. When none of the guards awoke and took notice, Raymond and
Reynaldo proceeded towards the highway, leaving behind their sleeping
guards and barking dogs. They boarded a bus bound for Manila and were thus
freed from captivity.[45]
Reynaldo also executed an affidavit affirming the contents of Raymonds
affidavit insofar as they related to matters they witnessed together. Reynaldo
added that when they were taken from their house on February 14, 2006, he
saw the faces of his abductors before he was blindfolded with his shirt. He
also named the soldiers he got acquainted with in the 18 months he was
detained. When Raymond attempted to escape from Fort Magsaysay,
Reynaldo was severely beaten up and told that they were indeed members of
the NPA because Raymond escaped. With a .45 caliber pistol, Reynaldo was
hit on the back and punched in the face until he could no longer bear the pain.
At one point during their detention, when Raymond and Reynaldo were in
Sapang, Reynaldo was separated from Raymond and brought to Pinaud by
Rizal Hilario. He was kept in the house of Kapitan, a friend of Hilario, in a
mountainous area. He was instructed to use the name Rodel and to represent
himself as a military trainee from Meycauayan, Bulacan. Sometimes, Hilario
brought along Reynaldo in his trips. One time, he was brought to a market in
San Jose, del Monte, Bulacan and made to wait in the vehicle while Hilario
was buying. He was also brought to Tondo, Manila where Hilario delivered
boxes of Alive in different houses. In these trips, Hilario drove a black and
red vehicle. Reynaldo was blindfolded while still in Bulacan, but allowed to
remove the blindfold once outside the province. In one of their trips, they
passed by Fort Magsaysay and Camp Tecson where Reynaldo saw the sign
board, Welcome to Camp Tecson.[46]
Dr. Benito Molino, M.D., corroborated the accounts of respondents Raymond
and Reynaldo Manalo. Dr. Molino specialized in forensic medicine and was
connected with the Medical Action Group, an organization handling cases of
human rights violations, particularly cases where torture was involved. He
was requested by an NGO to conduct medical examinations on the
respondents after their escape. He first asked them about their ordeal, then
proceeded with the physical examination. His findings showed that the scars
borne by respondents were consistent with their account of physical injuries
inflicted upon them. The examination was conducted on August 15, 2007,
two days after respondents escape, and the results thereof were reduced into
writing. Dr. Molino took photographs of the scars. He testified that he
followed the Istanbul Protocol in conducting the examination.[47]
Petitioners dispute respondents account of their alleged abduction and torture.
In compliance with the October 25, 2007 Resolution of the Court, they filed
a Return of the Writ of Amparo admitting the abduction but denying any
involvement therein, viz:
16
13. Petitioners Raymond and Reynaldo Manalo were not at any time arrested,
forcibly abducted, detained, held incommunicado, disappeared or under the
custody by the military. This is a settled issue laid to rest in the habeas corpus
case filed in their behalf by petitioners parents before the Court of Appeals in
C.A.-G.R. SP No. 94431 against M/Sgt. Rizal Hilario aka Rollie Castillo, as
head of the 24th Infantry Battalion; Maj. Gen. Jovito Palparan, as
Commander of the 7th Infantry Division in Luzon; Lt. Gen. Hermogenes
Esperon, in his capacity as the Commanding General of the Philippine Army,
and members of the Citizens Armed Forces Geographical Unit (CAFGU),
namely: Michael dela Cruz, Puti dela Cruz, Madning dela Cruz, Pula dela
Cruz, Randy Mendoza and Rudy Mendoza. The respondents therein
submitted a return of the writ On July 4, 2006, the Court of Appeals dropped
as party respondents Lt. Gen. Hermogenes C. Esperon, Jr., then Commanding
General of the Philippine Army, and on September 19, 2006, Maj. (sic) Jovito
S. Palparan, then Commanding General, 7th Infantry Division, Philippine
Army, stationed at Fort Magsaysay, Palayan City, Nueva Ecija, upon a
finding that no evidence was introduced to establish their personal
involvement in the taking of the Manalo brothers. In a Decision dated June
27, 2007, it exonerated M/Sgt. Rizal Hilario aka Rollie Castillo for lack of
evidence establishing his involvement in any capacity in the disappearance
of the Manalo brothers, although it held that the remaining respondents were
illegally detaining the Manalo brothers and ordered them to release the
latter.[48]
Attached to the Return of the Writ was the affidavit of therein respondent
(herein petitioner) Secretary of National Defense, which attested that he
assumed office only on August 8, 2007 and was thus unaware of the Manalo
brothers alleged abduction. He also claimed that:
7. The Secretary of National Defense does not engage in actual military
directional operations, neither does he undertake command directions of the
AFP units in the field, nor in any way micromanage the AFP operations. The
principal responsibility of the Secretary of National Defense is focused in
providing strategic policy direction to the Department (bureaus and agencies)
including the Armed Forces of the Philippines;
8. In connection with the Writ of Amparo issued by the Honorable Supreme
Court in this case, I have directed the Chief of Staff, AFP to institute
immediate action in compliance with Section 9(d) of the Amparo Rule and to
submit report of such compliance Likewise, in a Memorandum Directive also
dated October 31, 2007, I have issued a policy directive addressed to the
Chief of Staff, AFP that the AFP should adopt the following rules of action
in the event the Writ of Amparo is issued by a competent court against any
members of the AFP:
(1) to verify the identity of the aggrieved party;
(2) to recover and preserve evidence related to the death or disappearance of
the person identified in the petition which may aid in the prosecution of the
person or persons responsible;
(3) to identify witnesses and obtain statements from them concerning the
death or disappearance;
(4) to determine the cause, manner, location and time of death or
disappearance as well as any pattern or practice that may have brought about
the death or disappearance;
(5) to identify and apprehend the person or persons involved in the death or
disappearance; and
(6) to bring the suspected offenders before a competent court.[49]
Therein respondent AFP Chief of Staff also submitted his own affidavit,
attached to the Return of the Writ, attesting that he received the above
directive of therein respondent Secretary of National Defense and that acting
on this directive, he did the following:
3.1. As currently designated Chief of Staff, Armed Forces of the Philippines
(AFP), I have caused to be issued directive to the units of the AFP for the
purpose of establishing the circumstances of the alleged disappearance and
the recent reappearance of the petitioners.
17
3.2. I have caused the immediate investigation and submission of the result
thereof to Higher headquarters and/or direct the immediate conduct of the
investigation on the matter by the concerned unit/s, dispatching Radio
Message on November 05, 2007, addressed to the Commanding General,
Philippine Army (Info: COMNOLCOM, CG, 71D PA and CO 24 IB PA). A
Copy of the Radio Message is attached as ANNEX 3 of this Affidavit.
3.3. We undertake to provide result of the investigations conducted or to be
conducted by the concerned unit relative to the circumstances of the alleged
disappearance of the persons in whose favor the Writ of Amparo has been
sought for as soon as the same has been furnished Higher headquarters.
3.4. A parallel investigation has been directed to the same units relative to
another Petition for the Writ of Amparo (G.R. No. 179994) filed at the
instance of relatives of a certain Cadapan and Empeo pending before the
Supreme Court.
3.5. On the part of the Armed Forces, this respondent will exert earnest efforts
to establish the surrounding circumstances of the disappearances of the
petitioners and to bring those responsible, including any military personnel if
shown to have participated or had complicity in the commission of the
complained acts, to the bar of justice, when warranted by the findings and the
competent evidence that may be gathered in the process.[50]
Also attached to the Return of the Writ was the affidavit of Lt. Col. Felipe
Anontado, INF (GSC) PA, earlier filed in G.R. No. 179994, another amparo
case in this Court, involving Cadapan, Empeo and Merino, which averred
among others, viz:
10) Upon reading the allegations in the Petition implicating the 24th Infantry
Batallion detachment as detention area, I immediately went to the 24th IB
detachment in Limay, Bataan and found no untoward incidents in the area nor
any detainees by the name of Sherlyn Cadapan, Karen Empeo and Manuel
Merino being held captive;
11) There was neither any reports of any death of Manuel Merino in the 24th
IB in Limay, Bataan;
12) After going to the 24th IB in Limay, Bataan, we made further inquiries
with the Philippine National Police, Limay, Bataan regarding the alleged
detentions or deaths and were informed that none was reported to their good
office;
13) I also directed Company Commander 1st Lt. Romeo Publico to inquire
into the alleged beachhouse in Iba, Zambales also alleged to be a detention
place where Sherlyn Cadapan, Karen Empeo and Manuel Merino were
detained. As per the inquiry, however, no such beachhouse was used as a
detention place found to have been used by armed men to detain Cadapan,
Empeo and Merino.[51]
It was explained in the Return of the Writ that for lack of sufficient time, the
affidavits of Maj. Gen Jovito S. Palparan (Ret.), M/Sgt. Rizal Hilario aka
Rollie Castillo, and other persons implicated by therein petitioners could not
be secured in time for the submission of the Return and would be
subsequently submitted.[52]
Herein petitioners presented a lone witness in the summary hearings, Lt. Col.
Ruben U. Jimenez, Provost Marshall, 7th Infantry Division, Philippine Army,
based in Fort Magsaysay, Palayan City, Nueva Ecija. The territorial
jurisdiction of this Division covers Nueva Ecija, Aurora, Bataan, Bulacan,
Pampanga, Tarlac and a portion of Pangasinan.[53] The 24th Infantry
Battalion is part of the 7th Infantry Division.[54]
On May 26, 2006, Lt. Col. Jimenez was directed by the Commanding General
of the 7th Infantry Division, Maj. Gen. Jovito Palaran,[55] through his
Assistant Chief of Staff,[56] to investigate the alleged abduction of the
respondents by CAFGU auxiliaries under his unit, namely: CAA Michael de
la Cruz; CAA Roman de la Cruz, aka Puti; CAA Maximo de la Cruz, aka
Pula; CAA Randy Mendoza; ex-CAA Marcelo de la Cruz aka Madning; and
a civilian named Rudy Mendoza. He was directed to determine: (1) the
veracity of the abduction of Raymond and Reynaldo Manalo by the alleged
elements of the CAFGU auxiliaries; and (2) the administrative liability of
said auxiliaries, if any.[57] Jimenez testified that this particular investigation
was initiated not by a complaint as was the usual procedure, but because the
Commanding General saw news about the abduction of the Manalo brothers
18
on the television, and he was concerned about what was happening within his
territorial jurisdiction.[58]
Jimenez summoned all six implicated persons for the purpose of having them
execute sworn statements and conducting an investigation on May 29,
2006.[59] The investigation started at 8:00 in the morning and finished at
10:00 in the evening.[60] The investigating officer, Technical Sgt. Eduardo
Lingad, took the individual sworn statements of all six persons on that day.
There were no other sworn statements taken, not even of the Manalo family,
nor were there other witnesses summoned and investigated[61] as according
to Jimenez, the directive to him was only to investigate the six persons.[62]
Jimenez was beside Lingad when the latter took the statements.[63] The six
persons were not known to Jimenez as it was in fact his first time to meet
them.[64] During the entire time that he was beside Lingad, a subordinate of
his in the Office of the Provost Marshall, Jimenez did not propound a single
question to the six persons.[65]
Jimenez testified that all six statements were taken on May 29, 2006, but
Marcelo Mendoza and Rudy Mendoza had to come back the next day to sign
their statements as the printing of their statements was interrupted by a power
failure. Jimenez testified that the two signed on May 30, 2006, but the jurats
of their statements indicated that they were signed on May 29, 2006.[66]
When the Sworn Statements were turned over to Jimenez, he personally
wrote his investigation report. He began writing it in the afternoon of May
30, 2006 and finished it on June 1, 2006.[67] He then gave his report to the
Office of the Chief of Personnel.[68]
As petitioners largely rely on Jimenezs Investigation Report dated June 1,
2006 for their evidence, the report is herein substantially quoted:
III. BACKGROUND OF THE CASE
4. This pertains to the abduction of RAYMOND MANALO and
REYNALDO MANALO who were forcibly taken from their respective
homes in Brgy. Buhol na Mangga, San Ildefonso, Bulacan on 14 February
2006 by unidentified armed men and thereafter were forcibly disappeared.
After the said incident, relatives of the victims filed a case for Abduction in
the civil court against the herein suspects: Michael dela Cruz, Madning dela
Cruz, Puti Dela Cruz, Pula Dela Cruz, Randy Mendoza and Rudy Mendoza
as alleged members of the Citizen Armed Forces Geographical Unit
(CAFGU).
a) Sworn statement of CAA Maximo F. dela Cruz, aka Pula dated 29 May
2006 in (Exhibit B) states that he was at Sitio Mozon, Brgy. Bohol na
Mangga, San Ildefonso, Bulacan doing the concrete building of a church
located nearby his residence, together with some neighbor thereat. He claims
that on 15 February 2006, he was being informed by Brgy. Kagawad Pablo
Umayan about the abduction of the brothers Raymond and Reynaldo Manalo.
As to the allegation that he was one of the suspects, he claims that they only
implicated him because he was a CAFGU and that they claimed that those
who abducted the Manalo brothers are members of the Military and CAFGU.
Subject vehemently denied any participation or involvement on the abduction
of said victims.
b) Sworn statement of CAA Roman dela Cruz y Faustino Aka Puti dtd 29
May 2006 in (Exhibit C) states that he is a resident of Sitio Muzon, Brgy.
Buhol na Mangga, San Ildefonso, Bulacan and a CAA member based at Biak
na Bato Detachment, San Miguel, Bulacan. He claims that Raymond and
Reynaldo Manalo being his neighbors are active members/sympathizers of
the CPP/NPA and he also knows their elder Rolando Manalo @ KA BESTRE
of being an NPA Leader operating in their province. That at the time of the
alleged abduction of the two (2) brothers and for accusing him to be one of
the suspects, he claims that on February 14, 2006, he was one of those
working at the concrete chapel being constructed nearby his residence. He
claims further that he just came only to know about the incident on other day
(15 Feb 06) when he was being informed by Kagawad Pablo Kunanan. That
subject CAA vehemently denied any participation about the incident and
claimed that they only implicated him because he is a member of the CAFGU.
c) Sworn Statement of CAA Randy Mendoza y Lingas dated 29 May 2006 in
(Exhibit O) states that he is a resident of Brgy. Buhol na Mangga, San
Ildefonso, Bulacan and a member of CAFGU based at Biak na Bato
Detachment. That being a neighbor, he was very much aware about the
background of the two (2) brothers Raymond and Reynaldo as active
supporters of the CPP NPA in their Brgy. and he also knew their elder brother
KUMANDER BESTRE TN: Rolando Manalo. Being one of the accused, he
claims that on 14 February 2006, he was at Brgy. Magmarate, San Miguel,
Bulacan in the house of his aunt and he learned only about the incident when
he arrived home in their place. He claims further that the only reason why
19
they implicated him was due to the fact that his mother has filed a criminal
charge against their brother Rolando Manalo @ KA BESTRE who is an NPA
Commander who killed his father and for that reason they implicated him in
support of their brother. Subject CAA vehemently denied any involvement
on the abduction of said Manalo brothers.
d) Sworn Statement of Rudy Mendoza y Lingasa dated May 29, 2006 in
(Exhibit E) states that he is a resident of Brgy. Marungko, Angat, Bulacan.
He claims that Raymond and Reynaldo Manalo are familiar to him being his
barriomate when he was still unmarried and he knew them since childhood.
Being one of the accused, he claims that on 14 February 2006, he was at his
residence in Brgy. Marungko, Angat, Bulacan. He claims that he was being
informed only about the incident lately and he was not aware of any reason
why the two (2) brothers were being abducted by alleged members of the
military and CAFGU. The only reason he knows why they implicated him
was because there are those people who are angry with their family
particularly victims of summary execution (killing) done by their brother @
KA Bestre Rolando Manalo who is an NPA leader. He claims further that it
was their brother @ KA BESTRE who killed his father and he was living
witness to that incident. Subject civilian vehemently denied any involvement
on the abduction of the Manalo brothers.
e) Sworn statement of Ex-CAA Marcelo dala Cruz dated 29 May 2006 in
(Exhibit F) states that he is a resident of Sitio Muzon, Brgy. Buhol na
Mangga, San Ildefonso, Bulacan, a farmer and a former CAA based at Biak
na Bato, San Miguel, Bulacan. He claims that Raymond and Reynaldo
Manalo are familiar to him being their barrio mate. He claims further that
they are active supporters of CPP/NPA and that their brother Rolando Manalo
@ KA BESTRE is an NPA leader. Being one of the accused, he claims that
on 14 February 2006, he was in his residence at Sitio Muzon, Brgy. Buhol na
Mangga, San Ildefonso, Bulacan. That he vehemently denied any
participation of the alleged abduction of the two (2) brothers and learned only
about the incident when rumors reached him by his barrio mates. He claims
that his implication is merely fabricated because of his relationship to Roman
and Maximo who are his brothers.
f) Sworn statement of Michael dela Cruz y Faustino dated 29 May 2006 in
(Exhibit G) states that he is a resident of Sitio Muzon, Brgy. Buhol na
Mangga, San Ildefonso, Bulacan, the Chief of Brgy. Tanod and a CAFGU
member based at Biak na Bato Detachment, San Miguel, Bulacan. He claims
that he knew very well the brothers Raymond and Reynaldo Manalo in their
barangay for having been the Tanod Chief for twenty (20) years. He alleged
further that they are active supporters or sympathizers of the CPP/NPA and
whose elder brother Rolando Manalo @ KA BESTRE is an NPA leader
operating within the area. Being one of the accused, he claims that on 14 Feb
2006 he was helping in the construction of their concrete chapel in their place
and he learned only about the incident which is the abduction of Raymond
and Reynaldo Manalo when one of the Brgy. Kagawad in the person of Pablo
Cunanan informed him about the matter. He claims further that he is truly
innocent of the allegation against him as being one of the abductors and he
considers everything fabricated in order to destroy his name that remains
loyal to his service to the government as a CAA member.
IV. DISCUSSION
5. Based on the foregoing statements of respondents in this particular case,
the proof of linking them to the alleged abduction and disappearance of
Raymond and Reynaldo Manalo that transpired on 14 February 2006 at Sitio
Muzon, Brgy. Buhol na Mangga, San Ildefonso, Bulacan, is unsubstantiated.
Their alleged involvement theretofore to that incident is considered doubtful,
hence, no basis to indict them as charged in this investigation.
Though there are previous grudges between each families (sic) in the past to
quote: the killing of the father of Randy and Rudy Mendoza by @ KA
BESTRE TN: Rolando Manalo, this will not suffice to establish a fact that
they were the ones who did the abduction as a form of revenge. As it was also
stated in the testimony of other accused claiming that the Manalos are active
sympathizers/supporters of the CPP/NPA, this would not also mean,
however, that in the first place, they were in connivance with the abductors.
Being their neighbors and as members of CAFGUs, they ought to be vigilant
in protecting their village from any intervention by the leftist group, hence
inside their village, they were fully aware of the activities of Raymond and
Reynaldo Manalo in so far as their connection with the CPP/NPA is
concerned.
V. CONCLUSION
6. Premises considered surrounding this case shows that the alleged charges
of abduction committed by the above named respondents has not been
established in this investigation. Hence, it lacks merit to indict them for any
20
administrative punishment and/or criminal liability. It is therefore concluded
that they are innocent of the charge.
VI. RECOMMENDATIONS
7. That CAAs Michael F. dela Cruz, Maximo F. Dela Cruz, Roman dela Cruz,
Randy Mendoza, and two (2) civilians Maximo F. Dela Cruz and Rudy L.
Mendoza be exonerated from the case.
8. Upon approval, this case can be dropped and closed.[69]
In this appeal under Rule 45, petitioners question the appellate courts
assessment of the foregoing evidence and assail the December 26, 2007
Decision on the following grounds, viz:
I.
THE COURT OF APPEALS SERIOUSLY AND GRIEVOUSLY ERRED
IN BELIEVING AND GIVING FULL FAITH AND CREDIT TO THE
INCREDIBLE, UNCORROBORATED, CONTRADICTED, AND
OBVIOUSLY SCRIPTED, REHEARSED AND SELF-SERVING
AFFIDAVIT/TESTIMONY OF HEREIN RESPONDENT RAYMOND
MANALO.
II.
THE COURT OF APPEALS SERIOUSLY AND GRIEVOUSLY ERRED
IN REQUIRING RESPONDENTS (HEREIN PETITIONERS) TO: (A)
FURNISH TO THE MANALO BROTHER(S) AND TO THE COURT OF
APPEALS ALL OFFICIAL AND UNOFFICIAL REPORTS OF THE
INVESTIGATION UNDERTAKEN IN CONNECTION WITH THEIR
CASE, EXCEPT THOSE ALREADY IN FILE WITH THE COURT; (B)
CONFIRM IN WRITING THE PRESENT PLACES OF OFFICIAL
ASSIGNMENT OF M/SGT. HILARIO aka ROLLIE CASTILLO AND
DONALD CAIGAS; AND (C) CAUSE TO BE PRODUCED TO THE
COURT OF APPEALS ALL MEDICAL REPORTS, RECORDS AND
CHARTS, AND REPORTS OF ANY TREATMENT GIVEN OR
RECOMMENDED AND MEDICINES PRESCRIBED, IF ANY, TO THE
MANALO BROTHERS, TO INCLUDE A LIST OF MEDICAL
PERSONNEL (MILITARY AND CIVILIAN) WHO ATTENDED TO
THEM FROM FEBRUARY 14, 2006 UNTIL AUGUST 12, 2007.[70]
The case at bar is the first decision on the application of the Rule on the Writ
of Amparo (Amparo Rule). Let us hearken to its beginning.
The adoption of the Amparo Rule surfaced as a recurring proposition in the
recommendations that resulted from a two-day National Consultative Summit
on Extrajudicial Killings and Enforced Disappearances sponsored by the
Court on July 16-17, 2007. The Summit was envisioned to provide a broad
and fact-based perspective on the issue of extrajudicial killings and enforced
disappearances,[71] hence representatives from all sides of the political and
social spectrum, as well as all the stakeholders in the justice system[72]
participated in mapping out ways to resolve the crisis.
On October 24, 2007, the Court promulgated the Amparo Rule in light of the
prevalence of extralegal killing and enforced disappearances.[73] It was an
exercise for the first time of the Courts expanded power to promulgate rules
to protect our peoples constitutional rights, which made its maiden
appearance in the 1987 Constitution in response to the Filipino experience of
the martial law regime.[74] As the Amparo Rule was intended to address the
intractable problem of extralegal killings and enforced disappearances, its
coverage, in its present form, is confined to these two instances or to threats
thereof. Extralegal killings are killings committed without due process of law,
i.e., without legal safeguards or judicial proceedings.[75] On the other hand,
enforced disappearances are attended by the following characteristics: an
arrest, detention or abduction of a person by a government official or
organized groups or private individuals acting with the direct or indirect
acquiescence of the government; the refusal of the State to disclose the fate
or whereabouts of the person concerned or a refusal to acknowledge the
deprivation of liberty which places such persons outside the protection of
law.[76]
21

The writ of amparo originated in Mexico. Amparo literally means protection
in Spanish.[77] In 1837, de Tocquevilles Democracy in America became
available in Mexico and stirred great interest. Its description of the practice
of judicial review in the U.S. appealed to many Mexican jurists.[78] One of
them, Manuel Crescencio Rejn, drafted a constitutional provision for his
native state, Yucatan,[79] which granted judges the power to protect all
persons in the enjoyment of their constitutional and legal rights. This idea
was incorporated into the national constitution in 1847, viz:
The federal courts shall protect any inhabitant of the Republic in the exercise
and preservation of those rights granted to him by this Constitution and by
laws enacted pursuant hereto, against attacks by the Legislative and
Executive powers of the federal or state governments, limiting themselves to
granting protection in the specific case in litigation, making no general
declaration concerning the statute or regulation that motivated the
violation.[80]
Since then, the protection has been an important part of Mexican
constitutionalism.[81] If, after hearing, the judge determines that a
constitutional right of the petitioner is being violated, he orders the official,
or the officials superiors, to cease the violation and to take the necessary
measures to restore the petitioner to the full enjoyment of the right in
question. Amparo thus combines the principles of judicial review derived
from the U.S. with the limitations on judicial power characteristic of the civil
law tradition which prevails in Mexico. It enables courts to enforce the
constitution by protecting individual rights in particular cases, but prevents
them from using this power to make law for the entire nation.[82]
The writ of amparo then spread throughout the Western Hemisphere,
gradually evolving into various forms, in response to the particular needs of
each country.[83] It became, in the words of a justice of the Mexican Federal
Supreme Court, one piece of Mexicos self-attributed task of conveying to the
worlds legal heritage that institution which, as a shield of human dignity, her
own painful history conceived.[84] What began as a protection against acts
or omissions of public authorities in violation of constitutional rights later
evolved for several purposes: (1) amparo libertad for the protection of
personal freedom, equivalent to the habeas corpus writ; (2) amparo contra
leyes for the judicial review of the constitutionality of statutes; (3) amparo
casacion for the judicial review of the constitutionality and legality of a
judicial decision; (4) amparo administrativo for the judicial review of
administrative actions; and (5) amparo agrario for the protection of peasants
rights derived from the agrarian reform process.[85]
In Latin American countries, except Cuba, the writ of amparo has been
constitutionally adopted to protect against human rights abuses especially
committed in countries under military juntas. In general, these countries
adopted an all-encompassing writ to protect the whole gamut of constitutional
rights, including socio-economic rights.[86] Other countries like Colombia,
Chile, Germany and Spain, however, have chosen to limit the protection of
the writ of amparo only to some constitutional guarantees or fundamental
rights.[87]
In the Philippines, while the 1987 Constitution does not explicitly provide for
the writ of amparo, several of the above amparo protections are guaranteed
by our charter. The second paragraph of Article VIII, Section 1 of the 1987
Constitution, the Grave Abuse Clause, provides for the judicial power to
determine whether or not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government. The Clause accords a similar general
protection to human rights extended by the amparo contra leyes, amparo
casacion, and amparo administrativo. Amparo libertad is comparable to the
remedy of habeas corpus found in several provisions of the 1987
Constitution.[88] The Clause is an offspring of the U.S. common law
tradition of judicial review, which finds its roots in the 1803 case of Marbury
v. Madison.[89]
While constitutional rights can be protected under the Grave Abuse Clause
through remedies of injunction or prohibition under Rule 65 of the Rules of
Court and a petition for habeas corpus under Rule 102,[90] these remedies
may not be adequate to address the pestering problem of extralegal killings
and enforced disappearances. However, with the swiftness required to resolve
a petition for a writ of amparo through summary proceedings and the
availability of appropriate interim and permanent reliefs under the Amparo
Rule, this hybrid writ of the common law and civil law traditions - borne out
of the Latin American and Philippine experience of human rights abuses -
offers a better remedy to extralegal killings and enforced disappearances and
threats thereof. The remedy provides rapid judicial relief as it partakes of a
summary proceeding that requires only substantial evidence to make the
22
appropriate reliefs available to the petitioner; it is not an action to determine In delving into the veracity of the evidence, we need to mine and refine the
criminal guilt requiring proof beyond reasonable doubt, or liability for ore of petitioners cause of action, to determine whether the evidence
damages requiring preponderance of evidence, or administrative presented is metal-strong to satisfy the degree of proof required.
responsibility requiring substantial evidence that will require full and
exhaustive proceedings.[91] Section 1 of the Rule on the Writ of Amparo provides for the following causes
of action, viz:
The writ of amparo serves both preventive and curative roles in addressing
the problem of extralegal killings and enforced disappearances. It is Section 1. Petition. The petition for a writ of amparo is a remedy available to
preventive in that it breaks the expectation of impunity in the commission of any person whose right to life, liberty and security is violated or threatened
these offenses; it is curative in that it facilitates the subsequent punishment of with violation by an unlawful act or omission of a public official or employee,
perpetrators as it will inevitably yield leads to subsequent investigation and or of a private individual or entity.
action. In the long run, the goal of both the preventive and curative roles is to
deter the further commission of extralegal killings and enforced
disappearances.
The writ shall cover extralegal killings and enforced disappearances or threats
In the case at bar, respondents initially filed an action for Prohibition, thereof. (emphasis supplied)
Injunction, and Temporary Restraining Order[92] to stop petitioners and/or
their officers and agents from depriving the respondents of their right to
liberty and other basic rights on August 23, 2007,[93] prior to the
promulgation of the Amparo Rule. They also sought ancillary remedies Sections 17 and 18, on the other hand, provide for the degree of proof
including Protective Custody Orders, Appointment of Commissioner, required, viz:
Inspection and Access Orders and other legal and equitable remedies under
Article VIII, Section 5(5) of the 1987 Constitution and Rule 135, Section 6 Sec. 17. Burden of Proof and Standard of Diligence Required. The parties
of the Rules of Court. When the Amparo Rule came into effect on October shall establish their claims by substantial evidence.
24, 2007, they moved to have their petition treated as an amparo petition as
it would be more effective and suitable to the circumstances of the Manalo
brothers enforced disappearance. The Court granted their motion.
xxx xxx xxx
With this backdrop, we now come to the arguments of the petitioner.
Petitioners first argument in disputing the Decision of the Court of Appeals
states, viz: Sec. 18. Judgment. If the allegations in the petition are proven by substantial
evidence, the court shall grant the privilege of the writ and such reliefs as may
The Court of Appeals seriously and grievously erred in believing and giving be proper and appropriate; otherwise, the privilege shall be denied. (emphases
full faith and credit to the incredible uncorroborated, contradicted, and supplied)
obviously scripted, rehearsed and self-serving affidavit/testimony of herein
respondent Raymond Manalo.[94]

Substantial evidence has been defined as such relevant evidence as a

reasonable mind might accept as adequate to support a conclusion.[95]

23
After careful perusal of the evidence presented, we affirm the findings of the
Court of Appeals that respondents were abducted from their houses in Sito
Muzon, Brgy. Buhol na Mangga, San Ildefonso, Bulacan on February 14,
2006 and were continuously detained until they escaped on August 13, 2007.
The abduction, detention, torture, and escape of the respondents were
narrated by respondent Raymond Manalo in a clear and convincing manner.
His account is dotted with countless candid details of respondents harrowing
experience and tenacious will to escape, captured through his different senses
and etched in his memory. A few examples are the following: Sumilip ako sa
isang haligi ng kamalig at nakita kong sinisilaban si Manuel.[96] (N)ilakasan
ng mga sundalo ang tunog na galing sa istiryo ng sasakyan. Di nagtagal,
narinig ko ang hiyaw o ungol ni Manuel.[97] May naiwang mga bakas ng
dugo habang hinihila nila ang mga bangkay. Naamoy ko iyon nang nililinis
ang bakas.[98] Tumigil ako sa may palaisdaan kung saan ginamit ko ang bato
para tanggalin ang mga kadena.[99] Tinanong ko sa isang kapit-bahay kung
paano ako makakakuha ng cell phone; sabi ko gusto kong i-text ang isang
babae na nakatira sa malapit na lugar.[100]
We affirm the factual findings of the appellate court, largely based on
respondent Raymond Manalos affidavit and testimony, viz:
the abduction was perpetrated by armed men who were sufficiently identified
by the petitioners (herein respondents) to be military personnel and CAFGU
auxiliaries. Raymond recalled that the six armed men who barged into his
house through the rear door were military men based on their attire of fatigue
pants and army boots, and the CAFGU auxiliaries, namely: Michael de la
Cruz, Madning de la Cruz, Puti de la Cruz and Pula de la Cruz, all members
of the CAFGU and residents of Muzon, San Ildefonso, Bulacan, and the
brothers Randy Mendoza and Rudy Mendoza, also CAFGU members, served
as lookouts during the abduction. Raymond was sure that three of the six
military men were Ganata, who headed the abducting team, Hilario, who
drove the van, and George. Subsequent incidents of their long captivity, as
narrated by the petitioners, validated their assertion of the participation of the
elements of the 7th Infantry Division, Philippine Army, and their CAFGU
auxiliaries.
We are convinced, too, that the reason for the abduction was the suspicion
that the petitioners were either members or sympathizers of the NPA,
considering that the abductors were looking for Ka Bestre, who turned out to
be Rolando, the brother of petitioners.
The efforts exerted by the Military Command to look into the abduction were,
at best, merely superficial. The investigation of the Provost Marshall of the
7th Infantry Division focused on the one-sided version of the CAFGU
auxiliaries involved. This one-sidedness might be due to the fact that the
Provost Marshall could delve only into the participation of military personnel,
but even then the Provost Marshall should have refrained from outrightly
exculpating the CAFGU auxiliaries he perfunctorily investigated
Gen. Palparans participation in the abduction was also established. At the
very least, he was aware of the petitioners captivity at the hands of men in
uniform assigned to his command. In fact, he or any other officer tendered no
controversion to the firm claim of Raymond that he (Gen. Palparan) met them
in person in a safehouse in Bulacan and told them what he wanted them and
their parents to do or not to be doing. Gen. Palparans direct and personal role
in the abduction might not have been shown but his knowledge of the dire
situation of the petitioners during their long captivity at the hands of military
personnel under his command bespoke of his indubitable command policy
that unavoidably encouraged and not merely tolerated the abduction of
civilians without due process of law and without probable cause.
In the habeas proceedings, the Court, through the Former Special Sixth
Division (Justices Buzon, chairman; Santiago-Lagman, Sr., member; and
Romilla-Lontok, Jr., member/ponente.) found no clear and convincing
evidence to establish that M/Sgt. Rizal Hilario had anything to do with the
abduction or the detention. Hilarios involvement could not, indeed, be then
established after Evangeline Francisco, who allegedly saw Hilario drive the
van in which the petitioners were boarded and ferried following the
abduction, did not testify. (See the decision of the habeas proceedings at rollo,
p. 52)
However, in this case, Raymond attested that Hilario drove the white L-300
van in which the petitioners were brought away from their houses on
February 14, 2006. Raymond also attested that Hilario participated in
subsequent incidents during the captivity of the petitioners, one of which was
when Hilario fetched them from Fort Magsaysay on board a Revo and
conveyed them to a detachment in Pinaud, San Ildefonso, Bulacan where they
were detained for at least a week in a house of strong materials (Exhibit D,
rollo, p. 205) and then Hilario (along with Efren) brought them to Sapang,
San Miguel, Bulacan on board the Revo, to an unfinished house inside the
24
compound of Kapitan where they were kept for more or less three months.
(Exhibit D, rollo, p. 205) It was there where the petitioners came face to face
with Gen. Palparan. Hilario and Efren also brought the petitioners one early
morning to the house of the petitioners parents, where only Raymond was
presented to the parents to relay the message from Gen. Palparan not to join
anymore rallies. On that occasion, Hilario warned the parents that they would
not again see their sons should they join any rallies to denounce human rights
violations. (Exhibit D, rollo, pp. 205-206) Hilario was also among four
Master Sergeants (the others being Arman, Ganata and Cabalse) with whom
Gen. Palparan conversed on the occasion when Gen. Palparan required
Raymond to take the medicines for his health. (Exhibit D, rollo, p. 206) There
were other occasions when the petitioners saw that Hilario had a direct hand
in their torture.
It is clear, therefore, that the participation of Hilario in the abduction and
forced disappearance of the petitioners was established. The participation of
other military personnel like Arman, Ganata, Cabalse and Caigas, among
others, was similarly established.
xxx xxx xxx
As to the CAFGU auxiliaries, the habeas Court found them personally
involved in the abduction. We also do, for, indeed, the evidence of their
participation is overwhelming.[101]
We reject the claim of petitioners that respondent Raymond Manalos
statements were not corroborated by other independent and credible pieces of
evidence.[102] Raymonds affidavit and testimony were corroborated by the
affidavit of respondent Reynaldo Manalo. The testimony and medical reports
prepared by forensic specialist Dr. Molino, and the pictures of the scars left
by the physical injuries inflicted on respondents,[103] also corroborate
respondents accounts of the torture they endured while in detention.
Respondent Raymond Manalos familiarity with the facilities in Fort
Magsaysay such as the DTU, as shown in his testimony and confirmed by Lt.
Col. Jimenez to be the Division Training Unit,[104] firms up respondents
story that they were detained for some time in said military facility.
In Ortiz v. Guatemala,[105] a case decided by the Inter-American
Commission on Human Rights, the Commission considered similar evidence,
among others, in finding that complainant Sister Diana Ortiz was abducted
and tortured by agents of the Guatemalan government. In this case, Sister
Ortiz was kidnapped and tortured in early November 1989. The Commissions
findings of fact were mostly based on the consistent and credible statements,
written and oral, made by Sister Ortiz regarding her ordeal.[106] These
statements were supported by her recognition of portions of the route they
took when she was being driven out of the military installation where she was
detained.[107] She was also examined by a medical doctor whose findings
showed that the 111 circular second degree burns on her back and abrasions
on her cheek coincided with her account of cigarette burning and torture she
suffered while in detention.[108]
With the secret nature of an enforced disappearance and the torture
perpetrated on the victim during detention, it logically holds that much of the
information and evidence of the ordeal will come from the victims
themselves, and the veracity of their account will depend on their credibility
and candidness in their written and/or oral statements. Their statements can
be corroborated by other evidence such as physical evidence left by the
torture they suffered or landmarks they can identify in the places where they
were detained. Where powerful military officers are implicated, the hesitation
of witnesses to surface and testify against them comes as no surprise.
We now come to the right of the respondents to the privilege of the writ of
amparo. There is no quarrel that the enforced disappearance of both
respondents Raymond and Reynaldo Manalo has now passed as they have
escaped from captivity and surfaced. But while respondents admit that they
are no longer in detention and are physically free, they assert that they are not
free in every sense of the word[109] as their movements continue to be
restricted for fear that people they have named in their Judicial Affidavits and
testified against (in the case of Raymond) are still at large and have not been
held accountable in any way. These people are directly connected to the
Armed Forces of the Philippines and are, thus, in a position to threaten
respondents rights to life, liberty and security.[110] (emphasis supplied)
Respondents claim that they are under threat of being once again abducted,
kept captive or even killed, which constitute a direct violation of their right
to security of person.[111]
Elaborating on the right to security, in general, respondents point out that this
right is often associated with liberty; it is also seen as an expansion of rights
based on the prohibition against torture and cruel and unusual punishment.
Conceding that there is no right to security expressly mentioned in Article III
25
of the 1987 Constitution, they submit that their rights to be kept free from
torture and from incommunicado detention and solitary detention places[112]
fall under the general coverage of the right to security of person under the
writ of Amparo. They submit that the Court ought to give an expansive
recognition of the right to security of person in view of the State Policy under
Article II of the 1987 Constitution which enunciates that, The State values
the dignity of every human person and guarantees full respect for human
rights. Finally, to justify a liberal interpretation of the right to security of
person, respondents cite the teaching in Moncupa v. Enrile[113] that the right
to liberty may be made more meaningful only if there is no undue restraint
by the State on the exercise of that liberty[114] such as a requirement to report
under unreasonable restrictions that amounted to a deprivation of liberty[115]
or being put under monitoring and surveillance.[116]
In sum, respondents assert that their cause of action consists in the threat to
their right to life and liberty, and a violation of their right to security.
Let us put this right to security under the lens to determine if it has indeed
been violated as respondents assert. The right to security or the right to
security of person finds a textual hook in Article III, Section 2 of the 1987
Constitution which provides, viz:
Sec. 2. The right of the people to be secure in their persons, houses, papers
and effects against unreasonable searches and seizures of whatever nature and
for any purpose shall be inviolable, and no search warrant or warrant of arrest
shall issue except upon probable cause to be determined personally by the
judge
At the core of this guarantee is the immunity of ones person, including the
extensions of his/her person houses, papers, and effects against government
intrusion. Section 2 not only limits the states power over a persons home and
possessions, but more importantly, protects the privacy and sanctity of the
person himself.[117] The purpose of this provision was enunciated by the
Court in People v. CFI of Rizal, Branch IX, Quezon City, viz: [118]
The purpose of the constitutional guarantee against unreasonable searches
and seizures is to prevent violations of private security in person and property
and unlawful invasion of the security of the home by officers of the law acting
under legislative or judicial sanction and to give remedy against such
usurpation when attempted. (Adams v. New York, 192 U.S. 858; Alvero v.
Dizon, 76 Phil. 637 [1946]). The right to privacy is an essential condition to
the dignity and happiness and to the peace and security of every individual,
whether it be of home or of persons and correspondence. (Taada and Carreon,
Political Law of the Philippines, Vol. 2, 139 [1962]). The constitutional
inviolability of this great fundamental right against unreasonable searches
and seizures must be deemed absolute as nothing is closer to a mans soul than
the serenity of his privacy and the assurance of his personal security. Any
interference allowable can only be for the best causes and reasons.[119]
(emphases supplied)
While the right to life under Article III, Section 1[120] guarantees essentially
the right to be alive[121] - upon which the enjoyment of all other rights is
preconditioned - the right to security of person is a guarantee of the secure
quality of this life, viz: The life to which each person has a right is not a life
lived in fear that his person and property may be unreasonably violated by a
powerful ruler. Rather, it is a life lived with the assurance that the government
he established and consented to, will protect the security of his person and
property. The ideal of security in life and property pervades the whole history
of man. It touches every aspect of mans existence.[122] In a broad sense, the
right to security of person emanates in a persons legal and uninterrupted
enjoyment of his life, his limbs, his body, his health, and his reputation. It
includes the right to exist, and the right to enjoyment of life while existing,
and it is invaded not only by a deprivation of life but also of those things
which are necessary to the enjoyment of life according to the nature,
temperament, and lawful desires of the individual.[123]
A closer look at the right to security of person would yield various
permutations of the exercise of this right.
First, the right to security of person is freedom from fear. In its whereas
clauses, the Universal Declaration of Human Rights (UDHR) enunciates that
a world in which human beings shall enjoy freedom of speech and belief and
freedom from fear and want has been proclaimed as the highest aspiration of
the common people. (emphasis supplied) Some scholars postulate that
freedom from fear is not only an aspirational principle, but essentially an
individual international human right.[124] It is the right to security of person
as the word security itself means freedom from fear.[125] Article 3 of the
UDHR provides, viz:
26

Everyone has the right to life, liberty and security of person.[126] (emphasis
supplied)
In furtherance of this right declared in the UDHR, Article 9(1) of the
International Covenant on Civil and Political Rights (ICCPR) also provides
for the right to security of person, viz:
1. Everyone has the right to liberty and security of person. No one shall be
subjected to arbitrary arrest or detention. No one shall be deprived of his
liberty except on such grounds and in accordance with such procedure as are
established by law. (emphasis supplied)
The Philippines is a signatory to both the UDHR and the ICCPR.
In the context of Section 1 of the Amparo Rule, freedom from fear is the right
and any threat to the rights to life, liberty or security is the actionable wrong.
Fear is a state of mind, a reaction; threat is a stimulus, a cause of action. Fear
caused by the same stimulus can range from being baseless to well-founded
as people react differently. The degree of fear can vary from one person to
another with the variation of the prolificacy of their imagination, strength of
character or past experience with the stimulus. Thus, in the amparo context,
it is more correct to say that the right to security is actually the freedom from
threat. Viewed in this light, the threatened with violation Clause in the latter
part of Section 1 of the Amparo Rule is a form of violation of the right to
security mentioned in the earlier part of the provision.[127]
Second, the right to security of person is a guarantee of bodily and
psychological integrity or security. Article III, Section II of the 1987
Constitution guarantees that, as a general rule, ones body cannot be searched
or invaded without a search warrant.[128] Physical injuries inflicted in the
context of extralegal killings and enforced disappearances constitute more
than a search or invasion of the body. It may constitute dismemberment,
physical disabilities, and painful physical intrusion. As the degree of physical
injury increases, the danger to life itself escalates. Notably, in criminal law,
physical injuries constitute a crime against persons because they are an
affront to the bodily integrity or security of a person.[129]
Physical torture, force, and violence are a severe invasion of bodily integrity.
When employed to vitiate the free will such as to force the victim to admit,
reveal or fabricate incriminating information, it constitutes an invasion of
both bodily and psychological integrity as the dignity of the human person
includes the exercise of free will. Article III, Section 12 of the 1987
Constitution more specifically proscribes bodily and psychological invasion,
viz:
(2) No torture, force, violence, threat or intimidation, or any other means
which vitiate the free will shall be used against him (any person under
investigation for the commission of an offense). Secret detention places,
solitary, incommunicado or other similar forms of detention are prohibited.
Parenthetically, under this provision, threat and intimidation that vitiate the
free will - although not involving invasion of bodily integrity - nevertheless
constitute a violation of the right to security in the sense of freedom from
threat as afore-discussed.
Article III, Section 12 guarantees freedom from dehumanizing abuses of
persons under investigation for the commission of an offense. Victims of
enforced disappearances who are not even under such investigation should
all the more be protected from these degradations.
An overture to an interpretation of the right to security of person as a right
against torture was made by the European Court of Human Rights (ECHR)
in the recent case of Popov v. Russia.[130] In this case, the claimant, who
was lawfully detained, alleged that the state authorities had physically abused
him in prison, thereby violating his right to security of person. Article 5(1) of
the European Convention on Human Rights provides, viz: Everyone has the
right to liberty and security of person. No one shall be deprived of his liberty
save in the following cases and in accordance with a procedure prescribed by
law ... (emphases supplied) Article 3, on the other hand, provides that (n)o
one shall be subjected to torture or to inhuman or degrading treatment or
punishment. Although the application failed on the facts as the alleged ill-
treatment was found baseless, the ECHR relied heavily on the concept of
security in holding, viz:
27
...the applicant did not bring his allegations to the attention of domestic
authorities at the time when they could reasonably have been expected to take
measures in order to ensure his security and to investigate the circumstances
in question.
xxx xxx xxx
... the authorities failed to ensure his security in custody or to comply with
the procedural obligation under Art.3 to conduct an effective investigation
into his allegations.[131] (emphasis supplied)
The U.N. Committee on the Elimination of Discrimination against Women
has also made a statement that the protection of the bodily integrity of women
may also be related to the right to security and liberty, viz:
gender-based violence which impairs or nullifies the enjoyment by women of
human rights and fundamental freedoms under general international law or
under specific human rights conventions is discrimination within the meaning
of article 1 of the Convention (on the Elimination of All Forms of
Discrimination Against Women). These rights and freedoms include . . . the
right to liberty and security of person.[132]
Third, the right to security of person is a guarantee of protection of ones rights
by the government. In the context of the writ of amparo, this right is built into
the guarantees of the right to life and liberty under Article III, Section 1 of
the 1987 Constitution and the right to security of person (as freedom from
threat and guarantee of bodily and psychological integrity) under Article III,
Section 2. The right to security of person in this third sense is a corollary of
the policy that the State guarantees full respect for human rights under Article
II, Section 11 of the 1987 Constitution.[133] As the government is the chief
guarantor of order and security, the Constitutional guarantee of the rights to
life, liberty and security of person is rendered ineffective if government does
not afford protection to these rights especially when they are under threat.
Protection includes conducting effective investigations, organization of the
government apparatus to extend protection to victims of extralegal killings or
enforced disappearances (or threats thereof) and/or their families, and
bringing offenders to the bar of justice. The Inter-American Court of Human
Rights stressed the importance of investigation in the Velasquez Rodriguez
Case,[134] viz:
(The duty to investigate) must be undertaken in a serious manner and not as
a mere formality preordained to be ineffective. An investigation must have
an objective and be assumed by the State as its own legal duty, not as a step
taken by private interests that depends upon the initiative of the victim or his
family or upon their offer of proof, without an effective search for the truth
by the government.[135]
This third sense of the right to security of person as a guarantee of government
protection has been interpreted by the United Nations Human Rights
Committee[136] in not a few cases involving Article 9[137] of the ICCPR.
While the right to security of person appears in conjunction with the right to
liberty under Article 9, the Committee has ruled that the right to security of
person can exist independently of the right to liberty. In other words, there
need not necessarily be a deprivation of liberty for the right to security of
person to be invoked. In Delgado Paez v. Colombia,[138] a case involving
death threats to a religion teacher at a secondary school in Leticia, Colombia,
whose social views differed from those of the Apostolic Prefect of Leticia,
the Committee held, viz:
The first sentence of article 9 does not stand as a separate paragraph. Its
location as a part of paragraph one could lead to the view that the right to
security arises only in the context of arrest and detention. The travaux
prparatoires indicate that the discussions of the first sentence did indeed focus
on matters dealt with in the other provisions of article 9. The Universal
Declaration of Human Rights, in article 3, refers to the right to life, the right
to liberty and the right to security of the person. These elements have been
dealt with in separate clauses in the Covenant. Although in the Covenant the
only reference to the right of security of person is to be found in article 9,
there is no evidence that it was intended to narrow the concept of the right to
security only to situations of formal deprivation of liberty. At the same time,
States parties have undertaken to guarantee the rights enshrined in the
28
Covenant. It cannot be the case that, as a matter of law, States can ignore
known threats to the life of persons under their jurisdiction, just because that
he or she is not arrested or otherwise detained. States parties are under an
obligation to take reasonable and appropriate measures to protect them. An
interpretation of article 9 which would allow a State party to ignore threats to
the personal security of non-detained persons within its jurisdiction would
render totally ineffective the guarantees of the Covenant.[139] (emphasis
supplied)
The Paez ruling was reiterated in Bwalya v. Zambia,[140] which involved a
political activist and prisoner of conscience who continued to be intimidated,
harassed, and restricted in his movements following his release from
detention. In a catena of cases, the ruling of the Committee was of a similar
import: Bahamonde v. Equatorial Guinea,[141] involving discrimination,
intimidation and persecution of opponents of the ruling party in that state;
Tshishimbi v. Zaire,[142] involving the abduction of the complainants
husband who was a supporter of democratic reform in Zaire; Dias v.
Angola,[143] involving the murder of the complainants partner and the
harassment he (complainant) suffered because of his investigation of the
murder; and Chongwe v. Zambia,[144] involving an assassination attempt on
the chairman of an opposition alliance.
Similarly, the European Court of Human Rights (ECHR) has interpreted the
right to security not only as prohibiting the State from arbitrarily depriving
liberty, but imposing a positive duty on the State to afford protection of the
right to liberty.[145] The ECHR interpreted the right to security of person
under Article 5(1) of the European Convention of Human Rights in the
leading case on disappearance of persons, Kurt v. Turkey.[146] In this case,
the claimants son had been arrested by state authorities and had not been seen
since. The familys requests for information and investigation regarding his
whereabouts proved futile. The claimant suggested that this was a violation
of her sons right to security of person. The ECHR ruled, viz:
... any deprivation of liberty must not only have been effected in conformity
with the substantive and procedural rules of national law but must equally be
in keeping with the very purpose of Article 5, namely to protect the individual
from arbitrariness... Having assumed control over that individual it is
incumbent on the authorities to account for his or her whereabouts. For this
reason, Article 5 must be seen as requiring the authorities to take effective
measures to safeguard against the risk of disappearance and to conduct a
prompt effective investigation into an arguable claim that a person has been
taken into custody and has not been seen since.[147] (emphasis supplied)
Applying the foregoing concept of the right to security of person to the case
at bar, we now determine whether there is a continuing violation of
respondents right to security.
First, the violation of the right to security as freedom from threat to
respondents life, liberty and security.
While respondents were detained, they were threatened that if they escaped,
their families, including them, would be killed. In Raymonds narration, he
was tortured and poured with gasoline after he was caught the first time he
attempted to escape from Fort Magsaysay. A call from a certain Mam, who
wanted to see him before he was killed, spared him.
This time, respondents have finally escaped. The condition of the threat to be
killed has come to pass. It should be stressed that they are now free from
captivity not because they were released by virtue of a lawful order or
voluntarily freed by their abductors. It ought to be recalled that towards the
end of their ordeal, sometime in June 2007 when respondents were detained
in a camp in Limay, Bataan, respondents captors even told them that they
were still deciding whether they should be executed. Respondent Raymond
Manalo attested in his affidavit, viz:
Kinaumagahan, naka-kadena pa kami. Tinanggal ang mga kadena mga 3 o 4
na araw pagkalipas. Sinabi sa amin na kaya kami nakakadena ay dahil
pinagdedesisyunan pa ng mga sundalo kung papatayin kami o hindi.[148]
The possibility of respondents being executed stared them in the eye while
they were in detention. With their escape, this continuing threat to their life
is apparent, moreso now that they have surfaced and implicated specific
officers in the military not only in their own abduction and torture, but also
in those of other persons known to have disappeared such as Sherlyn
Cadapan, Karen Empeo, and Manuel Merino, among others.
29
Understandably, since their escape, respondents have been under
concealment and protection by private citizens because of the threat to their
life, liberty and security. The threat vitiates their free will as they are forced
to limit their movements or activities.[149] Precisely because respondents are
being shielded from the perpetrators of their abduction, they cannot be
expected to show evidence of overt acts of threat such as face-to-face
intimidation or written threats to their life, liberty and security. Nonetheless,
the circumstances of respondents abduction, detention, torture and escape
reasonably support a conclusion that there is an apparent threat that they will
again be abducted, tortured, and this time, even executed. These constitute
threats to their liberty, security, and life, actionable through a petition for a
writ of amparo.
Next, the violation of the right to security as protection by the government.
Apart from the failure of military elements to provide protection to
respondents by themselves perpetrating the abduction, detention, and torture,
they also miserably failed in conducting an effective investigation of
respondents abduction as revealed by the testimony and investigation report
of petitioners own witness, Lt. Col. Ruben Jimenez, Provost Marshall of the
7th Infantry Division.
The one-day investigation conducted by Jimenez was very limited,
superficial, and one-sided. He merely relied on the Sworn Statements of the
six implicated members of the CAFGU and civilians whom he met in the
investigation for the first time. He was present at the investigation when his
subordinate Lingad was taking the sworn statements, but he did not propound
a single question to ascertain the veracity of their statements or their
credibility. He did not call for other witnesses to test the alibis given by the
six implicated persons nor for the family or neighbors of the respondents.
In his affidavit, petitioner Secretary of National Defense attested that in a
Memorandum Directive dated October 31, 2007, he issued a policy directive
addressed to the AFP Chief of Staff, that the AFP should adopt rules of action
in the event the writ of amparo is issued by a competent court against any
members of the AFP, which should essentially include verification of the
identity of the aggrieved party; recovery and preservation of relevant
evidence; identification of witnesses and securing statements from them;
determination of the cause, manner, location and time of death or
disappearance; identification and apprehension of the person or persons
involved in the death or disappearance; and bringing of the suspected
offenders before a competent court.[150] Petitioner AFP Chief of Staff also
submitted his own affidavit attesting that he received the above directive of
respondent Secretary of National Defense and that acting on this directive, he
immediately caused to be issued a directive to the units of the AFP for the
purpose of establishing the circumstances of the alleged disappearance and
the recent reappearance of the respondents, and undertook to provide results
of the investigations to respondents.[151] To this day, however, almost a year
after the policy directive was issued by petitioner Secretary of National
Defense on October 31, 2007, respondents have not been furnished the results
of the investigation which they now seek through the instant petition for a
writ of amparo.
Under these circumstances, there is substantial evidence to warrant the
conclusion that there is a violation of respondents right to security as a
guarantee of protection by the government.
In sum, we conclude that respondents right to security as freedom from threat
is violated by the apparent threat to their life, liberty and security of person.
Their right to security as a guarantee of protection by the government is
likewise violated by the ineffective investigation and protection on the part
of the military.
Finally, we come to the reliefs granted by the Court of Appeals, which
petitioners question.
First, that petitioners furnish respondents all official and unofficial reports of
the investigation undertaken in connection with their case, except those
already in file with the court.
Second, that petitioners confirm in writing the present places of official
assignment of M/Sgt. Hilario aka Rollie Castillo and Donald Caigas.
Third, that petitioners cause to be produced to the Court of Appeals all
medical reports, records and charts, and reports of any treatment given or
recommended and medicines prescribed, if any, to the Manalo brothers, to
include a list of medical personnel (military and civilian) who attended to
them from February 14, 2006 until August 12, 2007.
With respect to the first and second reliefs, petitioners argue that the
production order sought by respondents partakes of the characteristics of a
30
search warrant. Thus, they claim that the requisites for the issuance of a
search warrant must be complied with prior to the grant of the production
order, namely: (1) the application must be under oath or affirmation; (2) the
search warrant must particularly describe the place to be searched and the
things to be seized; (3) there exists probable cause with one specific offense;
and (4) the probable cause must be personally determined by the judge after
examination under oath or affirmation of the complainant and the witnesses
he may produce.[152] In the case at bar, however, petitioners point out that
other than the bare, self-serving and vague allegations made by respondent
Raymond Manalo in his unverified declaration and affidavit, the documents
respondents seek to be produced are only mentioned generally by name, with
no other supporting details. They also argue that the relevancy of the
documents to be produced must be apparent, but this is not true in the present
case as the involvement of petitioners in the abduction has not been shown.
Petitioners arguments do not hold water. The production order under the
Amparo Rule should not be confused with a search warrant for law
enforcement under Article III, Section 2 of the 1987 Constitution. This
Constitutional provision is a protection of the people from the unreasonable
intrusion of the government, not a protection of the government from the
demand of the people such as respondents.
Instead, the amparo production order may be likened to the production of
documents or things under Section 1, Rule 27 of the Rules of Civil Procedure
which provides in relevant part, viz:
Section 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 of 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
In Material Distributors (Phil.) Inc. v. Judge Natividad,[153] the respondent
judge, under authority of Rule 27, issued a subpoena duces tecum for the
production and inspection of among others, the books and papers of Material
Distributors (Phil.) Inc. The company questioned the issuance of the
subpoena on the ground that it violated the search and seizure clause. The
Court struck down the argument and held that the subpoena pertained to a
civil procedure that cannot be identified or confused with unreasonable
searches prohibited by the Constitution
Moreover, in his affidavit, petitioner AFP Chief of Staff himself undertook
to provide results of the investigations conducted or to be conducted by the
concerned unit relative to the circumstances of the alleged disappearance of
the persons in whose favor the Writ of Amparo has been sought for as soon
as the same has been furnished Higher headquarters.
With respect to the second and third reliefs, petitioners assert that the
disclosure of the present places of assignment of M/Sgt. Hilario aka Rollie
Castillo and Donald Caigas, as well as the submission of a list of medical
personnel, is irrelevant, improper, immaterial, and unnecessary in the
resolution of the petition for a writ of amparo. They add that it will
unnecessarily compromise and jeopardize the exercise of official functions
and duties of military officers and even unwittingly and unnecessarily expose
them to threat of personal injury or even death.
On the contrary, the disclosure of the present places of assignment of M/Sgt.
Hilario aka Rollie Castillo and Donald Caigas, whom respondents both
directly implicated as perpetrators behind their abduction and detention, is
relevant in ensuring the safety of respondents by avoiding their areas of
territorial jurisdiction. Such disclosure would also help ensure that these
military officers can be served with notices and court processes in relation to
any investigation and action for violation of the respondents rights. The list
of medical personnel is also relevant in securing information to create the
medical history of respondents and make appropriate medical interventions,
when applicable and necessary.
In blatant violation of our hard-won guarantees to life, liberty and security,
these rights are snuffed out from victims of extralegal killings and enforced
disappearances. The writ of amparo is a tool that gives voice to preys of silent
guns and prisoners behind secret walls.
WHEREFORE, premises considered, the petition is DISMISSED. The
Decision of the Court of Appeals dated December 26, 2007 is affirmed.
31
 CHICO-NAZARIO,

EN BANC VELASCO, JR.,

NACHURA,
GEN. AVELINO I. RAZON, JR., Chief, Philippine National Police (PNP);
Police Chief Superintendent RAUL CASTAEDA, Chief, Criminal LEONARDO-DE CASTRO,
Investigation and Detection Group (CIDG); Police Senior Superintendent
LEONARDO A. ESPINA, Chief, Police Anti-Crime and Emergency BRION,
Response (PACER); and GEN. JOEL R. GOLTIAO, Regional Director of
ARMM, PNP, PERALTA,

Petitioners, BERSAMIN,

DEL CASTILLO,
- versus -
ABAD, and

VILLARAMA, JR., JJ.

MARY JEAN B. TAGITIS, herein represented by ATTY. FELIPE P.

ARCILLA, JR., Attorney-in-Fact,

Respondent.

Promulgated:
G.R. No. 182498

Present:
December 3, 2009

PUNO, C.J.,
x-----------------------------------------------------------------------------------------
CARPIO, x

CORONA, DECISION

CARPIO MORALES, BRION, J.:

32

We review in this petition for review on certiorari[1] the decision dated
March 7, 2008 of the Court of Appeals (CA) in C.A-G.R. AMPARO No.
00009.[2] This CA decision confirmed the enforced disappearance of
Engineer Morced N. Tagitis (Tagitis) and granted the Writ of Amparo at the
petition of his wife, Mary Jean B. Tagitis (respondent). The dispositive
portion of the CA decision reads:
WHEREFORE, premises considered, petition is hereby GRANTED. The
Court hereby FINDS that this is an enforced disappearance within the
meaning of the United Nations instruments, as used in the Amparo Rules.
The privileges of the writ of amparo are hereby extended to Engr. Morced
Tagitis.
Consequently: (1) respondent GEN. EDGARDO M. DOROMAL, Chief,
Criminal Investigation and Detention Group (CIDG) who should order COL.
JOSE VOLPANE PANTE, CIDG-9 Chief, Zamboanga City, to aid him; (2)
respondent GEN. AVELINO I. RAZON, Chief, PNP, who should order his
men, namely: (a) respondent GEN. JOEL GOLTIAO, Regional Director of
ARMM PNP, (b) COL. AHIRON AJIRIM, both head of TASK FORCE
TAGITIS, and (c) respondent SR. SUPERINTENDENT LEONARDO A.
ESPINA, Chief, Police Anti-Crime and Emergency Response, to aid him as
their superior- are hereby DIRECTED to exert extraordinary diligence and
efforts, not only to protect the life, liberty and security of Engr. Morced
Tagitis, but also to extend the privileges of the writ of amparo to Engr.
Morced Tagitis and his family, and to submit a monthly report of their actions
to this Court, as a way of PERIODIC REVIEW to enable this Court to
monitor the action of respondents.
This amparo case is hereby DISMISSED as to respondent LT. GEN.
ALEXANDER YANO, Commanding General, Philippine Army, and as to
respondent GEN. RUBEN RAFAEL, Chief Anti-Terror Task Force Comet,
Zamboanga City, both being with the military, which is a separate and distinct
organization from the police and the CIDG, in terms of operations, chain of
command and budget.
This Decision reflects the nature of the Writ of Amparo a protective remedy
against violations or threats of violation against the rights to life, liberty and
security.[3] It embodies, as a remedy, the courts directive to police agencies
to undertake specified courses of action to address the disappearance of an
individual, in this case, Engr. Morced N. Tagitis. It does not determine guilt
nor pinpoint criminal culpability for the disappearance; rather, it determines
responsibility, or at least accountability, for the enforced disappearance for
purposes of imposing the appropriate remedies to address the disappearance.
Responsibility refers to the extent the actors have been established by
substantial evidence to have participated in whatever way, by action or
omission, in an enforced disappearance, as a measure of the remedies this
Court shall craft, among them, the directive to file the appropriate criminal
and civil cases against the responsible parties in the proper courts.
Accountability, on the other hand, refers to the measure of remedies that
should be addressed to those who exhibited involvement in the enforced
disappearance without bringing the level of their complicity to the level of
responsibility defined above; or who are imputed with knowledge relating to
the enforced disappearance and who carry the burden of disclosure; or those
who carry, but have failed to discharge, the burden of extraordinary diligence
in the investigation of the enforced disappearance. In all these cases, the
issuance of the Writ of Amparo is justified by our primary goal of addressing
the disappearance, so that the life of the victim is preserved and his liberty
and security are restored.
We highlight this nature of a Writ of Amparo case at the outset to stress that
the unique situations that call for the issuance of the writ, as well as the
considerations and measures necessary to address these situations, may not at
all be the same as the standard measures and procedures in ordinary court
actions and proceedings. In this sense, the Rule on the Writ of Amparo[4]
(Amparo Rule) issued by this Court is unique. The Amparo Rule should be
read, too, as a work in progress, as its directions and finer points remain to
evolve through time and jurisprudence and through the substantive laws that
Congress may promulgate.
33

THE FACTUAL ANTECEDENTS
The background facts, based on the petition and the records of the case, are
summarized below.
The established facts show that Tagitis, a consultant for the World Bank and
the Senior Honorary Counselor for the Islamic Development Bank (IDB)
Scholarship Programme, was last seen in Jolo, Sulu. Together with Arsimin
Kunnong (Kunnong), an IDB scholar, Tagitis arrived in Jolo by boat in the
early morning of October 31, 2007 from a seminar in Zamboanga City. They
immediately checked-in at ASY Pension House. Tagitis asked Kunnong to
buy him a boat ticket for his return trip the following day to Zamboanga.
When Kunnong returned from this errand, Tagitis was no longer around.[5]
The receptionist related that Tagitis went out to buy food at around 12:30 in
the afternoon and even left his room key with the desk.[6] Kunnong looked
for Tagitis and even sent a text message to the latters Manila-based secretary
who did not know of Tagitis whereabouts and activities either; she advised
Kunnong to simply wait.[7]
On November 4, 2007, Kunnong and Muhammad Abdulnazeir N. Matli, a
UP professor of Muslim studies and Tagitis fellow student counselor at the
IDB, reported Tagitis disappearance to the Jolo Police Station.[8] On
November 7, 2007, Kunnong executed a sworn affidavit attesting to what he
knew of the circumstances surrounding Tagitis disappearance.[9]
More than a month later (on December 28, 2007), the respondent filed a
Petition for the Writ of Amparo (petition) with the CA through her Attorney-
in-Fact, Atty. Felipe P. Arcilla.[10] The petition was directed against Lt. Gen.
Alexander Yano, Commanding General, Philippine Army; Gen. Avelino I.
Razon, Chief, Philippine National Police (PNP); Gen. Edgardo M. Doromal,
Chief, Criminal Investigation and Detention Group (CIDG); Sr. Supt.
Leonardo A. Espina, Chief, Police Anti-Crime and Emergency Response;
Gen. Joel Goltiao, Regional Director, ARMM-PNP; and Gen. Ruben Rafael,
Chief, Anti-Terror Task Force Comet [collectively referred to as petitioners].
After reciting Tagitis personal circumstances and the facts outlined above,
the petition went on to state:
xxxx
7. Soon after the student left the room, Engr. Tagitis went out of the pension
house to take his early lunch but while out on the street, a couple of burly
men believed to be police intelligence operatives, forcibly took him and
boarded the latter on a motor vehicle then sped away without the knowledge
of his student, Arsimin Kunnong;
8. As instructed, in the late afternoon of the same day, Kunnong returned to
the pension house, and was surprised to find out that subject Engr. Tagitis
cannot [sic] be contacted by phone and was not also around and his room was
closed and locked;
9. Kunnong requested for the key from the desk of the pension house who
[sic] assisted him to open the room of Engr. Tagitis, where they discovered
that the personal belongings of Engr. Tagitis, including cell phones,
documents and other personal belongings were all intact inside the room;
10. When Kunnong could not locate Engr. Tagitis, the former sought the help
of another IDB scholar and reported the matter to the local police agency;
11. Arsimin Kunnong including his friends and companions in Jolo, exerted
efforts in trying to locate the whereabouts of Engr. Tagitis and when he
34
reported the matter to the police authorities in Jolo, he was immediately given
a ready answer that Engr. Tagitis could have been abducted by the Abu
Sayyaf group and other groups known to be fighting against the government;
12. Being scared with [sic] these suggestions and insinuations of the police
officers, Kunnong reported the matter to the [respondent, wife of Engr.
Tagitis] by phone and other responsible officers and coordinators of the IDB
Scholarship Programme in the Philippines, who alerted the office of the
Governor of ARMM who was then preparing to attend the OIC meeting in
Jeddah, Saudi Arabia;
13. [Respondent], on the other hand, approached some of her co-employees
with the Land Bank in Digos branch, Digos City, Davao del Sur who likewise
sought help from some of their friends in the military who could help them
find/locate the whereabouts of her husband;
14. All of these efforts of the [respondent] did not produce any positive results
except the information from persons in the military who do not want to be
identified that Engr. Tagitis is in the hands of the uniformed men;
15. According to reliable information received by the [respondent], subject
Engr. Tagitis is in the custody of police intelligence operatives, specifically
with the CIDG, PNP Zamboanga City, being held against his will in an
earnest attempt of the police to involve and connect Engr. Tagitis with the
different terrorist groups;
xxxx
17. [Respondent] filed her complaint with the PNP Police Station in the
ARMM in Cotobato and in Jolo, as suggested by her friends, seeking their
help to find her husband, but [respondents] request and pleadings failed to
produce any positive results;
18. Instead of helping the [respondent], she [sic] was told of an intriguing tale
by the police that her husband, subject of the petition, was not missing but
was with another woman having good time somewhere, which is a clear
indication of the [petitioners] refusal to help and provide police assistance in
locating her missing husband;
19. The continued failure and refusal of the [petitioners] to release and/or
turn-over subject Engr. Tagitis to his family or even to provide truthful
information to [the respondent] of the subjects whereabouts, and/or allow [the
respondent] to visit her husband Engr. Morced Tagitis, caused so much
sleepless nights and serious anxieties;
20. Lately, [the respondent] was again advised by one of the [petitioners] to
go to the ARMM Police Headquarters again in Cotobato City and also to the
different Police Headquarters including [those] in Davao City, in Zamboanga
City, in Jolo, and in Camp Crame, Quezon City, and all these places have
been visited by the [respondent] in search for her husband, which entailed
expenses for her trips to these places thereby resorting her to borrowings and
beggings [sic] for financial help from friends and relatives only to try
complying [sic] to the different suggestions of these police officers, despite
of which, her efforts produced no positive results up to the present time;
21. In fact at times, some police officers, who [sympathized with] the
sufferings undergone by the [respondent], informed her that they are not the
proper persons that she should approach, but assured her not to worry because
her husband is [sic] in good hands;
35
22. The unexplained uncooperative behavior of the [petitioners] to the
[respondents] request for help and failure and refusal of the [petitioners] to
extend the needed help, support and assistance in locating the whereabouts of
Engr. Tagitis who had been declared missing since October 30, 2007 which
is almost two (2) months now, clearly indicates that the [petitioners] are
actually in physical possession and custody of [respondents] husband, Engr.
Tagitis;
xxxx
25. [The respondent] has exhausted all administrative avenues and remedies
but to no avail, and under the circumstances, [the respondent] has no other
plain, speedy and adequate remedy to protect and get the release of subject
Engr. Morced Tagitis from the illegal clutches of the [petitioners], their
intelligence operatives and the like which are in total violation of the subjects
human and constitutional rights, except the issuance of a WRIT OF
AMPARO. [Emphasis supplied]
On the same day the petition was filed, the CA immediately issued the Writ
of Amparo, set the case for hearing on January 7, 2008, and directed the
petitioners to file their verified return within seventy-two (72) hours from
service of the writ.[11]
In their verified Return filed during the hearing of January 27, 2008, the
petitioners denied any involvement in or knowledge of Tagitis alleged
abduction. They argued that the allegations of the petition were incomplete
and did not constitute a cause of action against them; were baseless, or at best
speculative; and were merely based on hearsay evidence. [12]
The affidavit of PNP Chief Gen. Avelino I. Razon, attached to the Return,
stated that: he did not have any personal knowledge of, or any participation
in, the alleged disappearance; that he had been designated by President Gloria
Macapagal Arroyo as the head of a special body called TASK FORCE USIG,
to address concerns about extralegal killings and enforced disappearances;
the Task Force, inter alia, coordinated with the investigators and local police,
held case conferences, rendered legal advice in connection to these cases; and
gave the following summary:[13]
xxxx
4.
a) On November 5, 2007, the Regional Director, Police Regional
Office ARMM submitted a report on the alleged disappearance of one Engr.
Morced Tagitis. According to the said report, the victim checked-in at ASY
Pension House on October 30, 2007 at about 6:00 in the morning and then
roamed around Jolo, Sulu with an unidentified companion. It was only after
a few days when the said victim did not return that the matter was reported to
Jolo MPS. Afterwards, elements of Sulu PPO conducted a thorough
investigation to trace and locate the whereabouts of the said missing person,
but to no avail. The said PPO is still conducting investigation that will lead
to the immediate findings of the whereabouts of the person.
b) Likewise, the Regional Chief, 9RCIDU submitted a Progress
Report to the Director, CIDG. The said report stated among others that:
subject person attended an Education Development Seminar set on October
28, 2007 conducted at Ateneo de Zamboanga, Zamboanga City together with
a Prof. Matli. On October 30, 2007, at around 5:00 oclock in the morning,
Engr. Tagitis reportedly arrived at Jolo Sulu wharf aboard M/V Bounty
Cruise, he was then billeted at ASY Pension House. At about 6:15 oclock in
the morning of the same date, he instructed his student to purchase a fast craft
ticket bound for Zamboanga City and will depart from Jolo, Sulu on October
36
31, 2007. That on or about 10:00 oclock in the morning, Engr. Tagitis left the
premises of ASY Pension House as stated by the cashier of the said pension
house. Later in the afternoon, the student instructed to purchase the ticket
arrived at the pension house and waited for Engr. Tagitis, but the latter did
not return. On its part, the elements of 9RCIDU is now conducting a
continuous case build up and information gathering to locate the whereabouts
of Engr. Tagitis.
c) That the Director, CIDG directed the conduct of the search in all
divisions of the CIDG to find Engr. Tagitis who was allegedly abducted or
illegally detained by covert CIDG-PNP Intelligence Operatives since October
30, 2007, but after diligent and thorough search, records show that no such
person is being detained in CIDG or any of its department or divisions.
5. On this particular case, the Philippine National Police exhausted all
possible efforts, steps and actions available under the circumstances and
continuously search and investigate [sic] the instant case. This immense
mandate, however, necessitates the indispensable role of the citizenry, as the
PNP cannot stand alone without the cooperation of the victims and witnesses
to identify the perpetrators to bring them before the bar of justice and secure
their conviction in court.
The petitioner PNP-CIDG Chief, Gen. Edgardo M. Doromal, submitted as
well his affidavit, also attached to the Return of the Writ, attesting that upon
receipt of the Writ of Amparo, he caused the following:[14]
xxxx
That immediately upon receipt on December 29, 2007 of the Resolution of
the Honorable Special Fourth Division of the Court of Appeals, I immediately
directed the Investigation Division of this Group [CIDG] to conduct urgent
investigation on the alleged enforced disappearance of Engineer Morced
Tagitis.
That based on record, Engr. Morced N. Tagitis attended an Education
Development Seminar on October 28, 2007 at Ateneo de Zamboanga at
Zamboanga City together with Prof. Abdulnasser Matli. On October 30,
2007, at around six oclock in the morning he arrived at Jolo, Sulu. He was
assisted by his student identified as Arsimin Kunnong of the Islamic
Development Bank who was also one of the participants of the said seminar.
He checked in at ASY pension house located [sic] Kakuyagan, Patikul, Sulu
on October 30, 2007 with [sic] unidentified companion. At around six oclock
in the morning of even date, Engr. Tagitis instructed his student to purchase
a fast craft ticket for Zamboanga City. In the afternoon of the same date,
Kunnong arrived at the pension house carrying the ticket he purchased for
Engr. Tagitis, but the latter was nowhere to be found anymore. Kunnong
immediately informed Prof. Abdulnasser Matli who reported the incident to
the police. The CIDG is not involved in the disappearance of Engr. Morced
Tagitis to make out a case of an enforced disappearance which presupposes
a direct or indirect involvement of the government.
That herein [petitioner] searched all divisions and departments for a person
named Engr. Morced N. Tagitis, who was allegedly abducted or illegally
detained by covert CIDG-PNP Intelligence Operatives since October 30,
2007 and after a diligent and thorough research records show that no such
person is being detained in CIDG or any of its department or divisions.
That nevertheless, in order to determine the circumstances surrounding Engr.
Morced Tagitis [sic] alleged enforced disappearance, the undersigned had
undertaken immediate investigation and will pursue investigations up to its
full completion in order to aid in the prosecution of the person or persons
responsible therefore.
37
 the cause, manner, location and time of disappearance as well as any pattern
or practice that may have brought about the disappearance.

Likewise attached to the Return of the Writ was PNP-PACER[15] Chief PS

Supt. Leonardo A. Espinas affidavit which alleged that:[16]
That I further directed the chief of PACER-MOR, Police Superintendent
JOSE ARNALDO BRIONES JR., to submit a written report regarding the
disappearance of ENGR. MORCED.
xxxx

That in compliance with my directive, the chief of PACER-MOR sent

That, I and our men and women in PACER vehemently deny any through fax his written report.
participation in the alleged abduction or illegally [sic] detention of ENGR.
MORCED N. TAGITS on October 30, 2007. As a matter of fact, nowhere in
the writ was mentioned that the alleged abduction was perpetrated by
elements of PACER nor was there any indication that the alleged abduction That the investigation and measures being undertaken to locate/search the
or illegal detention of ENGR. TAGITIS was undertaken jointly by our men subject in coordination with Police Regional Office, Autonomous Region of
and by the alleged covert CIDG-PNP intelligence operatives alleged to have Muslim Mindanao (PRO-ARMM) and Jolo Police Provincial Office (PPO)
abducted or illegally detained ENGR. TAGITIS. and other AFP and PNP units/agencies in the area are ongoing with the
instruction not to leave any stone unturned so to speak in the investigation
until the perpetrators in the instant case are brought to the bar of justice.
That I was shocked when I learned that I was implicated in the alleged
disappearance of ENGR. MORCED in my capacity as the chief PACER [sic]
considering that our office, the Police Anti-Crime and Emergency Response
(PACER), a special task force created for the purpose of neutralizing or That I have exercised EXTRAORDINARY DILIGENCE in dealing with the
eradicating kidnap-for-ransom groups which until now continue to be one of WRIT OF AMPARO just issued.
the menace of our society is a respondent in kidnapping or illegal detention
case. Simply put, our task is to go after kidnappers and charge them in court
and to abduct or illegally detain or kidnap anyone is anathema to our mission.

Finally, the PNP PRO ARMM Regional Director PC Supt. Joel R. Goltiao
That right after I learned of the receipt of the WRIT OF AMPARO, I directed (Gen. Goltiao), also submitted his affidavit detailing the actions that he had
the Chief of PACER Mindanao Oriental (PACER-MOR) to conduct pro- taken upon receipt of the report on Tagitis disappearance, viz:[17]
active measures to investigate, locate/search the subject, identify and
apprehend the persons responsible, to recover and preserve evidence related
to the disappearance of ENGR. MORCED TAGITIS, which may aid in the xxxx
prosecution of the person or persons responsible, to identify witnesses and
obtain statements from them concerning the disappearance and to determine

38

3) For the record:
1. I am the Regional Director of Police Regional Office ARMM
now and during the time of the incident;
xxxx
4. It is my duty to look into and take appropriate measures on any cases of
reported enforced disappearances and when they are being alluded to my
office;
5. On November 5, 2007, the Provincial Director of Sulu Police Provincial
Office reported to me through Radio Message Cite No. SPNP3-1105-07-2007
that on November 4, 2007 at around 3:30 p.m., a certain Abdulnasser Matli,
an employee of Islamic Development Bank, appeared before the Office of the
Chief of Police, Jolo Police Station, and reported the disappearance of Engr.
Morced Tagitis, scholarship coordinator of Islamic Development Bank,
Manila;
6. There was no report that Engr. Tagibis was last seen in the company of or
taken by any member of the Philippine National Police but rather he just
disappeared from ASY Pension House situated at Kakuyagan Village,
Village, Patikul, Sulu, on October 30, 2007, without any trace of forcible
abduction or arrest;
7. The last known instance of communication with him was when Arsimin
Kunnong, a student scholar, was requested by him to purchase a vessel ticket
at the Office of Weezam Express, however, when the student returned back
to ASY Pension House, he no longer found Engr. Tagitis there and when he
immediately inquired at the information counter regarding his whereabouts
[sic], the person in charge in the counter informed him that Engr. Tagitis had
left the premises on October 30, 2007 around 1 oclock p.m. and never
returned back to his room;
8. Immediately after learning the incident, I called and directed the Provincial
Director of Sulu Police Provincial Office and other units through phone call
and text messages to conduct investigation [sic] to determine the whereabouts
of the aggrieved party and the person or persons responsible for the threat,
act or omission, to recover and preserve evidence related to the disappearance
of Engr. Tagitis, to identify witnesses and obtain statements from them
concerning his disappearance, to determine the cause and manner of his
disappearance, to identify and apprehend the person or persons involved in
the disappearance so that they shall be brought before a competent court;
9. Thereafter, through my Chief of the Regional Investigation and Detection
Management Division, I have caused the following directives:
a) Radio Message Cite No. RIDMD-1122-07-358 dated November 22,
2007 directing PD Sulu PPO to conduct joint investigation with CIDG and
CIDU ARMM on the matter;
b) Radio Message Cite No. RIDMD-1128-07-361 dated November 28,
2007 directing PD Sulu PPO to expedite compliance to my previous directive;
c) Memorandum dated December 14, 2007 addressed to PD Sulu PPO
reiterating our series of directives for investigation and directing him to
undertake exhaustive coordination efforts with the owner of ASY Pension
39
House and student scholars of IDB in order to secure corroborative statements b) Radio Message Cite No. SPIDMS-1205-47-07 informing this office
regarding the disappearance and whereabouts of said personality; that they are still monitoring the whereabouts of Engr. Tagitis;

d) Memorandum dated December 24, 2007 addressed to PD Sulu PPO c) Investigation Report dated December 31, 2007 from the Chief of Police,
directing him to maximize efforts to establish clues on the whereabouts of Jolo Police Station, Sulu PPO;
Engr. Tagitis by seeking the cooperation of Prof. Abdulnasser Matli and
Arsimin Kunnong and/or whenever necessary, for them to voluntarily submit
for polygraph examination with the NBI so as to expunge all clouds of doubt
that they may somehow have knowledge or idea to his disappearance; 11. This incident was properly reported to the PNP Higher Headquarters as
shown in the following:

e) Memorandum dated December 27, 2007 addressed to the Regional

Chief, Criminal Investigation and Detection Group, Police Regional Office a) Memorandum dated November 6, 2007 addressed to the Chief, PNP
9, Zamboanga City, requesting assistance to investigate the cause and informing him of the facts of the disappearance and the action being taken by
unknown disappearance of Engr. Tagitis considering that it is within their our office;
area of operational jurisdiction;

b) Memorandum dated November 6, 2007 addressed to the Director,

f) Memorandum from Chief, Intelligence Division, PRO ARMM dated Directorate for Investigation and Detection Management, NHQ PNP;
December 30, 2007 addressed to PD Sulu PPO requiring them to submit
complete investigation report regarding the case of Engr. Tagitis;

c) Memorandum dated December 30, 2007 addressed to the Director,

DIDM;
10. In compliance to our directives, PD Sulu PPO has exerted his [sic] efforts
to conduct investigation [sic] on the matter to determine the whereabouts of
Engr. Tagitis and the circumstances related to his disappearance and
submitted the following: 4) In spite of our exhaustive efforts, the whereabouts of Engr. Tagitis cannot
be determined but our office is continuously intensifying the conduct of
information gathering, monitoring and coordination for the immediate
solution of the case.
a) Progress Report dated November 6, 2007 through Radio Message Cite
No. SPNP3-1106-10-2007;

40
Since the disappearance of Tagistis was practically admitted and taking note
of favorable actions so far taken on the disappearance, the CA directed Gen.
Goltiao as the officer in command of the area of disappearance to form TASK
FORCE TAGITIS.[18]
Task Force Tagitis
On January 11, 2008, Gen. Goltiao designated PS Supt. Ahiron Ajirim (PS
Supt. Ajirim) to head TASK FORCE TAGITIS.[19] The CA subsequently
set three hearings to monitor whether TASK FORCE TAGITIS was exerting
extraordinary efforts in handling the disappearance of Tagitis.[20] As
planned, (1) the first hearing would be to mobilize the CIDG, Zamboanga
City; (2) the second hearing would be to mobilize intelligence with Abu
Sayyaf and ARMM; and (3) the third hearing would be to mobilize the Chief
of Police of Jolo, Sulu and the Chief of Police of Zamboanga City and other
police operatives.[21]
In the hearing on January 17, 2008, TASK FORCE TAGITIS submitted to
the CA an intelligence report from PSL Usman S. Pingay, the Chief of Police
of the Jolo Police Station, stating a possible motive for Tagitis
disappearance.[22] The intelligence report was apparently based on the sworn
affidavit dated January 4, 2008 of Muhammad Abdulnazeir N. Matli (Prof.
Matli), Professor of Islamic Studies at the University of the Philippines and
an Honorary Student Counselor of the IDB Scholarship Program in the
Philippines, who told the Provincial Governor of Sulu that:[23]
[Based] on reliable information from the Office of Muslim Affairs in Manila,
Tagitis has reportedly taken and carried away more or less Five Million Pesos
(P5,000,000.00) deposited and entrusted to his [personal] bank accounts by
the Central Office of IDB, Jeddah, Kingdom of Saudi Arabia, which [was]
intended for the IDB Scholarship Fund.
In the same hearing, PS Supt. Ajirim testified that since the CIDG was alleged
to be responsible, he personally went to the CIDG office in Zamboanga City
to conduct an ocular inspection/investigation, particularly of their detention
cells.[24] PS Supt. Ajirim stated that the CIDG, while helping TASK FORCE
TAGITIS investigate the disappearance of Tagitis, persistently denied any
knowledge or complicity in any abduction.[25] He further testified that prior
to the hearing, he had already mobilized and given specific instructions to
their supporting units to perform their respective tasks; that they even talked
to, but failed to get any lead from the respondent in Jolo.[26] In his submitted
investigation report dated January 16, 2008, PS Supt. Ajirim concluded:[27]
9. Gleaned from the undersigned inspection and observation at the
Headquarters 9 RCIDU and the documents at hand, it is my own initial
conclusion that the 9RCIDU and other PNP units in the area had no
participation neither [sic] something to do with [sic] mysterious
disappearance of Engr. Morced Tagitis last October 30, 2007. Since doubt
has been raised regarding the emolument on the Islamic Development Bank
Scholar program of IDB that was reportedly deposited in the personal account
of Engr. Tagitis by the IDB central office in Jeddah, Kingdom of Saudi
Arabia. Secondly, it could might [sic] be done by resentment or sour grape
among students who are applying for the scholar [sic] and were denied which
was allegedly conducted/screened by the subject being the coordinator of said
program.
20. It is also premature to conclude but it does or it may and [sic] presumed
that the motive behind the disappearance of the subject might be due to the
funds he maliciously spent for his personal interest and wanted to elude
responsibilities from the institution where he belong as well as to the Islamic
student scholars should the statement of Prof. Matli be true or there might be
a professional jealousy among them.
xxxx
41

It is recommended that the Writ of Amparo filed against the respondents be
dropped and dismissed considering on [sic] the police and military actions in
the area particularly the CIDG are exerting their efforts and religiously doing
their tasked [sic] in the conduct of its intelligence monitoring and
investigation for the early resolution of this instant case. But rest assured, our
office, in coordination with other law-enforcement agencies in the area, are
continuously and religiously conducting our investigation for the resolution
of this case.
On February 4, 2008, the CA issued an ALARM WARNING that TASK
FORCE TAGITIS did not appear to be exerting extraordinary efforts in
resolving Tagitis disappearance on the following grounds:[28]
(1) This Court FOUND that it was only as late as January 28, 2008,
after the hearing, that GEN. JOEL GOLTIAO and COL. AHIRON AJIRIM
had requested for clear photographs when it should have been standard
operating procedure in kidnappings or disappearances that the first agenda
was for the police to secure clear pictures of the missing person, Engr.
Morced Tagitis, for dissemination to all parts of the country and to
neighboring countries. It had been three (3) months since GEN. JOEL
GOLTIAO admitted having been informed on November 5, 2007 of the
alleged abduction of Engr. Morced Tagitis by alleged bad elements of the
CIDG. It had been more than one (1) month since the Writ of Amparo had
been issued on December 28, 2007. It had been three (3) weeks when battle
formation was ordered through Task Force Tagitis, on January 17, 2008. It
was only on January 28, 2008 when the Task Force Tagitis requested for clear
and recent photographs of the missing person, Engr. Morced Tagitis, despite
the Task Force Tagitis claim that they already had an all points bulletin, since
November 5, 2007, on the missing person, Engr. Morced Tagitis. How could
the police look for someone who disappeared if no clear photograph had been
disseminated?
(2) Furthermore, Task Force Tagitis COL. AHIROM AJIRIM
informed this Court that P/Supt KASIM was designated as Col. Ahirom
Ajirims replacement in the latters official designated post. Yet, P/Supt
KASIMs subpoena was returned to this Court unserved. Since this Court was
made to understand that it was P/Supt KASIM who was the petitioners
unofficial source of the military intelligence information that Engr. Morced
Tagitis was abducted by bad elements of the CIDG (par. 15 of the Petition),
the close contact between P/Supt KASIM and Col. Ahirom Ajirim of TASK
FORCE TAGITIS should have ensured the appearance of Col. KASIM in
response to this courts subpoena and COL. KASIM could have confirmed the
military intelligence information that bad elements of the CIDG had abducted
Engr. Morced Tagitis.
Testimonies for the Respondent
On January 7, 2008, the respondent, Mary Jean B. Tagitis, testified on direct
examination that she went to Jolo and Zamboanga in her efforts to locate her
husband. She said that a friend from Zamboanga holding a high position in
the military (whom she did not then identify) gave her information that
allowed her to specify her allegations, particularly paragraph 15 of the
petition.[29] This friend also told her that her husband [was] in good
hands.[30] The respondent also testified that she sought the assistance of her
former boss in Davao City, Land Bank Bajada Branch Manager Rudy
Salvador, who told her that PNP CIDG is holding [her husband], Engineer
Morced Tagitis.[31] The respondent recounted that she went to Camp
Katitipan in Davao City where she met Col. Julasirim Ahadin Kasim (Col.
Kasim/Sr. Supt Kasim) who read to her and her friends (who were then with
her) a highly confidential report that contained the alleged activities of
Engineer Tagitis and informed her that her husband was abducted because he
is under custodial investigation for being a liaison for J.I. or Jemaah
Islamiah.[32]
42

On January 17, 2008, the respondent on cross-examination testified that she
is Tagitis second wife, and they have been married for thirteen years; Tagitis
was divorced from his first wife.[33] She last communicated with her
husband on October 29, 2007 at around 7:31 p.m. through text messaging;
Tagitis was then on his way to Jolo, Sulu, from Zamboanga City.[34]
The respondent narrated that she learned of her husbands disappearance on
October 30, 2007 when her stepdaughter, Zaynah Tagitis (Zaynah), informed
her that she had not heard from her father since the time they arranged to meet
in Manila on October 31, 2007.[35] The respondent explained that it took her
a few days (or on November 5, 2007) to personally ask Kunnong to report
her husbands disappearance to the Jolo Police Station, since she had the
impression that her husband could not communicate with her because his
cellular phones battery did not have enough power, and that he would call her
when he had fully-charged his cellular phones battery.[36]
The respondent also identified the high-ranking military friend, who gave her
the information found in paragraph 15 of her petition, as Lt. Col. Pedro L.
Ancanan, Jr (Col. Ancanan). She met him in Camp Karingal, Zamboanga
through her boss.[37] She also testified that she was with three other people,
namely, Mrs. Marydel Martin Talbin and her two friends from Mati City,
Davao Oriental, when Col. Kasim read to them the contents of the highly
confidential report at Camp Katitipan, Davao City. The respondent further
narrated that the report indicated that her husband met with people belonging
to a terrorist group and that he was under custodial investigation. She then
told Col. Kasim that her husband was a diabetic taking maintenance
medication, and asked that the Colonel relay to the persons holding him the
need to give him his medication.[38]
On February 11, 2008, TASK FORCE TAGITIS submitted two narrative
reports,[39] signed by the respondent, detailing her efforts to locate her
husband which led to her meetings with Col. Ancanan of the Philippine Army
and Col. Kasim of the PNP. In her narrative report concerning her meeting
with Col. Ancanan, the respondent recounted, viz:[40]
On November 11, 2007, we went to Zamboanga City with my friend Mrs.
Marydel Talbin. Our flight from Davao City is 9:00 oclock in the morning;
we arrived at Zamboanga Airport at around 10:00 oclock. We [were] fetched
by the two staffs of Col. Ancanan. We immediately proceed [sic] to West
Mindanao Command (WESTMINCOM).
On that same day, we had private conversation with Col. Ancanan. He
interviewed me and got information about the personal background of Engr.
Morced N. Tagitis. After he gathered all information, he revealed to us the
contents of text messages they got from the cellular phone of the subject Engr.
Tagitis. One of the very important text messages of Engr. Tagitis sent to his
daughter Zaynah Tagitis was that she was not allowed to answer any
telephone calls in his condominium unit.
While we were there he did not tell us any information of the whereabouts of
Engr. Tagitis. After the said meeting with Col. Ancanan, he treated us as
guests to the city. His two staffs accompanied us to the mall to purchase our
plane ticket going back to Davao City on November 12, 2007.
When we arrived in Davao City on November 12, 2007 at 9:00 in the
morning, Col. Ancanan and I were discussing some points through phone
calls. He assured me that my husband is alive and hes last looked [sic] in
Talipapao, Jolo, Sulu. Yet I did not believe his given statements of the
whereabouts of my husband, because I contacted some of my friends who
have access to the groups of MILF, MNLF and ASG. I called up Col.
Ancanan several times begging to tell me the exact location of my husband
and who held him but he refused.
While I was in Jolo, Sulu on November 30, 2007, I called him up again
because the PNP, Jolo did not give me any information of the whereabouts of
43
my husband. Col. Ancanan told me that Sana ngayon alam mo na kung saan
ang kinalalagyan ng asawa mo. When I was in Zamboanga, I was thinking of
dropping by the office of Col. Ancanan, but I was hesitant to pay him a visit
for the reason that the Chief of Police of Jolo told me not to contact any AFP
officials and he promised me that he can solve the case of my husband (Engr.
Tagitis) within nine days.
I appreciate the effort of Col. Ancanan on trying to solve the case of my
husband Engr. Morced Tagitis, yet failed to do so.
The respondent also narrated her encounter with Col. Kasim, as follows:[41]
On November 7, 2007, I went to Land Bank of the Philippines, Bajada
Branch, Davao City to meet Mr. Rudy Salvador. I told him that my husband,
Engineer Morced Tagitis was presumed to be abducted in Jolo, Sulu on
October 30, 2007. I asked him a favor to contact his connections in the
military in Jolo, Sulu where the abduction of Engr. Tagitis took place. Mr.
Salvador immediately called up Camp Katitipan located in Davao City
looking for high-ranking official who can help me gather reliable information
behind the abduction of subject Engineer Tagitis.
On that same day, Mr. Salvador and my friend, Anna Mendoza, Executive
Secretary, accompanied me to Camp Katitipan to meet Col. Kasim. Mr.
Salvador introduced me to Col. Kasim and we had a short conversation. And
he assured me that hell do the best he can to help me find my husband.
After a few weeks, Mr. Salvador called me up informing me up informing me
that I am to go to Camp Katitipan to meet Col. Kasim for he has an urgent,
confidential information to reveal.
On November 24, 2007, we went back to Camp Katitipan with my three
friends. That was the time that Col. Kasim read to us the confidential report
that Engr. Tagitis was allegedly connected [with] different terrorist [groups],
one of which he mentioned in the report was OMAR PATIK and a certain
SANTOS - a Balik Islam.
It is also said that Engr. Tagitis is carrying boxes of medicines for the injured
terrorists as a supplier. These are the two information that I can still
remember. It was written in a long bond paper with PNP Letterhead. It was
not shown to us, yet Col. Kasim was the one who read it for us.
He asked a favor to me that Please dont quote my Name! Because this is a
raw report. He assured me that my husband is alive and he is in the custody
of the military for custodial investigation. I told him to please take care of my
husband because he has aliments and he recently took insulin for he is a
diabetic patient.
In my petition for writ of amparo, I emphasized the information that I got
from Kasim.
On February 11, 2008, the respondent presented Mrs. Marydel Martin Talbin
(Mrs. Talbin) to corroborate her testimony regarding her efforts to locate her
husband, in relation particularly with the information she received from Col.
Kasim. Mrs. Talbin testified that she was with the respondent when she went
to Zamboanga to see Col. Ancanan, and to Davao City at Camp Katitipan to
meet Col. Kasim.[42]
In Zamboanga, Mrs. Talbin recounted that they met with Col. Ancanan, who
told them that there was a report and that he showed them a series of text
44
messages from Tagitis cellular phone, which showed that Tagitis and his
daughter would meet in Manila on October 30, 2007.[43]
She further narrated that sometime on November 24, 2007, she went with the
respondent together with two other companions, namely, Salvacion Serrano
and Mini Leong, to Camp Katitipan to talk to Col. Kasim.[44] The respondent
asked Col. Kasim if he knew the exact location of Engr. Tagitis. Col. Kasim
told them that Tagitis was in good hands, although he was not certain whether
he was with the PNP or with the Armed Forces of the Philippines (AFP). She
further recounted that based on the report Col. Kasim read in their presence,
Tagitis was under custodial investigation because he was being charged with
terrorism; Tagitis in fact had been under surveillance since January 2007 up
to the time he was abducted when he was seen talking to Omar Patik and a
certain Santos of Bulacan, a Balik Islam charged with terrorism. Col. Kasim
also told them that he could not give a copy of the report because it was a raw
report.[45] She also related that the Col. Kasim did not tell them exactly
where Tagitis was being kept, although he mentioned Talipapao, Sulu.Prof.,
lalabas din yan.[50] Prof. Matli also emphasized that despite what his January
4, 2008 affidavit indicated,[51] he never told PS Supt. Pingay, or made any
accusation, that Tagitis took away money entrusted to him.[52] Prof. Matli
confirmed, however, that that he had received an e-mail report[53] from
Nuraya Lackian of the Office of Muslim Affairs in Manila that the IDB was
seeking assistance of the office in locating the funds of IDB scholars
deposited in Tagitis personal account.[54]
On cross-examination by the respondents counsel, Prof. Matli testified that
his January 4, 2008 affidavit was already prepared when PS Supt. Pingay
asked him to sign it.[55] Prof Matli clarified that although he read the
affidavit before signing it, he was not so much aware of [its] contents.[56]
On February 11, 2008, the petitioners presented Col. Kasim to rebut material
portions of the respondents testimony, particularly the allegation that he had
stated that Tagitis was in the custody of either the military or the PNP.[57]
Col. Kasim categorically denied the statements made by the respondent in her
narrative report, specifically: (1) that Tagitis was seen carrying boxes of
medicines as supplier for the injured terrorists; (2) that Tagitis was under the
custody of the military, since he merely said to the respondent that your
husband is in good hands and is probably taken cared of by his armed
abductors; and (3) that Tagitis was under custodial investigation by the
military, the PNP or the CIDG Zamboanga City.[58] Col. Kasim emphasized
that the informal letter he received from his informant in Sulu did not indicate
that Tagitis was in the custody of the CIDG.[59] He also stressed that the
information he provided to the respondent was merely a raw report sourced
from barangay intelligence that still needed confirmation and follow-up as to
its veracity.[60]
On cross-examination, Col. Kasim testified that the information he gave the
respondent was given to him by his informant, who was a civilian asset,
through a letter which he considered as unofficial.[61] Col. Kasim stressed
that the letter was only meant for his consumption and not for reading by
others.[62] He testified further that he destroyed the letter right after he read
it to the respondent and her companions because it was not important to him
and also because the information it contained had no importance in relation
with the abduction of Tagitis.[63] He explained that he did not keep the letter
because it did not contain any information regarding the whereabouts of
Tagitis and the person(s) responsible for his abduction.[64]
In the same hearing on February 11, 2008, the petitioners also presented
Police Senior Superintendent Jose Volpane Pante (Col. Pante), Chief of the
CIDG-9, to disprove the respondents allegation that Tagitis was in the
custody of CIDG-Zamboanga City.[65] Col. Pante clarified that the CIDG
was the investigative arm of the PNP, and that the CIDG investigates and
prosecutes all cases involving violations in the Revised Penal Code
particularly those considered as heinous crimes.[66] Col. Pante further
testified that the allegation that 9 RCIDU personnel were involved in the
disappearance of Tagitis was baseless, since they did not conduct any
operation in Jolo, Sulu before or after Tagitis reported disappearance.[67]
Col. Pante added that the four (4) personnel assigned to the Sulu CIDT had
no capability to conduct any operation, since they were only assigned to
investigate matters and to monitor the terrorism situation.[68] He denied that
his office conducted any surveillance on Tagitis prior to the latters
45
disappearance.[69] Col. Pante further testified that his investigation of Tagitis
disappearance was unsuccessful; the investigation was still facing a blank
wall on the whereabouts of Tagitis.[70]
THE CA RULING
On March 7, 2008, the CA issued its decision[71] confirming that the
disappearance of Tagitis was an enforced disappearance under the United
Nations (UN) Declaration on the Protection of All Persons from Enforced
Disappearances.[72] The CA ruled that when military intelligence pinpointed
the investigative arm of the PNP (CIDG) to be involved in the abduction, the
missing-person case qualified as an enforced disappearance. The conclusion
that the CIDG was involved was based on the respondents testimony,
corroborated by her companion, Mrs. Talbin. The CA noted that the
information that the CIDG, as the police intelligence arm, was involved in
Tagitis abduction came from no less than the military an independent agency
of government. The CA thus greatly relied on the raw report from Col.
Kasims asset, pointing to the CIDGs involvement in Tagitis abduction. The
CA held that raw reports from an asset carried great weight in the intelligence
world. It also labeled as suspect Col. Kasims subsequent and belated
retraction of his statement that the military, the police, or the CIDG was
involved in the abduction of Tagitis.
The CA characterized as too farfetched and unbelievable and a bedlam of
speculation police theories painting the disappearance as intentional on the
part of Tagitis. He had no previous brushes with the law or any record of
overstepping the bounds of any trust regarding money entrusted to him; no
student of the IDB scholarship program ever came forward to complain that
he or she did not get his or her stipend. The CA also found no basis for the
police theory that Tagitis was trying to escape from the clutches of his second
wife, on the basis of the respondents testimony that Tagitis was a Muslim
who could have many wives under the Muslim faith, and that there was no
issue at all when the latter divorced his first wife in order to marry the second.
Finally, the CA also ruled out kidnapping for ransom by the Abu Sayyaf or
by the ARMM paramilitary as the cause for Tagitis disappearance, since the
respondent, the police and the military noted that there was no
acknowledgement of Tagitis abduction or demand for payment of ransom the
usual modus operandi of these terrorist groups.
Based on these considerations, the CA thus extended the privilege of the writ
to Tagitis and his family, and directed the CIDG Chief, Col. Jose Volpane
Pante, PNP Chief Avelino I. Razon, TASK FORCE TAGITIS heads Gen.
Joel Goltiao and Col. Ahiron Ajirim, and PACER Chief Sr. Supt. Leonardo
A. Espina to exert extraordinary diligence and efforts to protect the life,
liberty and security of Tagitis, with the obligation to provide monthly reports
of their actions to the CA. At the same time, the CA dismissed the petition
against the then respondents from the military, Lt. Gen Alexander Yano and
Gen. Ruben Rafael, based on the finding that it was PNP-CIDG, not the
military, that was involved.
On March 31, 2008, the petitioners moved to reconsider the CA decision, but
the CA denied the motion in its Resolution of April 9, 2008.[73]
THE PETITION
In this Rule 45 appeal questioning the CAs March 7, 2008 decision, the
petitioners mainly dispute the sufficiency in form and substance of the
Amparo petition filed before the CA; the sufficiency of the legal remedies the
respondent took before petitioning for the writ; the finding that the rights to
life, liberty and security of Tagitis had been violated; the sufficiency of
evidence supporting the conclusion that Tagitis was abducted; the conclusion
that the CIDG Zamboanga was responsible for the abduction; and, generally,
the ruling that the respondent discharged the burden of proving the allegations
of the petition by substantial evidence.[74]
THE COURTS RULING
46

We do not find the petition meritorious.
Sufficiency in Form and Substance
In questioning the sufficiency in form and substance of the respondents
Amparo petition, the petitioners contend that the petition violated Section
5(c), (d), and (e) of the Amparo Rule. Specifically, the petitioners allege that
the respondent failed to:
1) allege any act or omission the petitioners committed in violation of
Tagitis rights to life, liberty and security;
2) allege in a complete manner how Tagitis was abducted, the persons
responsible for his disappearance, and the respondents source of information;
3) allege that the abduction was committed at the petitioners instructions or
with their consent;
4) implead the members of CIDG regional office in Zamboanga alleged to
have custody over her husband;
5) attach the affidavits of witnesses to support her accusations;
6) allege any action or inaction attributable to the petitioners in the
performance of their duties in the investigation of Tagitis disappearance; and
7) specify what legally available efforts she took to determine the fate or
whereabouts of her husband.
A petition for the Writ of Amparo shall be signed and verified and shall
allege, among others (in terms of the portions the petitioners cite):[75]
(c) The right to life, liberty and security of the aggrieved party violated or
threatened with violation by an unlawful act or omission of the respondent,
and how such threat or violation is committed with the attendant
circumstances detailed in supporting affidavits;
(d) The investigation conducted, if any, specifying the names, personal
circumstances, and addresses of the investigating authority or individuals, as
well as the manner and conduct of the investigation, together with any report;
(e) The actions and recourses taken by the petitioner to determine the fate or
whereabouts of the aggrieved party and the identity of the person responsible
for the threat, act or omission; and
The framers of the Amparo Rule never intended Section 5(c) to be complete
in every detail in stating the threatened or actual violation of a victims rights.
As in any other initiatory pleading, the pleader must of course state the
ultimate facts constituting the cause of action, omitting the evidentiary
details.[76] In an Amparo petition, however, this requirement must be read in
light of the nature and purpose of the proceeding, which addresses a situation
of uncertainty; the petitioner may not be able to describe with certainty how
the victim exactly disappeared, or who actually acted to kidnap, abduct or
arrest him or her, or where the victim is detained, because these information
may purposely be hidden or covered up by those who caused the
disappearance. In this type of situation, to require the level of specificity,
detail and precision that the petitioners apparently want to read into the
Amparo Rule is to make this Rule a token gesture of judicial concern for
violations of the constitutional rights to life, liberty and security.
47

To read the Rules of Court requirement on pleadings while addressing the
unique Amparo situation, the test in reading the petition should be to
determine whether it contains the details available to the petitioner under the
circumstances, while presenting a cause of action showing a violation of the
victims rights to life, liberty and security through State or private party action.
The petition should likewise be read in its totality, rather than in terms of its
isolated component parts, to determine if the required elements namely, of
the disappearance, the State or private action, and the actual or threatened
violations of the rights to life, liberty or security are present.
In the present case, the petition amply recites in its paragraphs 4 to 11 the
circumstances under which Tagitis suddenly dropped out of sight after
engaging in normal activities, and thereafter was nowhere to be found despite
efforts to locate him. The petition alleged, too, under its paragraph 7, in
relation to paragraphs 15 and 16, that according to reliable information, police
operatives were the perpetrators of the abduction. It also clearly alleged how
Tagitis rights to life, liberty and security were violated when he was forcibly
taken and boarded on a motor vehicle by a couple of burly men believed to
be police intelligence operatives, and then taken into custody by the
respondents police intelligence operatives since October 30, 2007,
specifically by the CIDG, PNP Zamboanga City, x x x held against his will
in an earnest attempt of the police to involve and connect [him] with different
terrorist groups.[77]
These allegations, in our view, properly pleaded ultimate facts within the
pleaders knowledge about Tagitis disappearance, the participation by agents
of the State in this disappearance, the failure of the State to release Tagitis or
to provide sufficient information about his whereabouts, as well as the actual
violation of his right to liberty. Thus, the petition cannot be faulted for any
failure in its statement of a cause of action.
If a defect can at all be attributed to the petition, this defect is its lack of
supporting affidavit, as required by Section 5(c) of the Amparo Rule. Owing
to the summary nature of the proceedings for the writ and to facilitate the
resolution of the petition, the Amparo Rule incorporated the requirement for
supporting affidavits, with the annotation that these can be used as the affiants
direct testimony.[78] This requirement, however, should not be read as an
absolute one that necessarily leads to the dismissal of the petition if not
strictly followed. Where, as in this case, the petitioner has substantially
complied with the requirement by submitting a verified petition sufficiently
detailing the facts relied upon, the strict need for the sworn statement that an
affidavit represents is essentially fulfilled. We note that the failure to attach
the required affidavits was fully cured when the respondent and her witness
(Mrs. Talbin) personally testified in the CA hearings held on January 7 and
17 and February 18, 2008 to swear to and flesh out the allegations of the
petition. Thus, even on this point, the petition cannot be faulted.
Section 5(d) of the Amparo Rule requires that prior investigation of an alleged
disappearance must have been made, specifying the manner and results of the
investigation. Effectively, this requirement seeks to establish at the earliest
opportunity the level of diligence the public authorities undertook in relation
with the reported disappearance.[79]
We reject the petitioners argument that the respondents petition did not
comply with the Section 5(d) requirements of the Amparo Rule, as the
petition specifies in its paragraph 11 that Kunnong and his companions
immediately reported Tagitis disappearance to the police authorities in Jolo,
Sulu as soon as they were relatively certain that he indeed had disappeared.
The police, however, gave them the ready answer that Tagitis could have been
abducted by the Abu Sayyaf group or other anti-government groups. The
respondent also alleged in paragraphs 17 and 18 of her petition that she filed
a complaint with the PNP Police Station in Cotobato and in Jolo, but she was
told of an intriguing tale by the police that her husband was having a good
time with another woman. The disappearance was alleged to have been
reported, too, to no less than the Governor of the ARMM, followed by the
respondents personal inquiries that yielded the factual bases for her
petition.[80]
48

These allegations, to our mind, sufficiently specify that reports have been
made to the police authorities, and that investigations should have followed.
That the petition did not state the manner and results of the investigation that
the Amparo Rule requires, but rather generally stated the inaction of the
police, their failure to perform their duty to investigate, or at the very least,
their reported failed efforts, should not be a reflection on the completeness of
the petition. To require the respondent to elaborately specify the names,
personal circumstances, and addresses of the investigating authority, as well
the manner and conduct of the investigation is an overly strict interpretation
of Section 5(d), given the respondents frustrations in securing an
investigation with meaningful results. Under these circumstances, we are
more than satisfied that the allegations of the petition on the investigations
undertaken are sufficiently complete for purposes of bringing the petition
forward.
Section 5(e) is in the Amparo Rule to prevent the use of a petition that
otherwise is not supported by sufficient allegations to constitute a proper
cause of action as a means to fish for evidence.[81] The petitioners contend
that the respondents petition did not specify what legally available efforts
were taken by the respondent, and that there was an undue haste in the filing
of the petition when, instead of cooperating with authorities, the respondent
immediately invoked the Courts intervention.
We do not see the respondents petition as the petitioners view it.
Section 5(e) merely requires that the Amparo petitioner (the respondent in the
present case) allege the actions and recourses taken to determine the fate or
whereabouts of the aggrieved party and the identity of the person responsible
for the threat, act or omission. The following allegations of the respondents
petition duly outlined the actions she had taken and the frustrations she
encountered, thus compelling her to file her petition.
xxxx
7. Soon after the student left the room, Engr. Tagitis went out of the pension
house to take his early lunch but while out on the street, a couple of burly
men believed to be police intelligence operatives, forcibly took him and
boarded the latter on a motor vehicle then sped away without the knowledge
of his student, Arsimin Kunnong;
xxxx
10. When Kunnong could not locate Engr. Tagitis, the former sought the help
of another IDB scholar and reported the matter to the local police agency;
11. Arsimin Kunnong, including his friends and companions in Jolo, exerted
efforts in trying to locate the whereabouts of Engr. Tagitis and when he
reported the matter to the police authorities in Jolo, he was immediately given
a ready answer that Engr. Tagitis could [have been] abducted by the Abu
Sayyaf group and other groups known to be fighting against the government;
12. Being scared with these suggestions and insinuations of the police
officers, Kunnong reported the matter to the [respondent](wife of Engr.
Tagitis) by phone and other responsible officers and coordinators of the IDB
Scholarship Programme in the Philippines who alerted the office of the
Governor of ARMM who was then preparing to attend the OIC meeting in
Jeddah, Saudi Arabia;
13. [The respondent], on the other hand, approached some of her co-
employees with the Land Bank in Digos branch, Digos City, Davao del Sur,
49
who likewise sought help from some of their friends in the military who could
help them find/locate the whereabouts of her husband;
xxxx
15. According to reliable information received by the [respondent], subject
Engr. Tagitis is in the custody of police intelligence operatives, specifically
with the CIDG, PNP Zamboanga City, being held against his will in an
earnest attempt of the police to involve and connect Engr. Tagitis with the
different terrorist groups;
xxxx
17. [The respondent] filed her complaint with the PNP Police Station at the
ARMM in Cotobato and in Jolo, as suggested by her friends, seeking their
help to find her husband, but [the respondents] request and pleadings failed
to produce any positive results
xxxx
20. Lately, [respondent] was again advised by one of the [petitioners] to go
to the ARMM Police Headquarters again in Cotobato City and also to the
different Police Headquarters including the police headquarters in Davao
City, in Zamboanga City, in Jolo, and in Camp Crame, Quezon City, and all
these places have been visited by the [respondent] in search for her husband,
which entailed expenses for her trips to these places thereby resorting her to
borrowings and beggings [sic] for financial help from friends and relatives
only to try complying to the different suggestions of these police officers,
despite of which, her efforts produced no positive results up to the present
time;
xxxx
25. [The respondent] has exhausted all administrative avenues and remedies
but to no avail, and under the circumstances, [respondent] has no other plain,
speedy and adequate remedy to protect and get the release of subject Engr.
Morced Tagitis from the illegal clutches of [the petitioners], their intelligence
operatives and the like which are in total violation of the subjects human and
constitutional rights, except the issuance of a WRIT OF AMPARO.
Based on these considerations, we rule that the respondents petition for the
Writ of Amparo is sufficient in form and substance and that the Court of
Appeals had every reason to proceed with its consideration of the case.
The Desaparecidos
The present case is one of first impression in the use and application of the
Rule on the Writ of Amparo in an enforced disappearance situation. For a
deeper appreciation of the application of this Rule to an enforced
disappearance situation, a brief look at the historical context of the writ and
enforced disappearances would be very helpful.
The phenomenon of enforced disappearance arising from State action first
attracted notice in Adolf Hitlers Nact und Nebel Erlass or Night and Fog
Decree of December 7, 1941.[82] The Third Reichs Night and Fog Program,
a State policy, was directed at persons in occupied territories endangering
German security; they were transported secretly to Germany where they
disappeared without a trace. In order to maximize the desired intimidating
50
effect, the policy prohibited government officials from providing information
about the fate of these targeted persons.[83]
In the mid-1970s, the phenomenon of enforced disappearances resurfaced,
shocking and outraging the world when individuals, numbering anywhere
from 6,000 to 24,000, were reported to have disappeared during the military
regime in Argentina. Enforced disappearances spread in Latin America, and
the issue became an international concern when the world noted its
widespread and systematic use by State security forces in that continent under
Operation Condor[84] and during the Dirty War[85] in the 1970s and 1980s.
The escalation of the practice saw political activists secretly arrested,
tortured, and killed as part of governments counter-insurgency campaigns.
As this form of political brutality became routine elsewhere in the continent,
the Latin American media standardized the term disappearance to describe
the phenomenon. The victims of enforced disappearances were called the
desaparecidos,[86] which literally means the disappeared ones.[87] In
general, there are three different kinds of disappearance cases:
1) those of people arrested without witnesses or without positive
identification of the arresting agents and are never found again;
2) those of prisoners who are usually arrested without an appropriate
warrant and held in complete isolation for weeks or months while their
families are unable to discover their whereabouts and the military authorities
deny having them in custody until they eventually reappear in one detention
center or another; and
3) those of victims of salvaging who have disappeared until their lifeless
bodies are later discovered.[88]
In the Philippines, enforced disappearances generally fall within the first two
categories,[89] and 855 cases were recorded during the period of martial law
from 1972 until 1986. Of this number, 595 remained missing, 132 surfaced
alive and 127 were found dead. During former President Corazon C. Aquinos
term, 820 people were reported to have disappeared and of these, 612 cases
were documented. Of this number, 407 remain missing, 108 surfaced alive
and 97 were found dead. The number of enforced disappearances dropped
during former President Fidel V. Ramos term when only 87 cases were
reported, while the three-year term of former President Joseph E. Estrada
yielded 58 reported cases. KARAPATAN, a local non-governmental
organization, reports that as of March 31, 2008, the records show that there
were a total of 193 victims of enforced disappearance under incumbent
President Gloria M. Arroyos administration. The Commission on Human
Rights records show a total of 636 verified cases of enforced disappearances
from 1985 to 1993. Of this number, 406 remained missing, 92 surfaced alive,
62 were found dead, and 76 still have undetermined status.[90] Currently, the
United Nations Working Group on Enforced or Involuntary
Disappearance[91] reports 619 outstanding cases of enforced or involuntary
disappearances covering the period December 1, 2007 to November 30,
2008.[92]
Enforced Disappearances
Under Philippine Law
The Amparo Rule expressly provides that the writ shall cover extralegal
killings and enforced disappearances or threats thereof.[93] We note that
although the writ specifically covers enforced disappearances, this concept is
neither defined nor penalized in this jurisdiction. The records of the Supreme
Court Committee on the Revision of Rules (Committee) reveal that the
drafters of the Amparo Rule initially considered providing an elemental
definition of the concept of enforced disappearance:[94]
51
JUSTICE MARTINEZ: I believe that first and foremost we should come up
or formulate a specific definition [for] extrajudicial killings and enforced
disappearances. From that definition, then we can proceed to formulate the
rules, definite rules concerning the same.
CHIEF JUSTICE PUNO: As things stand, there is no law penalizing
extrajudicial killings and enforced disappearances so initially also we have to
[come up with] the nature of these extrajudicial killings and enforced
disappearances [to be covered by the Rule] because our concept of killings
and disappearances will define the jurisdiction of the courts. So well have to
agree among ourselves about the nature of killings and disappearances for
instance, in other jurisdictions, the rules only cover state actors. That is an
element incorporated in their concept of extrajudicial killings and enforced
disappearances. In other jurisdictions, the concept includes acts and
omissions not only of state actors but also of non state actors. Well, more
specifically in the case of the Philippines for instance, should these rules
include the killings, the disappearances which may be authored by let us say,
the NPAs or the leftist organizations and others. So, again we need to define
the nature of the extrajudicial killings and enforced disappearances that will
be covered by these rules. [Emphasis supplied] [95]
In the end, the Committee took cognizance of several bills filed in the House
of Representatives[96] and in the Senate[97] on extrajudicial killings and
enforced disappearances, and resolved to do away with a clear textual
definition of these terms in the Rule. The Committee instead focused on the
nature and scope of the concerns within its power to address and provided the
appropriate remedy therefor, mindful that an elemental definition may intrude
into the ongoing legislative efforts.[98]
As the law now stands, extra-judicial killings and enforced disappearances in
this jurisdiction are not crimes penalized separately from the component
criminal acts undertaken to carry out these killings and enforced
disappearances and are now penalized under the Revised Penal Code and
special laws.[99] The simple reason is that the Legislature has not spoken on
the matter; the determination of what acts are criminal and what the
corresponding penalty these criminal acts should carry are matters of
substantive law that only the Legislature has the power to enact under the
countrys constitutional scheme and power structure.
Even without the benefit of directly applicable substantive laws on extra-
judicial killings and enforced disappearances, however, the Supreme Court is
not powerless to act under its own constitutional mandate to promulgate rules
concerning the protection and enforcement of constitutional rights, pleading,
practice and procedure in all courts,[100] since extrajudicial killings and
enforced disappearances, by their nature and purpose, constitute State or
private party violation of the constitutional rights of individuals to life, liberty
and security. Although the Courts power is strictly procedural and as such
does not diminish, increase or modify substantive rights, the legal protection
that the Court can provide can be very meaningful through the procedures it
sets in addressing extrajudicial killings and enforced disappearances. The
Court, through its procedural rules, can set the procedural standards and
thereby directly compel the public authorities to act on actual or threatened
violations of constitutional rights. To state the obvious, judicial intervention
can make a difference even if only procedurally in a situation when the very
same investigating public authorities may have had a hand in the threatened
or actual violations of constitutional rights.
Lest this Court intervention be misunderstood, we clarify once again that we
do not rule on any issue of criminal culpability for the extrajudicial killing or
enforced disappearance. This is an issue that requires criminal action before
our criminal courts based on our existing penal laws. Our intervention is in
determining whether an enforced disappearance has taken place and who is
responsible or accountable for this disappearance, and to define and impose
the appropriate remedies to address it. The burden for the public authorities
to discharge in these situations, under the Rule on the Writ of Amparo, is
twofold. The first is to ensure that all efforts at disclosure and investigation
are undertaken under pain of indirect contempt from this Court when
governmental efforts are less than what the individual situations require. The
second is to address the disappearance, so that the life of the victim is
preserved and his or her liberty and security restored. In these senses, our
orders and directives relative to the writ are continuing efforts that are not
52
truly terminated until the extrajudicial killing or enforced disappearance is
fully addressed by the complete determination of the fate and the whereabouts
of the victim, by the production of the disappeared person and the restoration
of his or her liberty and security, and, in the proper case, by the
commencement of criminal action against the guilty parties.
Enforced Disappearance
Under International Law
From the International Law perspective, involuntary or enforced
disappearance is considered a flagrant violation of human rights.[101] It does
not only violate the right to life, liberty and security of the desaparecido; it
affects their families as well through the denial of their right to information
regarding the circumstances of the disappeared family member. Thus,
enforced disappearances have been said to be a double form of torture, with
doubly paralyzing impact for the victims, as they are kept ignorant of their
own fates, while family members are deprived of knowing the whereabouts
of their detained loved ones and suffer as well the serious economic hardship
and poverty that in most cases follow the disappearance of the household
breadwinner.[102]
The UN General Assembly first considered the issue of Disappeared Persons
in December 1978 under Resolution 33/173. The Resolution expressed the
General Assemblys deep concern arising from reports from various parts of
the world relating to enforced or involuntary disappearances, and requested
the UN Commission on Human Rights to consider the issue of enforced
disappearances with a view to making appropriate recommendations.[103]
In 1992, in response to the reality that the insidious practice of enforced
disappearance had become a global phenomenon, the UN General Assembly
adopted the Declaration on the Protection of All Persons from Enforced
Disappearance (Declaration).[104] This Declaration, for the first time,
provided in its third preambular clause a working description of enforced
disappearance, as follows:
Deeply concerned that in many countries, often in a persistent manner,
enforced disappearances occur, in the sense that persons are arrested,
detained or abducted against their will or otherwise deprived of their liberty
by officials of different branches or levels of Government, or by organized
groups or private individuals acting on behalf of, or with the support, direct
or indirect, consent or acquiescence of the Government, followed by a refusal
to disclose the fate or whereabouts of the persons concerned or a refusal to
acknowledge the deprivation of their liberty, which places such persons
outside the protection of the law. [Emphasis supplied]
Fourteen years after (or on December 20, 2006), the UN General Assembly
adopted the International Convention for the Protection of All Persons from
Enforced Disappearance (Convention).[105] The Convention was opened for
signature in Paris, France on February 6, 2007.[106] Article 2 of the
Convention defined enforced disappearance as follows:
For the purposes of this Convention, enforced disappearance is considered to
be the arrest, detention, abduction or any other form of deprivation of liberty
by agents of the State or by persons or groups of persons acting with the
authorization, support or acquiescence of the State, followed by a refusal to
acknowledge the deprivation of liberty or by concealment of the fate or
whereabouts of the disappeared person, which place such a person outside
the protection of the law. [Emphasis supplied]
53

The Convention is the first universal human rights instrument to assert that
there is a right not to be subject to enforced disappearance[107] and that this
right is non-derogable.[108] It provides that no one shall be subjected to
enforced disappearance under any circumstances, be it a state of war, internal
political instability, or any other public emergency. It obliges State Parties to
codify enforced disappearance as an offense punishable with appropriate
penalties under their criminal law.[109] It also recognizes the right of
relatives of the disappeared persons and of the society as a whole to know the
truth on the fate and whereabouts of the disappeared and on the progress and
results of the investigation.[110] Lastly, it classifies enforced disappearance
as a continuing offense, such that statutes of limitations shall not apply until
the fate and whereabouts of the victim are established.[111]
Binding Effect of UN
Action on the Philippines
To date, the Philippines has neither signed nor ratified the Convention, so that
the country is not yet committed to enact any law penalizing enforced
disappearance as a crime. The absence of a specific penal law, however, is
not a stumbling block for action from this Court, as heretofore mentioned;
underlying every enforced disappearance is a violation of the constitutional
rights to life, liberty and security that the Supreme Court is mandated by the
Constitution to protect through its rule-making powers.
Separately from the Constitution (but still pursuant to its terms), the Court is
guided, in acting on Amparo cases, by the reality that the Philippines is a
member of the UN, bound by its Charter and by the various conventions we
signed and ratified, particularly the conventions touching on humans rights.
Under the UN Charter, the Philippines pledged to promote universal respect
for, and observance of, human rights and fundamental freedoms for all
without distinctions as to race, sex, language or religion.[112] Although no
universal agreement has been reached on the precise extent of the human
rights and fundamental freedoms guaranteed to all by the Charter,[113] it was
the UN itself that issued the Declaration on enforced disappearance, and this
Declaration states:[114]
Any act of enforced disappearance is an offence to dignity. It is condemned
as a denial of the purposes of the Charter of the United Nations and as a grave
and flagrant violation of human rights and fundamental freedoms proclaimed
in the Universal Declaration of Human Rights and reaffirmed and developed
in international instruments in this field. [Emphasis supplied]
As a matter of human right and fundamental freedom and as a policy matter
made in a UN Declaration, the ban on enforced disappearance cannot but
have its effects on the country, given our own adherence to generally accepted
principles of international law as part of the law of the land.[115]
In the recent case of Pharmaceutical and Health Care Association of the
Philippines v. Duque III,[116] we held that:
Under the 1987 Constitution, international law can become part of the sphere
of domestic law either by transformation or incorporation. The
transformation method requires that an international law be transformed into
a domestic law through a constitutional mechanism such as local legislation.
The incorporation method applies when, by mere constitutional declaration,
international law is deemed to have the force of domestic law. [Emphasis
supplied]
54
We characterized generally accepted principles of international law as norms
of general or customary international law that are binding on all states. We
held further:[117]
[G]enerally accepted principles of international law, by virtue of the
incorporation clause of the Constitution, form part of the laws of the land
even if they do not derive from treaty obligations. The classical formulation
in international law sees those customary rules accepted as binding result
from the combination [of] two elements: the established, widespread, and
consistent practice on the part of States; and a psychological element known
as the opinion juris sive necessitates (opinion as to law or necessity). Implicit
in the latter element is a belief that the practice in question is rendered
obligatory by the existence of a rule of law requiring it. [Emphasis in the
original]
The most widely accepted statement of sources of international law today is
Article 38(1) of the Statute of the International Court of Justice, which
provides that the Court shall apply international custom, as evidence of a
general practice accepted as law.[118] The material sources of custom
include State practice, State legislation, international and national judicial
decisions, recitals in treaties and other international instruments, a pattern of
treaties in the same form, the practice of international organs, and resolutions
relating to legal questions in the UN General Assembly.[119] Sometimes
referred to as evidence of international law,[120] these sources identify the
substance and content of the obligations of States and are indicative of the
State practice and opinio juris requirements of international law.[121] We
note the following in these respects:
First, barely two years from the adoption of the Declaration, the Organization
of American States (OAS) General Assembly adopted the Inter-American
Convention on Enforced Disappearance of Persons in June 1994.[122] State
parties undertook under this Convention not to practice, permit, or tolerate
the forced disappearance of persons, even in states of emergency or
suspension of individual guarantees.[123] One of the key provisions includes
the States obligation to enact the crime of forced disappearance in their
respective national criminal laws and to establish jurisdiction over such cases
when the crime was committed within their jurisdiction, when the victim is a
national of that State, and when the alleged criminal is within its territory and
it does not proceed to extradite him, which can be interpreted as establishing
universal jurisdiction among the parties to the Inter-American
Convention.[124] At present, Colombia, Guatemala, Paraguay, Peru and
Venezuela have enacted separate laws in accordance with the Inter-American
Convention and have defined activities involving enforced disappearance to
be criminal.[125]
Second, in Europe, the European Convention on Human Rights has no
explicit provision dealing with the protection against enforced disappearance.
The European Court of Human Rights (ECHR), however, has applied the
Convention in a way that provides ample protection for the underlying rights
affected by enforced disappearance through the Conventions Article 2 on the
right to life; Article 3 on the prohibition of torture; Article 5 on the right to
liberty and security; Article 6, paragraph 1 on the right to a fair trial; and
Article 13 on the right to an effective remedy. A leading example
demonstrating the protection afforded by the European Convention is Kurt v.
Turkey,[126] where the ECHR found a violation of the right to liberty and
security of the disappeared person when the applicants son disappeared after
being taken into custody by Turkish forces in the Kurdish village of Agilli in
November 1993. It further found the applicant (the disappeared persons
mother) to be a victim of a violation of Article 3, as a result of the silence of
the authorities and the inadequate character of the investigations undertaken.
The ECHR also saw the lack of any meaningful investigation by the State as
a violation of Article 13.[127]
Third, in the United States, the status of the prohibition on enforced
disappearance as part of customary international law is recognized in the most
recent edition of Restatement of the Law: The Third,[128] which provides
that [a] State violates international law if, as a matter of State policy, it
practices, encourages, or condones (3) the murder or causing the
disappearance of individuals.[129] We significantly note that in a related
matter that finds close identification with enforced disappearance the matter
55
of torture the United States Court of Appeals for the Second Circuit Court
held in Filartiga v. Pena-Irala[130] that the prohibition on torture had attained
the status of customary international law. The court further elaborated on the
significance of UN declarations, as follows:
These U.N. declarations are significant because they specify with great
precision the obligations of member nations under the Charter. Since their
adoption, "(m)embers can no longer contend that they do not know what
human rights they promised in the Charter to promote. Moreover, a U.N.
Declaration is, according to one authoritative definition, "a formal and
solemn instrument, suitable for rare occasions when principles of great and
lasting importance are being enunciated. Accordingly, it has been observed
that the Universal Declaration of Human Rights "no longer fits into the
dichotomy of binding treaty against non-binding pronouncement,' but is
rather an authoritative statement of the international community." Thus, a
Declaration creates an expectation of adherence, and "insofar as the
expectation is gradually justified by State practice, a declaration may by
custom become recognized as laying down rules binding upon the States."
Indeed, several commentators have concluded that the Universal Declaration
has become, in toto, a part of binding, customary international law. [Citations
omitted]
Fourth, in interpreting Article 2 (right to an effective domestic remedy) of the
International Convention on Civil and Political Rights (ICCPR), to which the
Philippines is both a signatory and a State Party, the UN Human Rights
Committee, under the Office of the High Commissioner for Human Rights,
has stated that the act of enforced disappearance violates Articles 6 (right to
life), 7 (prohibition on torture, cruel, inhuman or degrading treatment or
punishment) and 9 (right to liberty and security of the person) of the ICCPR,
and the act may also amount to a crime against humanity.[131]
Fifth, Article 7, paragraph 1 of the 1998 Rome Statute establishing the
International Criminal Court (ICC) also covers enforced disappearances
insofar as they are defined as crimes against humanity,[132] i.e., crimes
committed as part of a widespread or systematic attack against any civilian
population, with knowledge of the attack. While more than 100 countries
have ratified the Rome Statute,[133] the Philippines is still merely a signatory
and has not yet ratified it. We note that Article 7(1) of the Rome Statute has
been incorporated in the statutes of other international and hybrid tribunals,
including Sierra Leone Special Court, the Special Panels for Serious Crimes
in Timor-Leste, and the Extraordinary Chambers in the Courts of
Cambodia.[134] In addition, the implementing legislation of State Parties to
the Rome Statute of the ICC has given rise to a number of national criminal
provisions also covering enforced disappearance.[135]
While the Philippines is not yet formally bound by the terms of the
Convention on enforced disappearance (or by the specific terms of the Rome
Statute) and has not formally declared enforced disappearance as a specific
crime, the above recital shows that enforced disappearance as a State practice
has been repudiated by the international community, so that the ban on it is
now a generally accepted principle of international law, which we should
consider a part of the law of the land, and which we should act upon to the
extent already allowed under our laws and the international conventions that
bind us.
The following civil or political rights under the Universal Declaration of
Human Rights, the ICCPR and the International Convention on Economic,
Social and Cultural Rights (ICESR) may be infringed in the course of a
disappearance:[136]
1) the right to recognition as a person before the law;
2) the right to liberty and security of the person;
3) the right not to be subjected to torture and other cruel, inhuman or
degrading treatment or punishment;
4) the right to life, when the disappeared person is killed;
5) the right to an identity;
56

6) the right to a fair trial and to judicial guarantees;
7) the right to an effective remedy, including reparation and compensation;
8) the right to know the truth regarding the circumstances of a disappearance.
9) the right to protection and assistance to the family;
10) the right to an adequate standard of living;
11) the right to health; and
12) the right to education [Emphasis supplied]
Article 2 of the ICCPR, which binds the Philippines as a state party, provides:
Article 2
3. Each State Party to the present Covenant undertakes:
(a) To ensure that any person whose rights or freedoms as herein recognized
are violated shall have an effective remedy, notwithstanding that the violation
has been committed by persons acting in an official capacity;
(b) To ensure that any person claiming such a remedy shall have his right
thereto determined by competent judicial, administrative or legislative
authorities, or by any other competent authority provided for by the legal
system of the State, and to develop the possibilities of judicial remedy;
(c) To ensure that the competent authorities shall enforce such remedies when
granted. [Emphasis supplied]
In General Comment No. 31, the UN Human Rights Committee opined that
the right to an effective remedy under Article 2 of the ICCPR includes the
obligation of the State to investigate ICCPR violations promptly, thoroughly,
and effectively, viz:[137]
15. Article 2, paragraph 3, requires that in addition to effective protection of
Covenant rights, States Parties must ensure that individuals also have
accessible and effective remedies to vindicate those rights The Committee
attaches importance to States Parties' establishing appropriate judicial and
administrative mechanisms for addressing claims of rights violations under
domestic law Administrative mechanisms are particularly required to give
effect to the general obligation to investigate allegations of violations
promptly, thoroughly and effectively through independent and impartial
bodies. A failure by a State Party to investigate allegations of violations could
in and of itself give rise to a separate breach of the Covenant. Cessation of an
ongoing violation is an essential element of the right to an effective remedy.
[Emphasis supplied]
The UN Human Rights Committee further stated in the same General
Comment No. 31 that failure to investigate as well as failure to bring to justice
the perpetrators of ICCPR violations could in and of itself give rise to a
separate breach of the Covenant, thus:[138]
18. Where the investigations referred to in paragraph 15 reveal violations of
certain Covenant rights, States Parties must ensure that those responsible are
brought to justice. As with failure to investigate, failure to bring to justice
perpetrators of such violations could in and of itself give rise to a separate
breach of the Covenant. These obligations arise notably in respect of those
violations recognized as criminal under either domestic or international law,
such as torture and similar cruel, inhuman and degrading treatment (article
7), summary and arbitrary killing (article 6) and enforced disappearance
(articles 7 and 9 and, frequently, 6). Indeed, the problem of impunity for these
violations, a matter of sustained concern by the Committee, may well be an
important contributing element in the recurrence of the violations. When
committed as part of a widespread or systematic attack on a civilian
57
population, these violations of the Covenant are crimes against humanity (see
Rome Statute of the International Criminal Court, article 7). [Emphasis
supplied]
In Secretary of National Defense v. Manalo,[139] this Court, in ruling that
the right to security of persons is a guarantee of the protection of ones right
by the government, held that:
The right to security of person in this third sense is a corollary of the policy
that the State guarantees full respect for human rights under Article II, Section
11 of the 1987 Constitution. As the government is the chief guarantor of order
and security, the Constitutional guarantee of the rights to life, liberty and
security of person is rendered ineffective if government does not afford
protection to these rights especially when they are under threat. Protection
includes conducting effective investigations, organization of the government
apparatus to extend protection to victims of extralegal killings or enforced
disappearances (or threats thereof) and/or their families, and bringing
offenders to the bar of justice. The Inter-American Court of Human Rights
stressed the importance of investigation in the Velasquez Rodriguez Case,
viz:
(The duty to investigate) must be undertaken in a serious manner and not as
a mere formality preordained to be ineffective. An investigation must have
an objective and be assumed by the State as its own legal duty, not as a step
taken by private interests that depends upon the initiative of the victim or his
family or upon their offer of proof, without an effective search for the truth
by the government. [Emphasis supplied]
Manalo significantly cited Kurt v. Turkey,[140] where the ECHR interpreted
the right to security not only as a prohibition on the State against arbitrary
deprivation of liberty, but also as the imposition of a positive duty to afford
protection to the right to liberty. The Court notably quoted the following
ECHR ruling:
[A]ny deprivation of liberty must not only have been effected in conformity
with the substantive and procedural rules of national law but must equally be
in keeping with the very purpose of Article 5, namely to protect the individual
from arbitrariness... Having assumed control over that individual, it is
incumbent on the authorities to account for his or her whereabouts. For this
reason, Article 5 must be seen as requiring the authorities to take effective
measures to safeguard against the risk of disappearance and to conduct a
prompt effective investigation into an arguable claim that a person has been
taken into custody and has not been seen since. [Emphasis supplied]
These rulings effectively serve as the backdrop for the Rule on the Writ of
Amparo, which the Court made effective on October 24, 2007. Although the
Amparo Rule still has gaps waiting to be filled through substantive law, as
evidenced primarily by the lack of a concrete definition of enforced
disappearance, the materials cited above, among others, provide ample
guidance and standards on how, through the medium of the Amparo Rule, the
Court can provide remedies and protect the constitutional rights to life, liberty
and security that underlie every enforced disappearance.
Evidentiary Difficulties Posed
by the Unique Nature of an
Enforced Disappearance
Before going into the issue of whether the respondent has discharged the
burden of proving the allegations of the petition for the Writ of Amparo by
the degree of proof required by the Amparo Rule, we shall discuss briefly the
unique evidentiary difficulties presented by enforced disappearance cases;
these difficulties form part of the setting that the implementation of the
Amparo Rule shall encounter.
58

These difficulties largely arise because the State itself the party whose
involvement is alleged investigates enforced disappearances. Past
experiences in other jurisdictions show that the evidentiary difficulties are
generally threefold.
First, there may be a deliberate concealment of the identities of the direct
perpetrators.[141] Experts note that abductors are well organized, armed and
usually members of the military or police forces, thus:
The victim is generally arrested by the security forces or by persons acting
under some form of governmental authority. In many countries the units that
plan, implement and execute the program are generally specialized, highly-
secret bodies within the armed or security forces. They are generally directed
through a separate, clandestine chain of command, but they have the
necessary credentials to avoid or prevent any interference by the "legal"
police forces. These authorities take their victims to secret detention centers
where they subject them to interrogation and torture without fear of judicial
or other controls.[142]
In addition, there are usually no witnesses to the crime; if there are, these
witnesses are usually afraid to speak out publicly or to testify on the
disappearance out of fear for their own lives.[143] We have had occasion to
note this difficulty in Secretary of Defense v. Manalo[144] when we
acknowledged that where powerful military officers are implicated, the
hesitation of witnesses to surface and testify against them comes as no
surprise.
Second, deliberate concealment of pertinent evidence of the disappearance is
a distinct possibility; the central piece of evidence in an enforced
disappearance i.e., the corpus delicti or the victims body is usually concealed
to effectively thwart the start of any investigation or the progress of one that
may have begun.[145] The problem for the victims family is the States virtual
monopoly of access to pertinent evidence. The Inter-American Court of
Human Rights (IACHR) observed in the landmark case of Velasquez
Rodriguez[146] that inherent to the practice of enforced disappearance is the
deliberate use of the States power to destroy the pertinent evidence. The
IACHR described the concealment as a clear attempt by the State to commit
the perfect crime.[147]
Third is the element of denial; in many cases, the State authorities deliberately
deny that the enforced disappearance ever occurred.[148] Deniability is
central to the policy of enforced disappearances, as the absence of any proven
disappearance makes it easier to escape the application of legal standards
ensuring the victims human rights.[149] Experience shows that government
officials typically respond to requests for information about desaparecidos by
saying that they are not aware of any disappearance, that the missing people
may have fled the country, or that their names have merely been
invented.[150]
These considerations are alive in our minds, as these are the difficulties we
confront, in one form or another, in our consideration of this case.
Evidence and Burden of Proof in
Enforced Disappearances Cases
Sections 13, 17 and 18 of the Amparo Rule define the nature of an Amparo
proceeding and the degree and burden of proof the parties to the case carry,
as follows:
Section 13. Summary Hearing. The hearing on the petition shall be summary.
However, the court, justice or judge may call for a preliminary conference to
59
simplify the issues and determine the possibility of obtaining stipulations and
admissions from the parties.
xxxx
Section 17. Burden of Proof and Standard of Diligence Required. The parties
shall establish their claims by substantial evidence.
The respondent who is a private individual must prove that ordinary diligence
as required by applicable laws, rules and regulations was observed in the
performance of duty.
The respondent who is a public official or employee must prove that
extraordinary diligence as required by applicable laws, rules and regulations
was observed in the performance of duty.
The respondent public official or employee cannot invoke the presumption
that official duty has been regularly performed or evade responsibility or
liability.
Section 18. Judgment. If the allegations in the petition are proven by
substantial evidence, the court shall grant the privilege of the writ and such
reliefs as may be proper and appropriate; otherwise, the privilege shall be
denied. [Emphasis supplied]
These characteristics namely, of being summary and the use of substantial
evidence as the required level of proof (in contrast to the usual preponderance
of evidence or proof beyond reasonable doubt in court proceedings) reveal
the clear intent of the framers of the Amparo Rule to have the equivalent of
an administrative proceeding, albeit judicially conducted, in addressing
Amparo situations. The standard of diligence required the duty of public
officials and employees to observe extraordinary diligence point, too, to the
extraordinary measures expected in the protection of constitutional rights and
in the consequent handling and investigation of extra-judicial killings and
enforced disappearance cases.
Thus, in these proceedings, the Amparo petitioner needs only to properly
comply with the substance and form requirements of a Writ of Amparo
petition, as discussed above, and prove the allegations by substantial
evidence. Once a rebuttable case has been proven, the respondents must then
respond and prove their defenses based on the standard of diligence required.
The rebuttable case, of course, must show that an enforced disappearance
took place under circumstances showing a violation of the victims
constitutional rights to life, liberty or security, and the failure on the part of
the investigating authorities to appropriately respond.
The landmark case of Ang Tibay v. Court of Industrial Relations[151]
provided the Court its first opportunity to define the substantial evidence
required to arrive at a valid decision in administrative proceedings. To
directly quote Ang Tibay:
Substantial evidence is more than a mere scintilla. It means such relevant
evidence as a reasonable mind might accept as adequate to support a
conclusion. [citations omitted] The statute provides that the rules of evidence
prevailing in courts of law and equity shall not be controlling. The obvious
purpose of this and similar provisions is to free administrative boards from
the compulsion of technical rules so that the mere admission of matter which
would be deemed incompetent in judicial proceedings would not invalidate
the administrative order. [citations omitted] But this assurance of a desirable
flexibility in administrative procedure does not go so far as to justify orders
without a basis in evidence having rational probative force. [Emphasis
supplied]
In Secretary of Defense v. Manalo,[152] which was the Courts first petition
for a Writ of Amparo, we recognized that the full and exhaustive proceedings
60
that the substantial evidence standard regularly requires do not need to apply
due to the summary nature of Amparo proceedings. We said:
The remedy [of the writ of amparo] provides rapid judicial relief as it partakes
of a summary proceeding that requires only substantial evidence to make the
appropriate reliefs available to the petitioner; it is not an action to determine
criminal guilt requiring proof beyond reasonable doubt, or liability for
damages requiring preponderance of evidence, or administrative
responsibility requiring substantial evidence that will require full and
exhaustive proceedings. [Emphasis supplied]
Not to be forgotten in considering the evidentiary aspects of Amparo petitions
are the unique difficulties presented by the nature of enforced disappearances,
heretofore discussed, which difficulties this Court must frontally meet if the
Amparo Rule is to be given a chance to achieve its objectives. These
evidentiary difficulties compel the Court to adopt standards appropriate and
responsive to the circumstances, without transgressing the due process
requirements that underlie every proceeding.
In the seminal case of Velasquez Rodriguez,[153] the IACHR faced with a
lack of direct evidence that the government of Honduras was involved in
Velasquez Rodriguez disappearance adopted a relaxed and informal
evidentiary standard, and established the rule that presumes governmental
responsibility for a disappearance if it can be proven that the government
carries out a general practice of enforced disappearances and the specific case
can be linked to that practice.[154] The IACHR took note of the realistic fact
that enforced disappearances could be proven only through circumstantial or
indirect evidence or by logical inference; otherwise, it was impossible to
prove that an individual had been made to disappear. It held:
130. The practice of international and domestic courts shows that direct
evidence, whether testimonial or documentary, is not the only type of
evidence that may be legitimately considered in reaching a decision.
Circumstantial evidence, indicia, and presumptions may be considered, so
long as they lead to conclusions consistent with the facts.
131. Circumstantial or presumptive evidence is especially important in
allegations of disappearances, because this type of repression is characterized
by an attempt to suppress all information about the kidnapping or the
whereabouts and fate of the victim. [Emphasis supplied]
In concluding that the disappearance of Manfredo Velsquez (Manfredo) was
carried out by agents who acted under cover of public authority, the IACHR
relied on circumstantial evidence including the hearsay testimony of Zenaida
Velsquez, the victims sister, who described Manfredos kidnapping on the
basis of conversations she had with witnesses who saw Manfredo kidnapped
by men in civilian clothes in broad daylight. She also told the Court that a
former Honduran military official had announced that Manfredo was
kidnapped by a special military squadron acting under orders of the Chief of
the Armed Forces.[155] The IACHR likewise considered the hearsay
testimony of a second witness who asserted that he had been told by a
Honduran military officer about the disappearance, and a third witness who
testified that he had spoken in prison to a man who identified himself as
Manfredo.[156]
Velasquez stresses the lesson that flexibility is necessary under the unique
circumstances that enforced disappearance cases pose to the courts; to have
an effective remedy, the standard of evidence must be responsive to the
evidentiary difficulties faced. On the one hand, we cannot be arbitrary in the
admission and appreciation of evidence, as arbitrariness entails violation of
rights and cannot be used as an effective counter-measure; we only compound
the problem if a wrong is addressed by the commission of another wrong. On
the other hand, we cannot be very strict in our evidentiary rules and cannot
consider evidence the way we do in the usual criminal and civil cases;
precisely, the proceedings before us are administrative in nature where, as a
rule, technical rules of evidence are not strictly observed. Thus, while we
must follow the substantial evidence rule, we must observe flexibility in
considering the evidence we shall take into account.
61

The fair and proper rule, to our mind, is to consider all the pieces of evidence
adduced in their totality, and to consider any evidence otherwise inadmissible
under our usual rules to be admissible if it is consistent with the admissible
evidence adduced. In other words, we reduce our rules to the most basic test
of reason i.e., to the relevance of the evidence to the issue at hand and its
consistency with all other pieces of adduced evidence. Thus, even hearsay
evidence can be admitted if it satisfies this basic minimum test.
We note in this regard that the use of flexibility in the consideration of
evidence is not at all novel in the Philippine legal system. In child abuse cases,
Section 28 of the Rule on Examination of a Child Witness[157] is expressly
recognized as an exception to the hearsay rule. This Rule allows the
admission of the hearsay testimony of a child describing any act or attempted
act of sexual abuse in any criminal or non-criminal proceeding, subject to
certain prerequisites and the right of cross-examination by the adverse party.
The admission of the statement is determined by the court in light of specified
subjective and objective considerations that provide sufficient indicia of
reliability of the child witness.[158] These requisites for admission find their
counterpart in the present case under the above-described conditions for the
exercise of flexibility in the consideration of evidence, including hearsay
evidence, in extrajudicial killings and enforced disappearance cases.
Assessment of the Evidence
The threshold question for our resolution is: was there an enforced
disappearance within the meaning of this term under the UN Declaration we
have cited?
The Convention defines enforced disappearance as the arrest, detention,
abduction or any other form of deprivation of liberty by agents of the State or
by persons or groups of persons acting with the authorization, support or
acquiescence of the State, followed by a refusal to acknowledge the
deprivation of liberty or by concealment of the fate or whereabouts of the
disappeared person, which place such a person outside the protection of the
law.[159] Under this definition, the elements that constitute enforced
disappearance are essentially fourfold:[160]
(a) arrest, detention, abduction or any form of deprivation of liberty;
(b) carried out by agents of the State or persons or groups of persons acting
with the authorization, support or acquiescence of the State;
(c) followed by a refusal to acknowledge the detention, or a concealment of
the fate of the disappeared person; and
(d) placement of the disappeared person outside the protection of the law.
[Emphasis supplied]
We find no direct evidence indicating how the victim actually disappeared.
The direct evidence at hand only shows that Tagitis went out of the ASY
Pension House after depositing his room key with the hotel desk and was
never seen nor heard of again. The undisputed conclusion, however, from all
concerned the petitioner, Tagitis colleagues and even the police authorities is
that Tagistis disappeared under mysterious circumstances and was never seen
again. The respondent injected the causal element in her petition and
testimony, as we shall discuss below.
We likewise find no direct evidence showing that operatives of PNP CIDG
Zamboanga abducted or arrested Tagitis. If at all, only the respondents
62
allegation that Tagistis was under CIDG Zamboanga custody stands on
record, but it is not supported by any other evidence, direct or circumstantial. A: Jemaah Islamiah, sir.

In her direct testimony, the respondent pointed to two sources of information Q: Was there any information that was read to you during one of those visits
as her bases for her allegation that Tagistis had been placed under government of yours in that Camp?
custody (in contrast with CIDG Zamboanga custody). The first was an
unnamed friend in Zamboanga (later identified as Col. Ancanan), who
occupied a high position in the military and who allegedly mentioned that
Tagitis was in good hands. Nothing came out of this claim, as both the A: Col. Casim did not furnish me a copy of his report because he said those
respondent herself and her witness, Mrs. Talbin, failed to establish that Col. reports are highly confidential, sir.
Ancanan gave them any information that Tagitis was in government custody.
Col. Ancanan, for his part, admitted the meeting with the respondent but
denied giving her any information about the disappearance.
Q: Was it read to you then even though you were not furnished a copy?

The more specific and productive source of information was Col. Kasim,
whom the respondent, together with her witness Mrs. Talbin, met in Camp A: Yes, sir. In front of us, my friends.
Katitipan in Davao City. To quote the relevant portions of the respondents
testimony:

Q: And what was the content of that highly confidential report?

Q: Were you able to speak to other military officials regarding the

whereabouts of your husband particularly those in charge of any records or
investigation? A: Those alleged activities of Engineer Tagitis, sir.[161] [Emphasis supplied]

A: I went to Camp Katitipan in Davao City. Then one military officer, Col. She confirmed this testimony in her cross-examination:
Casim, told me that my husband is being abducted [sic] because he is under
custodial investigation because he is allegedly parang liason ng J.I., sir.

Q: You also mentioned that you went to Camp Katitipan in Davao City?

Q: What is J.I.?

A: Yes, maam.

63

Q: And a certain Col. Kasim told you that your husband was abducted and
under custodial investigation?
A: Yes, maam.
Q: And you mentioned that he showed you a report?
A: Yes, maam.
Q: Were you able to read the contents of that report?
A: He did not furnish me a copy of those [sic] report because those [sic] were
highly confidential. That is a military report, maam.
Q: But you were able to read the contents?
A: No. But he read it in front of us, my friends, maam.
Q: How many were you when you went to see Col. Kasim?
A: There were three of us, maam.
Q: Who were your companions?
A: Mrs. Talbin, tapos yung dalawang friends nya from Mati City, Davao
Oriental, maam.[162]
xxxx
Q: When you were told that your husband is in good hands, what was your
reaction and what did you do?
A: May binasa kasi sya that my husband has a parang meeting with other
people na parang mga terorista na mga tao. Tapos at the end of the report is
[sic] under custodial investigation. So I told him Colonel, my husband is sick.
He is diabetic at nagmemaintain yun ng gamot. Pakisabi lang sa naghohold
sa asawa ko na bigyan siya ng gamot, maam.[163]
xxxx
Q: You mentioned that you received information that Engineer Tagitis is
being held by the CIDG in Zamboanga, did you go to CIDG Zamboanga to
verify that information?
64
A: I did not go to CIDG Zamboanga. I went to Camp Karingal instead.
Enough na yun na effort ko because I know that they would deny it,
maam.[164]
On February 11, 2008, the respondent presented Mrs. Talbin to corroborate
her testimony that her husband was abducted and held under custodial
investigation by the PNP-CIDG Zamboanga City, viz:
Q: You said that you went to Camp Katitipan in Davao City sometime
November 24, 2007, who was with you when you went there?
A: Mary Jean Tagitis, sir.
Q: Only the two of you?
A: No. We have some other companions. We were four at that time, sir.
Q: Who were they?
A: Salvacion Serrano, Mini Leong, Mrs. Tagitis and me, sir.
Q: Were you able to talk, see some other officials at Camp Katitipan during
that time?
A: Col. Kasim (PS Supt. Julasirim Ahadin Kasim) only, sir.
Q: Were you able to talk to him?
A: Yes, sir.
Q: The four of you?
A: Yes, sir.
Q: What information did you get from Col. Kasim during that time?
A: The first time we met with [him] I asked him if he knew of the exact
location, if he can furnish us the location of Engr. Tagitis. And he was reading
this report. He told us that Engr. Tagitis is in good hands. He is with the
military, but he is not certain whether he is with the AFP or PNP. He has this
serious case. He was charged of terrorism because he was under surveillance
from January 2007 up to the time that he was abducted. He told us that he
was under custodial investigation. As Ive said earlier, he was seen under
surveillance from January. He was seen talking to Omar Patik, a certain
Santos of Bulacan who is also a Balik Islam and charged with terrorism. He
was seen carrying boxes of medicines. Then we asked him how long will he
be in custodial investigation. He said until we can get some information. But
he also told us that he cannot give us that report because it was a raw report.
It was not official, sir.
65

Q: You said that he was reading a report, was that report in document form,
in a piece of paper or was it in the computer or what?
A: As far as I can see it, sir, it is written in white bond paper. I dont know if
it was computerized but Im certain that it was typewritten. Im not sure if it
used computer, fax or what, sir.
Q: When he was reading it to you, was he reading it line by line or he was
reading in a summary form?
A: Sometimes he was glancing to the report and talking to us, sir.[165]
xxxx
Q: Were you informed as to the place where he was being kept during that
time?
A: He did not tell us where he [Tagitis] was being kept. But he mentioned
this Talipapao, Sulu, sir.
Q: After that incident, what did you do if any?
A: We just left and as Ive mentioned, we just waited because that raw
information that he was reading to us [sic] after the custodial investigation,
Engineer Tagitis will be released. [Emphasis supplied][166]
Col. Kasim never denied that he met with the respondent and her friends, and
that he provided them information based on the input of an unnamed asset.
He simply claimed in his testimony that the informal letter he received from
his informant in Sulu did not indicate that Tagitis was in the custody of the
CIDG. He also stressed that the information he provided the respondent was
merely a raw report from barangay intelligence that still needed confirmation
and follow up as to its veracity.[167]
To be sure, the respondents and Mrs. Talbins testimonies were far from
perfect, as the petitioners pointed out. The respondent mistakenly
characterized Col. Kasim as a military officer who told her that her husband
is being abducted because he is under custodial investigation because he is
allegedly parang liason ng J.I. The petitioners also noted that Mrs. Talbins
testimony imputing certain statements to Sr. Supt. Kasim that Engr. Tagitis
is with the military, but he is not certain whether it is the PNP or AFP is not
worthy of belief, since Sr. Supt. Kasim is a high ranking police officer who
would certainly know that the PNP is not part of the military.
Upon deeper consideration of these inconsistencies, however, what appears
clear to us is that the petitioners never really steadfastly disputed or presented
evidence to refute the credibility of the respondent and her witness, Mrs.
Talbin. The inconsistencies the petitioners point out relate, more than
anything else, to details that should not affect the credibility of the respondent
and Mrs. Talbin; the inconsistencies are not on material points.[168] We note,
for example, that these witnesses are lay people in so far as military and police
matters are concerned, and confusion between the police and the military is
not unusual. As a rule, minor inconsistencies such as these indicate
truthfulness rather than prevarication[169]and only tend to strengthen their
probative value, in contrast to testimonies from various witnesses dovetailing
on every detail; the latter cannot but generate suspicion that the material
66
circumstances they testified to were integral parts of a well thought of and
prefabricated story.[170]
Based on these considerations and the unique evidentiary situation in
enforced disappearance cases, we hold it duly established that Col. Kasim
informed the respondent and her friends, based on the informants letter, that
Tagitis, reputedly a liaison for the JI and who had been under surveillance
since January 2007, was in good hands and under custodial investigation for
complicity with the JI after he was seen talking to one Omar Patik and a
certain Santos of Bulacan, a Balik Islam charged with terrorism. The
respondents and Mrs. Talbins testimonies cannot simply be defeated by Col.
Kasims plain denial and his claim that he had destroyed his informants letter,
the critical piece of evidence that supports or negates the parties conflicting
claims. Col. Kasims admitted destruction of this letter effectively, a
suppression of this evidence raises the presumption that the letter, if
produced, would be proof of what the respondent claimed.[171] For brevity,
we shall call the evidence of what Col. Kasim reported to the respondent to
be the Kasim evidence.
Given this evidence, our next step is to decide whether we can accept this
evidence, in lieu of direct evidence, as proof that the disappearance of Tagitis
was due to action with government participation, knowledge or consent and
that he was held for custodial investigation. We note in this regard that Col.
Kasim was never quoted to have said that the custodial investigation was by
the CIDG Zamboanga. The Kasim evidence only implies government
intervention through the use of the term custodial investigation, and does not
at all point to CIDG Zamboanga as Tagitis custodian.
Strictly speaking, we are faced here with a classic case of hearsay evidence
i.e., evidence whose probative value is not based on the personal knowledge
of the witnesses (the respondent, Mrs. Talbin and Col. Kasim himself) but on
the knowledge of some other person not on the witness stand (the
informant).[172]
To say that this piece of evidence is incompetent and inadmissible evidence
of what it substantively states is to acknowledge as the petitioners effectively
suggest that in the absence of any direct evidence, we should simply dismiss
the petition. To our mind, an immediate dismissal for this reason is no
different from a statement that the Amparo Rule despite its terms is
ineffective, as it cannot allow for the special evidentiary difficulties that are
unavoidably present in Amparo situations, particularly in extrajudicial
killings and enforced disappearances. The Amparo Rule was not promulgated
with this intent or with the intent to make it a token gesture of concern for
constitutional rights. It was promulgated to provide effective and timely
remedies, using and profiting from local and international experiences in
extrajudicial killings and enforced disappearances, as the situation may
require. Consequently, we have no choice but to meet the evidentiary
difficulties inherent in enforced disappearances with the flexibility that these
difficulties demand.
To give full meaning to our Constitution and the rights it protects, we hold
that, as in Velasquez, we should at least take a close look at the available
evidence to determine the correct import of every piece of evidence even of
those usually considered inadmissible under the general rules of evidence
taking into account the surrounding circumstances and the test of reason that
we can use as basic minimum admissibility requirement. In the present case,
we should at least determine whether the Kasim evidence before us is relevant
and meaningful to the disappearance of Tagistis and reasonably consistent
with other evidence in the case.
The evidence about Tagitis personal circumstances surrounded him with an
air of mystery. He was reputedly a consultant of the World Bank and a Senior
Honorary Counselor for the IDB who attended a seminar in Zamboanga and
thereafter proceded to Jolo for an overnight stay, indicated by his request to
Kunnong for the purchase of a return ticket to Zamboanga the day after he
arrived in Jolo. Nothing in the records indicates the purpose of his overnight
sojourn in Jolo. A colleague in the IDB, Prof. Matli, early on informed the
Jolo police that Tagitis may have taken funds given to him in trust for IDB
67
scholars. Prof Matli later on stated that he never accused Tagitis of taking
away money held in trust, although he confirmed that the IDB was seeking
assistance in locating funds of IDB scholars deposited in Tagitis personal
account. Other than these pieces of evidence, no other information exists in
the records relating to the personal circumstances of Tagitis.
The actual disappearance of Tagitis is as murky as his personal
circumstances. While the Amparo petition recited that he was taken away by
burly men believed to be police intelligence operatives, no evidence
whatsoever was introduced to support this allegation. Thus, the available
direct evidence is that Tagitis was last seen at 12.30 p.m. of October 30, 2007
the day he arrived in Jolo and was never seen again.
The Kasim evidence assumes critical materiality given the dearth of direct
evidence on the above aspects of the case, as it supplies the gaps that were
never looked into and clarified by police investigation. It is the evidence, too,
that colors a simple missing person report into an enforced disappearance
case, as it injects the element of participation by agents of the State and thus
brings into question how the State reacted to the disappearance.
Denials on the part of the police authorities, and frustration on the part of the
respondent, characterize the attempts to locate Tagitis. Initially in Jolo, the
police informed Kunnong that Tagitis could have been taken by the Abu
Sayyaf or other groups fighting the government. No evidence was ever
offered on whether there was active Jolo police investigation and how and
why the Jolo police arrived at this conclusion. The respondents own inquiry
in Jolo yielded the answer that he was not missing but was with another
woman somewhere. Again, no evidence exists that this explanation was
arrived at based on an investigation. As already related above, the inquiry
with Col. Ancanan in Zamboanga yielded ambivalent results not useful for
evidentiary purposes. Thus, it was only the inquiry from Col. Kasim that
yielded positive results. Col. Kasims story, however, confirmed only the fact
of his custodial investigation (and, impliedly, his arrest or abduction), without
identifying his abductor/s or the party holding him in custody. The more
significant part of Col. Kasims story is that the abduction came after Tagitis
was seen talking with Omar Patik and a certain Santos of Bulacan, a Balik
Islam charged with terrorism. Mrs. Talbin mentioned, too, that Tagitis was
being held at Talipapao, Sulu. None of the police agencies participating in
the investigation ever pursued these leads. Notably, TASK FORCE TAGITIS
to which this information was relayed did not appear to have lifted a finger
to pursue these aspects of the case.
More denials were manifested in the Returns on the writ to the CA made by
the petitioners. Then PNP Chief Gen. Avelino I. Razon merely reported the
directives he sent to the ARMM Regional Director and the Regional Chief of
the CIDG on Tagitis, and these reports merely reiterated the open-ended
initial report of the disappearance. The CIDG directed a search in all of its
divisions with negative results. These, to the PNP Chief, constituted the
exhaustion of all possible efforts. PNP-CIDG Chief General Edgardo M.
Doromal, for his part, also reported negative results after searching all
divisions and departments [of the CIDG] for a person named Engr. Morced
N. Tagitis . . . and after a diligent and thorough research, records show that
no such person is being detained in the CIDG or any of its department or
divisions. PNP-PACER Chief PS Supt. Leonardo A. Espina and PNP PRO
ARMM Regional Director PC Superintendent Joel R. Goltiao did no better
in their affidavits-returns, as they essentially reported the results of their
directives to their units to search for Tagitis.
The extent to which the police authorities acted was fully tested when the CA
constituted TASK FORCE TAGITIS, with specific directives on what to do.
The negative results reflected in the Returns on the writ were again replicated
during the three hearings the CA scheduled. Aside from the previously
mentioned retraction that Prof. Matli made to correct his accusation that
Tagitis took money held in trust for students, PS Supt. Ajirim reiterated in his
testimony that the CIDG consistently denied any knowledge or complicity in
any abduction and said that there was no basis to conclude that the CIDG or
any police unit had anything to do with the disappearance of Tagitis; he
likewise considered it premature to conclude that Tagitis simply ran away
with the money in his custody. As already noted above, the TASK FORCE
notably did not pursue any investigation about the personal circumstances of
68
Tagitis, his background in relation to the IDB and the background and
activities of this Bank itself, and the reported sighting of Tagistis with
terrorists and his alleged custody in Talipapao, Sulu. No attempt appears to
have ever been made to look into the alleged IDB funds that Tagitis held in
trust, or to tap any of the assets who are indispensable in investigations of this
nature. These omissions and negative results were aggravated by the CA
findings that it was only as late as January 28, 2008 or three months after the
disappearance that the police authorities requested for clear pictures of
Tagitis. Col. Kasim could not attend the trial because his subpoena was not
served, despite the fact that he was designated as Ajirims replacement in the
latters last post. Thus, Col. Kasim was not then questioned. No investigation
even an internal one appeared to have been made to inquire into the identity
of Col. Kasims asset and what he indeed wrote.
We glean from all these pieces of evidence and developments a consistency
in the governments denial of any complicity in the disappearance of Tagitis,
disrupted only by the report made by Col. Kasim to the respondent at Camp
Katitipan. Even Col. Kasim, however, eventually denied that he ever made
the disclosure that Tagitis was under custodial investigation for complicity in
terrorism. Another distinctive trait that runs through these developments is
the governments dismissive approach to the disappearance, starting from the
initial response by the Jolo police to Kunnongs initial reports of the
disappearance, to the responses made to the respondent when she herself
reported and inquired about her husbands disappearance, and even at TASK
FORCE TAGITIS itself.
As the CA found through TASK FORCE TAGITIS, the investigation was at
best haphazard since the authorities were looking for a man whose picture
they initially did not even secure. The returns and reports made to the CA
fared no better, as the CIDG efforts themselves were confined to searching
for custodial records of Tagitis in their various departments and divisions. To
point out the obvious, if the abduction of Tagitis was a black operation
because it was unrecorded or officially unauthorized, no record of custody
would ever appear in the CIDG records; Tagitis, too, would not be detained
in the usual police or CIDG detention places. In sum, none of the reports on
record contains any meaningful results or details on the depth and extent of
the investigation made. To be sure, reports of top police officials indicating
the personnel and units they directed to investigate can never constitute
exhaustive and meaningful investigation, or equal detailed investigative
reports of the activities undertaken to search for Tagitis. Indisputably, the
police authorities from the very beginning failed to come up to the
extraordinary diligence that the Amparo Rule requires.
CONCLUSIONS AND THE AMPARO REMEDY
Based on these considerations, we conclude that Col. Kasims disclosure,
made in an unguarded moment, unequivocally point to some government
complicity in the disappearance. The consistent but unfounded denials and
the haphazard investigations cannot but point to this conclusion. For why
would the government and its officials engage in their chorus of concealment
if the intent had not been to deny what they already knew of the
disappearance? Would not an in-depth and thorough investigation that at least
credibly determined the fate of Tagitis be a feather in the governments cap
under the circumstances of the disappearance? From this perspective, the
evidence and developments, particularly the Kasim evidence, already
establish a concrete case of enforced disappearance that the Amparo Rule
covers. From the prism of the UN Declaration, heretofore cited and
quoted,[173] the evidence at hand and the developments in this case confirm
the fact of the enforced disappearance and government complicity, under a
background of consistent and unfounded government denials and haphazard
handling. The disappearance as well effectively placed Tagitis outside the
protection of the law a situation that will subsist unless this Court acts.
This kind of fact situation and the conclusion reached are not without
precedent in international enforced disappearance rulings. While the facts are
not exactly the same, the facts of this case run very close to those of Timurtas
v. Turkey,[174] a case decided by ECHR. The European tribunal in that case
acted on the basis of the photocopy of a post-operation report in finding that
Abdulvahap Timurtas (Abdulvahap) was abducted and later detained by
agents (gendarmes) of the government of Turkey. The victim's father in this
case brought a claim against Turkey for numerous violations of the European
Convention, including the right to life (Article 2) and the rights to liberty and
security of a person (Article 5). The applicant contended that on August 14,
1993, gendarmes apprehended his son, Abdulvahap for being a leader of the
Kurdish Workers Party (PKK) in the Silopi region. The petition was filed in
southeast Turkey nearly six and one half years after the apprehension.
According to the father, gendarmes first detained Abdulvahap and then
transferred him to another detainment facility. Although there was no
eyewitness evidence of the apprehension or subsequent detainment, the
applicant presented evidence corroborating his version of events, including a
69
photocopy of a post-operation report signed by the commander of gendarme
operations in Silopi, Turkey. The report included a description of
Abdulvahap's arrest and the result of a subsequent interrogation during
detention where he was accused of being a leader of the PKK in the Silopi
region. On this basis, Turkey was held responsible for Abdulvahaps enforced
disappearance.
Following the lead of this Turkish experience - adjusted to the Philippine
legal setting and the Amparo remedy this Court has established, as applied to
the unique facts and developments of this case we believe and so hold that
the government in general, through the PNP and the PNP-CIDG, and in
particular, the Chiefs of these organizations together with Col. Kasim, should
be held fully accountable for the enforced disappearance of Tagitis.
The PNP and CIDG are accountable because Section 24 of Republic Act No.
6975, otherwise known as the PNP Law,[175] specifies the PNP as the
governmental office with the mandate to investigate and prevent crimes,
effect the arrest of criminal offenders, bring offenders to justice and assist in
their prosecution. The PNP-CIDG, as Col. Jose Volpane Pante (then Chief of
CIDG Region 9) testified, is the investigative arm of the PNP and is mandated
to investigate and prosecute all cases involving violations of the Revised
Penal Code, particularly those considered as heinous crimes.[176] Under the
PNP organizational structure, the PNP-CIDG is tasked to investigate all
major crimes involving violations of the Revised Penal Code and operates
against organized crime groups, unless the President assigns the case
exclusively to the National Bureau of Investigation (NBI).[177] No
indication exists in this case showing that the President ever directly
intervened by assigning the investigation of Tagitis disappearance
exclusively to the NBI.
Given their mandates, the PNP and PNP-CIDG officials and members were
the ones who were remiss in their duties when the government completely
failed to exercise the extral'>To fully enforce the Amparo remedy, we refer
this case back to the CA for appropriate proceedings directed at the
monitoring of the PNP and the PNP-CIDG investigations and actions, and the
validation of their results through hearings the CA may deem appropriate to
conduct. For purposes of these investigations, the PNP/PNP-CIDG shall
initially present to the CA a plan of action for further investigation,
periodically reporting the detailed results of its investigation to the CA for its
consideration and action. On behalf of this Court, the CA shall pass upon: the
need for the PNP and the PNP-CIDG to make disclosures of matters known
to them as indicated in this Decision and as further CA hearings may indicate;
the petitioners submissions; the sufficiency of their investigative efforts; and
submit to this Court a quarterly report containing its actions and
recommendations, copy furnished the petitioners and the respondent, with the
first report due at the end of the first quarter counted from the finality of this
Decision. The PNP and the PNP-CIDG shall have one (1) full year to
undertake their investigation. The CA shall submit its full report for the
consideration of this Court at the end of the 4th quarter counted from the
finality of this Decision.
WHEREFORE, premises considered, we DENY the petitioners petition for
review on certiorari for lack of merit, and AFFIRM the decision of the Court
of Appeals dated March 7, 2008 under the following terms:
a. Recognition that the disappearance of Engineer Morced N. Tagitis
is an enforced disappearance covered by the Rule on the Writ of Amparo;
b. Without any specific pronouncement on exact authorship and
responsibility, declaring the government (through the PNP and the PNP-
CIDG) and Colonel Julasirim Ahadin Kasim accountable for the enforced
disappearance of Engineer Morced N. Tagitis;
c. Confirmation of the validity of the Writ of Amparo the Court of
Appeals issued;
d. Holding the PNP, through the PNP Chief, and the PNP-CIDG,
through its Chief, directly responsible for the disclosure of material facts
known to the government and to their offices regarding the disappearance of
Engineer Morced N. Tagitis, and for the conduct of proper investigations
using extraordinary diligence, with the obligation to show investigation
results acceptable to this Court;
e. Ordering Colonel Julasirim Ahadin Kasim impleaded in this case
and holding him accountable with the obligation to disclose information
70
known to him and to his assets in relation with the enforced disappearance of
Engineer Morced N. Tagitis;

f. Referring this case back to the Court of Appeals for appropriate

proceedings directed at the monitoring of the PNP and PNP-CIDG
investigations, actions and the validation of their results; the PNP and the
PNP-CIDG shall initially present to the Court of Appeals a plan of action for
further investigation, periodically reporting their results to the Court of
Appeals for consideration and action;

g. Requiring the Court of Appeals to submit to this Court a quarterly

report with its recommendations, copy furnished the incumbent PNP and
PNP-CIDG Chiefs as petitioners and the respondent, with the first report due
at the end of the first quarter counted from the finality of this Decision;

h. The PNP and the PNP-CIDG shall have one (1) full year to
undertake their investigations; the Court of Appeals shall submit its full report
for the consideration of this Court at the end of the 4th quarter counted from
the finality of this Decision;

These directives and those of the Court of Appeals made pursuant to this
Decision shall be given to, and shall be directly enforceable against, whoever
may be the incumbent Chiefs of the Philippine National Police and its
Criminal Investigation and Detection Group, under pain of contempt from
this Court when the initiatives and efforts at disclosure and investigation
constitute less than the extraordinary diligence that the Rule on the Writ of
Amparo and the circumstances of this case demand. Given the unique nature
of Amparo cases and their varying attendant circumstances, these directives
particularly, the referral back to and monitoring by the CA are specific to this
case and are not standard remedies that can be applied to every Amparo
situation.

The dismissal of the Amparo petition with respect to General Alexander

Yano, Commanding General, Philippine Army, and General Ruben Rafael,
Chief, Anti-Terrorism Task Force Comet, Zamboanga City, is hereby
AFFIRMED.

71
Republic of the Philippines
x-----------------------------------------x
Supreme Court

Manila
EDITA T. BURGOS,
EN BANC
Petitioner,

- versus -
CHIEF OF STAFF OF THE ARMED FORCES OF THE PHILIPPINES;
EDITA T. BURGOS, GEN. HERMOGENES ESPERON, JR.; Commanding General of the
Philippine Army, LT. GEN. ALEXANDER YANO; and Chief of the
Petitioner, Philippine National Police, DIRECTOR GENERAL AVELINO RAZON,
JR.,

- versus - Respondents.

PRESIDENT GLORIA MACAPAGAL-ARROYO, GEN. HERMOGENES

ESPERON, JR., LT. GEN. ROMEO P. TOLENTINO, MAJ. GEN.
JUANITO GOMEZ, MAJ. GEN. DELFIN BANGIT, LT. COL. NOEL G.R. No. 183711
CLEMENT, LT. COL. MELQUIADES FELICIANO, and DIRECTOR
GENERAL OSCAR CALDERON, On July 17, 2008, the Court of Appeals (CA) issued a decision[1] in the
consolidated petitions for the Issuance of the Writ of Habeas Corpus,[2] for
Respondents. Contempt[3] and for the Issuance of a Writ of Amparo[4] filed by petitioner
Edita T. Burgos on behalf of her son Jonas Joseph T. Burgos, who was
x-----------------------------------------x forcibly taken and abducted by a group of four men and by a woman from the
extension portion of Hapag Kainan Restaurant, located at the ground floor of
EDITA T. BURGOS, Ever Gotesco Mall, Commonwealth Avenue, Quezon City, on April 28, 2007.
This CA decision[5] dismissed the petitioners petition for the Issuance of the
Petitioner, Writ of Habeas Corpus; denied the petitioners motion to declare the
respondents in contempt; and partially granted the privilege of the Writ of
- versus - Amparo in favor of the petitioner.

PRESIDENT GLORIA MACAPAGAL-ARROYO, GEN. HERMOGENES The Antecedents

ESPERON, JR., LT. GEN. ROMEO P. TOLENTINO, MAJ. GEN.
JUANITO GOMEZ, LT. COL. MELQUIADES FELICIANO, and LT. COL. The established facts, as found by the CA, are summarized below:[6]
NOEL CLEMENT,

Respondents.

72
The established facts show that at around one oclock in the afternoon of April
28, 2007, Jonas Joseph T. Burgos a farmer advocate and a member of
Kilusang Magbubukid sa Bulacan (a chapter of the militant peasant
organization Kilusang Magbubukid ng Pilipinas) was forcibly taken and
abducted by a group of four (4) men and a woman from the extension portion
of Hapag Kainan Restaurant, located at the ground floor of Ever Gotesco
Mall, Commonwealth Avenue, Quezon City. On his way out of the restaurant,
Jonas told the manager, Maam aktibista lang po ako! When a security guard
tried to intervene, after he noticed that the group was forcibly dragging a male
person out of the restaurant, he was told, Pare, pulis! The guard then backed
off but was able to see that Jonas was forced into the rear portion of a plain
maroon colored Toyota Revo with plate number TAB 194. The guard then
noted the plate number and reported the incident to his superiors as well as to
the police on duty in the said mall.
On April 30, 2007, the petitioner held a press conference and announced that
her son Jonas was missing. That same day, the petitioner sought confirmation
from the guard if the person abducted was her son Jonas. Upon subsequent
police investigation and LTO verification, it was discovered that plate
number TAB 194 was registered to a 1991 Isuzu XLT vehicle owned by a
certain Mauro B. Mudlong. It was also later confirmed by employees of the
Department of Environment and Natural Resources (DENR) that Mudlong
was arrested and his 1991 Isuzu XLT vehicle was seized on June 24, 2006 by
Cpl. Castro Bugalan and Pfc. Jose Villea of the 56th Infantry Battalion (IB)
of the Philippine Army for transporting timber without permit. As agreed
upon by the DENR employees and officers of the 56th IB, the vehicle with
the license plate no. TAB 194 was impounded in the 56th IB headquarters
whose commanding officer at that time was Lt. Col. Noel Clement.
The established facts also show that Lt. Col. Clement and the soldiers of the
56th IB went on retraining at the Headquarters of the First Scout Rangers
Regiment (Camp Tecson) in Brgy. Tartaro, San Miguel, Bulacan starting
November 28, 2006. A left-behind force or a squad remained in the camp of
the 56th IB to secure the premises and equipment as it awaited the arrival of
the 69th IB, headed by Lt. Col. Edison Caga, which took over the 56th IBs
area of responsibility for the duration of the retraining. The 69th IB arrived
at Camp Tecson on December 1, 2006, and remained there until March 7,
2007, when the 56th IB returned. There was no formal turnover or inventory
of equipment and vehicles when the 69th IB arrived on December 1, 2006.
Meanwhile, on January 17, 2007, Lt. Col. Melquiades Feliciano took
command of the 56th IB from Lt. Col. Clement. The actual turnover of
command took place at Camp Tecson where the 56th IB was retraining. At
the time Jonas was abducted on April 28, 2007, Lt. Col. Feliciano was the
56th IBs commanding officer. Earlier, on March 23, 2007, 2nd Lt. Dick A.
Abletes, a member of the 56th IB, was caught on video talking to two persons,
a male and a female, at McDonalds Bocaue. In the video, he was seen handing
a document to the two persons. On March 26, 2007, 2nd Lt. Abletes was
arrested and charges were soon filed against him with the Judge Advocate
General for violations of Articles 82, 96 and 97 of the Articles of War.
Prior to Jonas abduction, Mudlongs 1991 Isuzu XLT vehicle remained
impounded at the 56th IBs Headquarters. In May 2007, right after Jonas
abduction was made public, it was discovered that plate number TAB 194 of
this 1991 Isuzu XLT vehicle was missing, and the engine and other spare
parts were cannibalized.
On direct examination, the petitioner testified before the CA that the police
was able to generate cartographic sketches of two (one male and one female)
of the abductors of Jonas based on its interview of eyewitnesses.[7] The
petitioner narrated further that these cartographic sketches were identified by
State Prosecutor Emmanuel Velasco of the Department of Justice (DOJ); that
when she went to see State Prosecutor Velasco personally, he gave her five
names who were allegedly involved in the abduction of Jonas (namely T/Sgt.
Jason Roxas, Cpl. Joana Francisco, M/Sgt. Aron Arroyo, and 1st Lt. Jaime
Mendaros);[8] and that the information from State Prosecutor Velascos
sources corroborated the same information she received earlier from her own
sources.[9] The petitioner also testified that nothing came out of the
information given by State Prosecutor Velasco because he was pulled out
from the investigation by the DOJ Secretary,[10] and that the police,
particularly P/Supt. Jonnel C. Estomo, failed to investigate and act upon these
leads.[11]
On August 30, 2007, P/Supt. Estomo (the lead investigator in the
investigation conducted by the Philippine National Police-Criminal
Investigation and Detection Group [PNP-CIDG]) testified before the CA that
he did not investigate or look into the identities of the cartographic sketches
73
of the two abductors provided by the PNP Criminal Investigation Unit,
Quezon City.[12] P/Supt. Estomo testified further that he showed the photos
of Cpl. Bugalan and Pfc.Villea to witness Larry Marquez for identification
but failed to show any photos of the other officers and men of the 56th IB.[13]
Finally, P/Supt. Estomo also testified that he did not propound any
clarificatory questions regarding the disappearance of Jonas Burgos to Lt.
Cols. Feliciano, Clement, and Caga of the 56th IB who merely voluntarily
submitted their statements.[14]
On August 29, 2007, the PNP-CIDG presented Emerito Lipio @ KA
TIBO/KA CRIS, Marlon D. Manuel @ KA CARLO, and Melissa
Concepcion Reyes @ KA LISA/RAMIL to support the theory that elements
of the New Peoples Army (NPA) perpetrated the abduction of Jonas.[15] In
his Sworn Statement, Lipio admitted that he is a member of the Communist
Party of the Philippines (CPP)/NPA and that the NPA was behind the
abduction of Jonas. Lipio revealed that Jonas is known as @KA RAMON in
the communist movement. He claimed further that he and @KA RAMON
belonged to the Bulacan Party Committee, assigned to the White Area
Committee doing intelligence work for the movement under the leadership of
Delfin de Guzman @ KA BASTE, and that @KA RAMON was their political
instructor and head of the intelligence unit in the province.[16]
Sometime early April of 2007, Lipio was present in a meeting between @KA
BASTE and @KA RAMON. At this meeting, the two had a heated argument.
For this reason, @KA BASTE instructed Lipio to place @KA RAMON
under surveillance as they suspected him of pilfering funds from the party
and of acting as a military agent.[17]
Lipio further averred that upon instruction of @KA BASTE, he and a certain
@KA CARLO proceeded to Ever Gotesco Mall on April 28, 2007 to monitor
the reported meeting between @KA RAMON and other party members. At
one oclock in the afternoon, Lipio and @KA CARLO (who stationed
themselves near the entrance/exit of the mall) saw a man, who they
recognized as @KA RAMON, forcibly taken by four men, brought outside
of the mall, and shoved inside a Toyota Revo. Lipio further alleged that he
recognized two of the abductors as @KA DANTE and @KA ENSO who he
claims to be members of the CPP/NPAs guerilla unit (RYG).[18]
In his Sworn Statement, Manuel affirmed and substantiated Lipios statement
that @KA RAMON and Jonas are one and the same person and that he is a
member of the communist movement in Bulacan. Manuel also corroborated
Lipios statement regarding the circumstances of the abduction of @KA
RAMON at Ever Gotesco Mall on April 28, 2007; he confirmed that he and
@ KA TIBO witnessed the abduction.[19]
Reyes, a rebel-returnee, provided in her Sworn Statement additional material
information regarding the disappearance of Jonas. Reyes alleged that she was
supposed to meet with @KA RAMON and another comrade in the movement
(whom she identified as @KA JO) to discuss the possibility of arranging a
meeting with a contact in the military. She averred that she met @KA JO at
about 11:30 a.m. at the Baliaug Transit Terminal, Cubao enroute to Ever
Gotesco mall where they would meet with a certain @KA RAMON. Reyes
further narrated that they arrived about noon at Ever Gotesco mall; @KA JO
left her at McDonalds and told her to wait while he went to look for @KA
RAMON. After an hour, @KA JO arrived without @KA RAMON and told
Reyes to go home and just keep in touch through text messaging. Reyes
alleged further that she has not heard from @KA JO since.[20]
The CA Findings
In its July 17, 2008 decision, the CA found that the evidence the petitioner
presented failed to establish her claimed direct connection between the
abductors of Jonas and the military. The CA noted that the evidence does not
show how license plate number TAB 194 (supposedly attached to the 1991
Isuzu XLT vehicle impounded at the 56th IB Headquarters) came to be
attached to the getaway Toyota Revo on April 28, 2007, and whether the two
license plates are one and the same at all. The CA emphasized that the
evidence does not indicate whether the abductors are members of the military
or the police or are civilians; if they are civilians, whether they acted on their
own or were following orders, and in the latter case, from whom.
The CA also found that the investigations by the Armed Forces of the
Philippines (AFP) and the PNP leave much to be desired as they did not fully
exert their effort to unearth the truth and to bring the real culprits before the
bar of justice.[21] The CA held that since the petitioner has established that
the vehicle used in the abduction was linked to a vehicle (with license plate
number TAB 194) impounded at the headquarters of the 56th IB, it became
the burden of the AFP to exercise extraordinary diligence to determine the
74
why and the wherefore of the loss of the license plate in their custody and its
appearance in a vehicle (a maroon Toyota Revo) used in Jonas abduction.
The CA also ruled that the AFP has the burden of connect[ing] certain loose
ends[22] regarding the identity of @Ka Ramon (as referred to by the
petitioners witnesses) and the allegation that @Ka Ramon is indeed Jonas in
the Order of Battle.
As for the PNP-CIDG, the CA branded its investigation as rather shallow and
conducted haphazardly. The CA took note that P/Supt. Estomos investigation
merely delved into the administrative liability of Lt. Col. Clement, Lt. Col.
Feliciano and Lt. Col. Caga of the 56th IB, and failed to consider them as
suspects in the abduction of Jonas. The CA emphasized that the PNP-CIDGs
investigation should focus on the criminal aspect of the present case pursuant
to Section 24 of Republic Act No. 6975, which mandates the PNP to
investigate and prevent crimes, effect the arrest of criminal offenders, bring
offenders to justice and assist in their prosecution.
The CA also found P/Supt. Estomos recommendation that appropriate
charges be filed against Mauro Mudlong (registered owner of the impounded
1991 Isuzu XLT vehicle with plate license no. TAB 194) to be without any
factual basis since no evidence was presented to connect the latter to the loss
of the license plate as well as to the abduction of Jonas. The CA stressed that
it could not find any valid reason why Mudlong should be treated any
differently from the three 56th IB colonels whom the PNP-CIDG did not
consider as suspects despite the established fact that license plate no. TAB
194 was lost while in their custody.
On the PNP-CIDGs new information from Lipio who claimed to have seen
Jonas being abducted by a certain @KA DANTE and @KA ENSO of the
CPP/NPA guerilla unit RYG, and on Marlon Manuel, who corroborated
Lipios statements, the CA held that steps should be taken by the PNP-CIDG
to verify the veracity of these statements. Notwithstanding the new
information, the CA noted that the PNP-CIDG should not discount the
possible involvement of members of the AFP. Thus, the CA concluded that
the PNP must exert extraordinary diligence in following all possible leads to
resolve the crime committed against Jonas. Finally, the CA noted - based on
the Certification issued by the Assistant Chief State Prosecutor, DOJ dated
March 5, 2008 - that no case has been referred by the PNP to the DOJ for
preliminary investigation in relation to the abduction and disappearance of
Jonas. This is contrary to PNPs manifest representation that it had already
forwarded all pertinent and relevant documents to the DOJ for the filing of
appropriate charges against the suspects (i.e., @KA DANTE and @KA
ENSO).
The CA also held that the petitions for habeas corpus and contempt as against
President Gloria Macapagal-Arroyo must be dropped since she enjoys the
privilege of immunity from suit. The CA ruled that the Presidents immunity
from suit is a settled doctrine citing David v. Arroyo.[23]
Our Ruling
Considering the findings of the CA and our review of the records of the
present case, we conclude that the PNP and the AFP have so far failed to
conduct an exhaustive and meaningful investigation into the disappearance
of Jonas Burgos, and to exercise the extraordinary diligence (in the
performance of their duties) that the Rule on the Writ of Amparo requires.
Because of these investigative shortcomings, we cannot rule on the case until
a more meaningful investigation, using extraordinary diligence, is
undertaken.
From the records, we note that there are very significant lapses in the handling
of the investigation - among them the PNP-CIDGs failure to identify the
cartographic sketches of two (one male and one female) of the five abductors
of Jonas based on their interview of eyewitnesses to the abduction. This lapse
is based on the information provided to the petitioner by no less than State
Prosecutor Emmanuel Velasco of the DOJ who identified the persons who
were possibly involved in the abduction, namely: T/Sgt. Jason Roxas
(Philippine Army), Cpl. Maria Joana Francisco (Philippine Air Force),
M/Sgt. Aron Arroyo (Philippine Air Force), and an alias T.L., all reportedly
assigned with Military Intelligence Group 15 of Intelligence Service of the
AFP.[24] No search and certification were ever made on whether these
persons were AFP personnel or in other branches of the service, such as the
Philippine Air Force. As testified to by the petitioner, no significant follow
through was also made by the PNP-CIDG in ascertaining the identities of the
cartographic sketches of two of the abductors despite the evidentiary leads
provided by State Prosecutor Velasco of the DOJ. Notably, the PNP-CIDG,
as the lead investigating agency in the present case, did not appear to have
lifted a finger to pursue these aspects of the case.
75
We note, too, that no independent investigation appeared to have been made
by the PNP-CIDG to inquire into the veracity of Lipios and Manuels claims
that Jonas was abducted by a certain @KA DANTE and a certain @KA
ENSO of the CPP/NPA guerilla unit RYG. The records do not indicate
whether the PNP-CIDG conducted a follow-up investigation to determine the
identities and whereabouts of @KA Dante and @KA ENSO. These
omissions were aggravated by the CA finding that the PNP has yet to refer
any case for preliminary investigation to the DOJ despite its representation
before the CA that it had forwarded all pertinent and relevant documents to
the DOJ for the filing of appropriate charges against @KA DANTE and
@KA ENSO.
Based on these considerations, we conclude that further investigation and
monitoring should be undertaken. While significant leads have been provided
to investigators, the investigations by the PNP-CIDG, the AFP Provost
Marshal, and even the Commission on Human Rights (CHR) have been less
than complete. The PNP-CIDGs investigation particularly leaves much to be
desired in terms of the extraordinary diligence that the Rule on the Writ of
Amparo requires. For this reason, we resolve to refer the present case to the
CHR as the Courts directly commissioned agency tasked with the
continuation of the investigation of the Burgos abduction and the gathering
of evidence, with the obligation to report its factual findings and
recommendations to this Court. We take into consideration in this regard that
the CHR is a specialized and independent agency created and empowered by
the Constitution to investigate all forms of human rights violations involving
civil and political rights and to provide appropriate legal measures for the
protection of human rights of all persons within the Philippines.[25]
Under this mandate, the CHR is tasked to conduct appropriate investigative
proceedings, including field investigations acting as the Courts directly
commissioned agency for purposes of the Rule on the Writ of Amparo with
the tasks of: (a) ascertaining the identities of the persons appearing in the
cartographic sketches of the two alleged abductors as well as their
whereabouts; (b) determining based on records, past and present, the
identities and locations of the persons identified by State Prosecutor Velasco
alleged to be involved in the abduction of Jonas, namely: T/Sgt. Jason Roxas
(Philippine Army); Cpl. Maria Joana Francisco (Philippine Air Force),
M/Sgt. Aron Arroyo (Philippine Air Force), and an alias T.L., all reportedly
assigned with Military Intelligence Group 15 of Intelligence Service of the
AFP; further proceedings and investigations, as may be necessary, should be
made to pursue the lead allegedly provided by State Prosecutor Velasco on
the identities of the possible abductors; (c) inquiring into the veracity of
Lipios and Manuels claims that Jonas was abducted by a certain @KA
DANTE and @KA ENSO of the CPP/NPA guerilla unit RYG; (d)
determining based on records, past and present, as well as further
investigation, the identities and whereabouts of @KA DANTE and @KA
ENSO; and (e) undertaking all measures, in the investigation of the Burgos
abduction that may be necessary to live up to the extraordinary measures we
require in addressing an enforced disappearance under the Rule on the Writ
of Amparo.
WHEREFORE, in the interest of justice and for the foregoing reasons, the
Court RESOLVES to:
(1) DIRECT the Commission on Human Rights to conduct appropriate
investigative proceedings, including field investigations acting as the Courts
directly commissioned agency for purposes of the Rule on the Writ of
Amparo - with the tasks of: (a) ascertaining the identities of the cartographic
sketches of two of the abductors as well as their whereabouts; (b) determining
based on records, past and present, the identities and locations of the persons
identified by State Prosecutor Velasco alleged to be involved in the abduction
of Jonas namely: T/Sgt. Jason Roxas (Philippine Army), Cpl. Maria Joana
Francisco (Philippine Air Force), M/Sgt. Aron Arroyo (Philippine Air Force),
and an alias T.L., all reportedly assigned with Military Intelligence Group 15
of Intelligence Service of the Armed Forces of the Philippines; further
proceedings and investigations, as may be necessary, should be made to
pursue the lead allegedly provided by State Prosecutor Velasco on the
identities of the possible abductors; (c) inquiring into the veracity of Lipios
and Manuels claims that Jonas was abducted by a certain @KA DANTE and
@KA ENSO of the CPP/NPA guerilla unit RYG; (d) determining based on
records, past and present, as well as further investigation, the identities and
whereabouts of @KA DANTE and @KA ENSO; and (e) undertaking all
measures, in the investigation of the Burgos abduction, that may be necessary
to live up to the extraordinary measures we require in addressing an enforced
disappearance under the Rule on the Writ of Amparo;
(2) REQUIRE the incumbent Chiefs of the Armed Forces of the Philippines
and the Philippine National Police to make available and to provide copies,
to the Commission on Human Rights, of all documents and records in their
76
possession and as the Commission on Human Rights may require, relevant to The dismissal of the petitions for Contempt and for the Issuance of a Writ of
the case of Jonas Joseph T. Burgos, subject to reasonable regulations Amparo with respect to President Gloria Macapagal-Arroyo is hereby
consistent with the Constitution and existing laws; AFFIRMED.

(3) DIRECT the PNP-CIDG and its incumbent Chief to submit to the
Commission on Human Rights the records and results of the investigation the
PNP-CIDG claimed to have forwarded to the Department of Justice, which
were not included in their previous submissions to the Commission on
Human Rights, including such records as the Commission on Human Rights
may require, pursuant to the authority granted under this Resolution;

(4) Further DIRECT the PNP-CIDG to provide direct investigative assistance

to the Commission on Human Rights as it may require, pursuant to the
authority granted under this Resolution;

(5) AUTHORIZE the Commission on Human Rights to conduct a

comprehensive and exhaustive investigation that extends to all aspects of the
case (not limited to the specific directives as outlined above), as the
extraordinary measures the case may require under the Rule on the Writ of
Amparo; and

(6) REQUIRE the Commission on Human Rights to submit to this Court a

Report with its recommendations, copy furnished the petitioner, the
incumbent Chiefs of the AFP, the PNP and the PNP-CIDG, and all the
respondents, within ninety (90) days from receipt of this Resolution.

In light of the retirement of Lt. General Alexander Yano and the reassignment
of the other respondents who have all been impleaded in their official
capacities, all subsequent resolutions and actions from this Court shall also
be served on, and be directly enforceable by, the incumbents of the impleaded
offices/units whose official action is necessary. The present respondents shall
continue to be personally impleaded for purposes of the responsibilities and
accountabilities they may have incurred during their incumbencies.

77
Navia v. Pardico, GR 184467 (2012)
For the protective writ of amparo to issue in enforced disappearance cases,
allegation and proof that the persons subject thereof are missing are not
enough. It must also be shown by the required quantum of proof that their
disappearance was carried out by, or with the authorization, support or
acquiescence of, [the government] or a political organization, followed by a
refusal to acknowledge [the same or] give information on the fate or
whereabouts of [said missing] persons.[3]
This petition for review on certiorari[4] filed in relation to Section 19 of A.M.
No. 07-9-12-SC[5] challenges the July 24, 2008 Decision[6] of the Regional
Trial Court (RTC), Branch 20, Malolos City which granted the Petition for
Writ of Amparo[7] filed by herein respondent against the petitioners.
Factual Antecedents
On March 31, 2008, at around 8:30 p.m., a vehicle of Asian Land Strategies
Corporation[8] (Asian Land) arrived at the house of Lolita M. Lapore (Lolita)
located at 7A Lot 9, Block 54, Grand Royale Subdivision, Barangay Lugam,
Malolos City. The arrival of the vehicle awakened Lolitas son, Enrique
Lapore (Bong), and Benhur Pardico (Ben), who were then both staying in her
house. When Lolita went out to investigate, she saw two uniformed guards
disembarking from the vehicle. One of them immediately asked Lolita where
they could find her son Bong. Before Lolita could answer, the guard saw
Bong and told him that he and Ben should go with them to the security office
of Asian Land because a complaint was lodged against them for theft of
electric wires and lamps in the subdivision.[9]
Shortly thereafter, Bong, Lolita and Ben were in the office of the security
department of Asian Land also located in Grand Royale Subdivision.[10] The
supervisor of the security guards, petitioner Edgardo Navia (Navia), also
arrived thereat.
As to what transpired next, the parties respective versions diverge.
Version of the Petitioners
Petitioners alleged that they invited Bong and Ben to their office because they
received a report from a certain Mrs. Emphasis, a resident of Grand Royale
Subdivision, that she saw Bong and Ben removing a lamp from a post in said
subdivision.[11] The reported unauthorized taking of the lamp was relayed
thru radio to petitioners Ruben Dio (Dio) and Andrew Buising (Buising), who
both work as security guards at the Asian Land security department.
Following their departments standard operating procedure, Dio and Buising
entered the report in their logbook and proceeded to the house of Mrs.
Emphasis. It was there where Dio and Buising were able to confirm who the
suspects were. They thus repaired to the house of Lolita where Bong and Ben
were staying to invite the two suspects to their office. Bong and Ben
voluntarily went with them.
At the security office, Dio and Buising interviewed Bong and Ben. The
suspects admitted that they took the lamp but clarified that they were only
transferring it to a post nearer to the house of Lolita.[12] Soon, Navia arrived
and Buising informed him that the complainant was not keen in participating
in the investigation. Since there was no complainant, Navia ordered the
release of Bong and Ben. Bong then signed a statement to the effect that the
guards released him without inflicting any harm or injury to him.[13] His
mother Lolita also signed the logbook below an entry which states that she
will never again harbor or entertain Ben in her house. Thereafter, Lolita and
Bong left the security office.
Ben was left behind as Navia was still talking to him about those who might
be involved in the reported loss of electric wires and lamps within the
subdivision. After a brief discussion though, Navia allowed Ben to leave. Ben
also affixed his signature on the logbook to affirm the statements entered by
the guards that he was released unharmed and without any injury.[14]
Upon Navias instructions, Dio and Buising went back to the house of Lolita
to make her sign the logbook as witness that they indeed released Ben from
their custody. Lolita asked Buising to read aloud that entry in the logbook
where she was being asked to sign, to which Buising obliged. Not contented,
Lolita put on her reading glasses and read the entry in the logbook herself
before affixing her signature therein. After which, the guards left.
78

Subsequently, petitioners received an invitation[15] from the Malolos City
Police Station requesting them to appear thereat on April 17, 2008 relative to
the complaint of Virginia Pardico (Virginia) about her missing husband Ben.
In compliance with the invitation, all three petitioners appeared at the
Malolos City Police Station. However, since Virginia was not present despite
having received the same invitation, the meeting was reset to April 22,
2008.[16]
On April 22, 2008, Virginia attended the investigation. Petitioners informed
her that they released Ben and that they have no information as to his present
whereabouts.[17] They assured Virginia though that they will cooperate and
help in the investigation of her missing husband.[18]
Version of the Respondent
According to respondent, Bong and Ben were not merely invited. They were
unlawfully arrested, shoved into the Asian Land vehicle and brought to the
security office for investigation. Upon seeing Ben at the security office, Navia
lividly grumbled Ikaw na naman?[19] and slapped him while he was still
seated. Ben begged for mercy, but his pleas were met with a flurry of punches
coming from Navia hitting him on different parts of his body.[20] Navia then
took hold of his gun, looked at Bong, and said, Wala kang nakita at wala kang
narinig, papatayin ko na si Ben.[21]
Bong admitted that he and Ben attempted to take the lamp. He explained that
the area where their house is located is very dark and his father had long been
asking the administrator of Grand Royale Subdivision to install a lamp to
illumine their area. But since nothing happened, he took it upon himself to
take a lamp from one of the posts in the subdivision and transfer it to a post
near their house. However, the lamp Bong got was no longer working. Thus,
he reinstalled it on the post from which he took it and no longer pursued his
plan. [22]
Later on, Lolita was instructed to sign an entry in the guards logbook where
she undertook not to allow Ben to stay in her house anymore.[23] Thereafter,
Navia again asked Lolita to sign the logbook. Upon Lolitas inquiry as to why
she had to sign again, Navia explained that they needed proof that they
released her son Bong unharmed but that Ben had to stay as the latters case
will be forwarded to the barangay. Since she has poor eyesight, Lolita
obligingly signed the logbook without reading it and then left with Bong.[24]
At that juncture, Ben grabbed Bong and pleaded not to be left alone.
However, since they were afraid of Navia, Lolita and Bong left the security
office at once leaving Ben behind.[25]
Moments after Lolita and Bong reached their house, Buising arrived and
asked Lolita to sign the logbook again. Lolita asked Buising why she had to
sign again when she already twice signed the logbook at the headquarters.
Buising assured her that what she was about to sign only pertains to Bongs
release. Since it was dark and she has poor eyesight, Lolita took Buisings
word and signed the logbook without, again, reading what was written in it.
[26]
The following morning, Virginia went to the Asian Land security office to
visit her husband Ben, but only to be told that petitioners had already released
him together with Bong the night before. She then looked for Ben, asked
around, and went to the barangay. Since she could not still find her husband,
Virginia reported the matter to the police.
In the course of the investigation on Bens disappearance, it dawned upon
Lolita that petitioners took advantage of her poor eyesight and naivete. They
made her sign the logbook as a witness that they already released Ben when
in truth and in fact she never witnessed his actual release. The last time she
saw Ben was when she left him in petitioners custody at the security
office.[27]
Exasperated with the mysterious disappearance of her husband, Virginia filed
a Petition for Writ of Amparo[28] before the RTC of Malolos City. Finding
the petition sufficient in form and substance, the amparo court issued an
Order[29] dated June 26, 2008 directing, among others, the issuance of a writ
of amparo and the production of the body of Ben before it on June 30, 2008.
Thus:
79
WHEREFORE, conformably with Section 6 of the Supreme Court
Resolution [in] A.M. No. 07-[9]-12-SC, also known as The Rule On The Writ
Of Amparo, let a writ of amparo be issued, as follows:
(1) ORDERING [petitioners] Edgardo Navia, Ruben Dio and Andrew
Buising of the Asian Land Security Agency to produce before the Court the
body of aggrieved party Benhur Pardico, on Monday, June 30, 2008, at 10:30
a.m.;
(2) ORDERING the holding of a summary hearing of the petition on
the aforementioned date and time, and DIRECTING the [petitioners] to
personally appear thereat;
(3) COMMANDING [petitioners] Edgardo Navia, Ruben Dio and
Andrew Buising to file, within a non-extendible period of seventy-two (72)
hours from service of the writ, a verified written return with supporting
affidavits which shall, among other things, contain the following:
a) The lawful defenses to show that the [petitioners] did not violate or threaten
with violation the right to life, liberty and security of the aggrieved party,
through any act or omission;
b) The steps or actions taken by the [petitioners] to determine the fate
or whereabouts of the aggrieved party and the person or persons responsible
for the threat, act or omission; and
c) All relevant information in the possession of the [petitioners]
pertaining to the threat, act or omission against the aggrieved party.
(4) GRANTING, motu proprio, a Temporary Protection Order
prohibiting the [petitioners], or any persons acting for and in their behalf,
under pain of contempt, from threatening, harassing or inflicting any harm to
[respondent], his immediate family and any [member] of his household.
The Branch Sheriff is directed to immediately serve personally on the
[petitioners], at their address indicated in the petition, copies of the writ as
well as this order, together with copies of the petition and its annexes.[30]
A Writ of Amparo[31] was accordingly issued and served on the petitioners
on June 27, 2008.[32] On June 30, 2008, petitioners filed their
Compliance[33] praying for the denial of the petition for lack of merit.
A summary hearing was thereafter conducted. Petitioners presented the
testimony of Buising, while Virginia submitted the sworn statements[34] of
Lolita and Enrique which the two affirmed on the witness stand.
Ruling of the Regional Trial Court
On July 24, 2008, the trial court issued the challenged Decision[35] granting
the petition. It disposed as follows:
WHEREFORE, the Court hereby grants the privilege of the writ of amparo,
and deems it proper and appropriate, as follows:
(a) To hereby direct the National Bureau of Investigation (NBI) to
immediately conduct a deep and thorough investigation of the [petitioners]
Edgardo Navia, Ruben Dio and Andrew Buising in connection with the
circumstances surrounding the disappearance of [Benhur] Pardico, utilizing
in the process, as part of the investigation, the documents forming part of the
records of this case;
(b) To hereby direct the NBI to extend to the family of [Benhur] Pardico
and the witnesses who testified in this case protection as it may deem
necessary to secure their safety and security; and
(c) To hereby direct the Office of the Provincial Prosecutor of Bulacan
to investigate the circumstances concerning the legality of the arrest of
[Benhur] Pardico by the [petitioners] in this case, utilizing in the process, as
part of said investigation, the pertinent documents and admissions forming
part of the record of this case, and take whatever course/s of action as may be
warranted.
80
Furnish immediately copies of this decision to the NBI, through the Office of
Director Nestor Mantaring, and to the Provincial Prosecutor of Bulacan.
SO ORDERED.[36]
Petitioners filed a Motion for Reconsideration[37] which was denied by the
trial court in an Order[38] dated August 29, 2008.
Hence, this petition raising the following issues for our consideration:
4.1. WHETHER X X X THE HONORABLE TRIAL COURT GRAVELY
ERRED IN RULING THAT RESPONDENT IS ENTITLED TO THE
PRIVILEGE OF THE WRIT OF AMPARO.
4.1.1. WHETHER X X X RESPONDENT WAS ABLE TO ESTABLISH
THAT PETITIONERS HAVE COMMITTED OR ARE COMMITTING
ACTS IN VIOLATION OF HER HUSBANDS RIGHT TO LIFE,
LIBERTY, OR SECURITY.
4.1.2. WHETHER X X X RESPONDENT SUFFICIENTLY
ESTABLISHED THE FACT OF THE DISAPPEARANCE OF BENHUR
PARDICO
4.1.3. WHETHER X X X RESPONDENT WAS ABLE TO ESTABLISH
THAT THE ALLEGED DISAPPEARANCE OF BENHUR PARDICO
WAS AT THE INSTANCE OF HEREIN PETITIONERS.[39]
Petitioners Arguments
Petitioners essentially assail the sufficiency of the amparo petition. They
contend that the writ of amparo is available only in cases where the factual
and legal bases of the violation or threatened violation of the aggrieved partys
right to life, liberty and security are clear. Petitioners assert that in the case at
bench, Virginia miserably failed to establish all these. First, the petition is
wanting on its face as it failed to state with some degree of specificity the
alleged unlawful act or omission of the petitioners constituting a violation of
or a threat to Bens right to life, liberty and security. And second, it cannot be
deduced from the evidence Virginia adduced that Ben is missing; or that
petitioners had a hand in his alleged disappearance. On the other hand, the
entries in the logbook which bear the signatures of Ben and Lolita are
eloquent proof that petitioners released Ben on March 31, 2008 at around
10:30 p.m. Petitioners thus posit that the trial court erred in issuing the writ
and in holding them responsible for Bens disappearance.
Our Ruling
Virginias Petition for Writ of Amparo is fatally defective and must perforce
be dismissed, but not for the reasons adverted to by the petitioners.
A.M. No. 07-9-12-SC or The Rule on the Writ of Amparo was promulgated
to arrest the rampant extralegal killings and enforced disappearances in the
country. Its purpose is to provide an expeditious and effective relief to any
person whose right to life, liberty and security is violated or threatened with
violation by an unlawful act or omission of a public official or employee, or
of a private individual or entity. [40]
Here, Bens right to life, liberty and security is firmly settled as the parties do
not dispute his identity as the same person summoned and questioned at
petitioners security office on the night of March 31, 2008. Such
uncontroverted fact ipso facto established Bens inherent and constitutionally
enshrined right to life, liberty and security. Article 6[41] of the International
Covenant on Civil and Political Rights[42] recognizes every human beings
inherent right to life, while Article 9[43] thereof ordains that everyone has
the right to liberty and security. The right to life must be protected by law
81
while the right to liberty and security cannot be impaired except on grounds
provided by and in accordance with law. This overarching command against
deprivation of life, liberty and security without due process of law is also
embodied in our fundamental law.[44]
The pivotal question now that confronts us is whether Bens disappearance as
alleged in Virginias petition and proved during the summary proceedings
conducted before the court a quo, falls within the ambit of A.M. No. 07-9-
12-SC and relevant laws.
It does not. Section 1 of A.M. No. 07-9-12-SC provides:
SECTION 1. Petition. The petition for a writ of amparo is a remedy available
to any person whose right to life, liberty and security is violated or threatened
with violation by an unlawful act or omission of a public official or employee,
or of a private individual or entity.
The writ shall cover extralegal killings and enforced disappearances or
threats thereof. (Emphasis ours.)
While Section 1 provides A.M. No. 07-9-12-SCs coverage, said Rules does
not, however, define extralegal killings and enforced disappearances. This
omission was intentional as the Committee on Revision of the Rules of Court
which drafted A.M. No. 07-9-12-SC chose to allow it to evolve through time
and jurisprudence and through substantive laws as may be promulgated by
Congress.[45] Then, the budding jurisprudence on amparo blossomed in
Razon, Jr. v. Tagitis[46] when this Court defined enforced disappearances.
The Court in that case applied the generally accepted principles of
international law and adopted the International Convention for the Protection
of All Persons from Enforced Disappearances definition of enforced
disappearances, as the arrest, detention, abduction or any other form of
deprivation of liberty by agents of the State or by persons or groups of persons
acting with the authorization, support or acquiescence of the State, followed
by a refusal to acknowledge the deprivation of liberty or by concealment of
the fate or whereabouts of the disappeared person, which place such a person
outside the protection of the law.[47]
Not long thereafter, another significant development affecting A.M. No. 07-
9-12-SC came about after Congress enacted Republic Act (RA) No. 9851[48]
on December 11, 2009. Section 3(g) thereof defines enforced or involuntary
disappearances as follows:
(g) "Enforced or involuntary disappearance of persons" means the arrest,
detention, or abduction of persons by, or with the authorization, support or
acquiescence of, a State or a political organization followed by a refusal to
acknowledge that deprivation of freedom or to give information on the fate
or whereabouts of those persons, with the intention of removing from the
protection of the law for a prolonged period of time.
Then came Rubrico v. Macapagal-Arroyo[49] where Justice Arturo D. Brion
wrote in his Separate Opinion that with the enactment of RA No. 9851, the
Rule on the Writ of Amparo is now a procedural law anchored, not only on
the constitutional rights to the rights to life, liberty and security, but on a
concrete statutory definition as well of what an enforced or involuntary
disappearance is.[50] Therefore, A.M. No. 07-9-12-SCs reference to enforced
disappearances should be construed to mean the enforced or involuntary
disappearance of persons contemplated in Section 3(g) of RA No. 9851.
Meaning, in probing enforced disappearance cases, courts should read A.M.
No. 07-9-12-SC in relation to RA No. 9851.
From the statutory definition of enforced disappearance, thus, we can derive
the following elements that constitute it:
(a) that there be an arrest, detention, abduction or any form of deprivation
of liberty;
(b) that it be carried out by, or with the authorization, support or
acquiescence of, the State or a political organization;
(c) that it be followed by the State or political organizations refusal to
acknowledge or give information on the fate or whereabouts of the person
subject of the amparo petition; and,
(d) that the intention for such refusal is to remove subject person from
the protection of the law for a prolonged period of time.
As thus dissected, it is now clear that for the protective writ of amparo to
issue, allegation and proof that the persons subject thereof are missing are not
82
enough. It must also be shown and proved by substantial evidence that the
disappearance was carried out by, or with the authorization, support or
acquiescence of, the State or a political organization, followed by a refusal to
acknowledge the same or give information on the fate or whereabouts of said
missing persons, with the intention of removing them from the protection of
the law for a prolonged period of time. Simply put, the petitioner in an amparo
case has the burden of proving by substantial evidence the indispensable
element of government participation.
In the present case, we do not doubt Bongs testimony that Navia had a
menacing attitude towards Ben and that he slapped and inflicted fistic blows
upon him. Given the circumstances and the pugnacious character of Navia at
that time, his threatening statement, Wala kang nakita at wala kang narinig,
papatayin ko na si Ben, cannot be taken lightly. It unambiguously showed his
predisposition at that time. In addition, there is nothing on record which
would support petitioners assertion that they released Ben on the night of
March 31, 2008 unscathed from their wrath. Lolita sufficiently explained how
she was prodded into affixing her signatures in the logbook without reading
the entries therein. And so far, the information petitioners volunteered are
sketchy at best, like the alleged complaint of Mrs. Emphasis who was never
identified or presented in court and whose complaint was never reduced in
writing.
We are aware that under Section 1 of A.M. No. 07-9-12-SC a writ of amparo
may lie against a private individual or entity. But even if the person sought to
be held accountable or responsible in an amparo petition is a private
individual or entity, still, government involvement in the disappearance
remains an indispensable element. Here, petitioners are mere security guards
at Grand Royale Subdivision in Brgy. Lugam, Malolos City and their
principal, the Asian Land, is a private entity. They do not work for the
government and nothing has been presented that would link or connect them
to some covert police, military or governmental operation. As discussed
above, to fall within the ambit of A.M. No. 07-9-12-SC in relation to RA No.
9851, the disappearance must be attended by some governmental
involvement. This hallmark of State participation differentiates an enforced
disappearance case from an ordinary case of a missing person.
WHEREFORE, the July 24, 2008 Decision of the Regional Trial Court,
Branch 20, Malolos City, is REVERSED and SET ASIDE. The Petition for
Writ of Amparo filed by Virginia Pardico is hereby DISMISSED.

But lest it be overlooked, in an amparo petition, proof of disappearance alone

is not enough. It is likewise essential to establish that such disappearance was
carried out with the direct or indirect authorization, support or acquiescence
of the government. This indispensable element of State participation is not
present in this case. The petition does not contain any allegation of State
complicity, and none of the evidence presented tend to show that the
government or any of its agents orchestrated Bens disappearance. In fact,
none of its agents, officials, or employees were impleaded or implicated in
Virginias amparo petition whether as responsible or accountable persons.[51]
Thus, in the absence of an allegation or proof that the government or its agents
had a hand in Bens disappearance or that they failed to exercise extraordinary
diligence in investigating his case, the Court will definitely not hold the
government or its agents either as responsible or accountable persons.

83
G.R. No. 204528 February 19, 2013
SECRETARY LEILA M. DE LIMA, DIRECTOR NONNATUS R. ROJAS
and DEPUTY DIRECTOR REYNALDO 0. ESMERALDA, Petitioners,
vs.
MAGTANGGOL B. GATDULA, Respondent.
RESOLUTION
LEONEN, J.:
Submitted for our resolution is a prayer for the issuance of a temporary
restraining order and/or writ of preliminary injunction to enjoin "the Regional
Trial Court, Branch 26, in Manila from implementing its Decision x x x in
Civil Case No. 12-127405 granting respondent's application for the issuance
of inspection and production orders x x x."1 This is raised through a Petition
for Review on Certiorari under Rule 45 from the "Decision" rendered by the
Regional Trial Court dated 20 March 2012.
From the records, it appears that on 27 February 2012, respondent
Magtanggol B. Gatdula filed a Petition for the Issuance of a Writ of Amparo
in the Regional Trial Court of Manila.2 This case was docketed as In the
Matter of the Petition for Issuance of Writ of Amparo of Atty. Magtanggol
B. Gatdula, SP No. 12-127405. It was raffled to the sala of Judge Silvino T.
Pampilo, Jr. on the same day.
The Amparo was directed against petitioners Justice Secretary Leila M. De
Lima, Director Nonnatus R. Rojas and Deputy Director Reynaldo O.
Esmeralda of the National Bureau of Investigation (DE LIMA, ET AL. for
brevity). Gatdula wanted De Lima, et al. "to cease and desist from framing
up Petitioner [Gatdula] for the fake ambush incident by filing bogus charges
of Frustrated Murder against Petitioner [Gatdula] in relation to the alleged
ambush incident."3
Instead of deciding on whether to issue a Writ of Amparo, the judge issued
summons and ordered De Lima, et al. to file an Answer.4 He also set the case
for hearing on 1 March 2012. The hearing was held allegedly for determining
whether a temporary protection order may be issued. During that hearing,
counsel for De Lima, et al. manifested that a Return, not an Answer, is
appropriate for Amparo cases.5
In an Order dated 2 March 2012,6 Judge Pampilo insisted that "[s]ince no
writ has been issued, return is not the required pleading but answer".7 The
judge noted that the Rules of Court apply suppletorily in Amparo cases.8 He
opined that the Revised Rules of Summary Procedure applied and thus
required an Answer.9
Judge Pampilo proceeded to conduct a hearing on the main case on 7 March
2012.10 Even without a Return nor an Answer, he ordered the parties to file
their respective memoranda within five (5) working days after that hearing.
Since the period to file an Answer had not yet lapsed by then, the judge also
decided that the memorandum of De Lima, et al. would be filed in lieu of
their Answer.11
On 20 March 2012, the RTC rendered a "Decision" granting the issuance of
the Writ of Amparo. The RTC also granted the interim reliefs prayed for,
namely: temporary protection, production and inspection orders. The
production and inspection orders were in relation to the evidence and reports
involving an on-going investigation of the attempted assassination of Deputy
Director Esmeralda. It is not clear from the records how these pieces of
evidence may be related to the alleged threat to the life, liberty or security of
the respondent Gatdula.
In an Order dated 8 October 2012, the RTC denied the Motion for
Reconsideration dated 23 March 2012 filed by De Lima, et al.
Petitioners Sec. De Lima, et al. thus came to this Court assailing the RTC
"Decision" dated 20 March 2012 through a Petition for Review on Certiorari
(With Very Urgent Application for the Issuance of a Temporary Restraining
Order/Writ of Preliminary Injunction) via Rule 45, as enunciated in Section
19 of the Rule on the Writ of Amparo (A.M. No. 07-9- 12-SC, 25 September
2007), viz:
SEC. 19. Appeal. – Any party may appeal from the final judgment or order
to the Supreme Court under Rule 45. The appeal may raise questions of fact
or law or both. x x x (Emphasis supplied).
It is the Court’s view that the "Decision" dated 20 March 2012 granting the
writ of Amparo is not the judgment or final order contemplated under this
84
rule. Hence, a Petition for Review under Rule 45 may not yet be the proper
remedy at this time.
The RTC and the Parties must understand the nature of the remedy of Amparo
to put its procedures in the proper context.
The remedy of the Writ of Amparo is an equitable and extraordinary remedy
to safeguard the right of the people to life, liberty12 and security13 as
enshrined in the 1987 Constitution.14 The Rule on the Writ of Amparo was
issued as an exercise of the Supreme Court's power to promulgate rules
concerning the protection and enforcement of constitutional rights.15 It aims
to address concerns such as, among others, extrajudicial killings and enforced
disappearances.16
Due to the delicate and urgent nature of these controversies, the procedure
was devised to afford swift but decisive relief.17 It is initiated through a
petition18 to be filed in a Regional Trial Court, Sandiganbayan, the Court of
Appeals, or the Supreme Court.19 The judge or justice then makes an
"immediate" evaluation20 of the facts as alleged in the petition and the
affidavits submitted "with the attendant circumstances detailed".21 After
evaluation, the judge has the option to issue the Writ of Amparo22 or
immediately dismiss the case. Dismissal is proper if the petition and the
supporting affidavits do not show that the petitioner's right to life, liberty or
security is under threat or the acts complained of are not unlawful. On the
other hand, the issuance of the writ itself sets in motion presumptive judicial
protection for the petitioner. The court compels the respondents to appear
before a court of law to show whether the grounds for more permanent
protection and interim reliefs are necessary.
The respondents are required to file a Return23 after the issuance of the writ
through the clerk of court. The Return serves as the responsive pleading to
the petition.24 Unlike an Answer, the Return has other purposes aside from
identifying the issues in the case. Respondents are also required to detail the
actions they had taken to determine the fate or whereabouts of the aggrieved
party.
If the respondents are public officials or employees, they are also required to
state the actions they had taken to: (i) verify the identity of the aggrieved
party; (ii) recover and preserve evidence related to the death or disappearance
of the person identified in the petition; (iii) identify witnesses and obtain
statements concerning the death or disappearance; (iv) determine the cause,
manner, location, and time of death or disappearance as well as any pattern
or practice that may have brought about the death or disappearance; and (vi)
bring the suspected offenders before a competent court.25 Clearly these
matters are important to the judge so that s/he can calibrate the means and
methods that will be required to further the protections, if any, that will be
due to the petitioner.
There will be a summary hearing26 only after the Return is filed to determine
the merits of the petition and whether interim reliefs are warranted. If the
Return is not filed, the hearing will be done ex parte.27 After the hearing, the
court will render the judgment within ten (10) days from the time the petition
is submitted for decision.28
If the allegations are proven with substantial evidence, the court shall grant
the privilege of the writ and such reliefs as may be proper and appropriate.29
The judgment should contain measures which the judge views as essential for
the continued protection of the petitioner in the Amparo case. These measures
must be detailed enough so that the judge may be able to verify and monitor
the actions taken by the respondents. It is this judgment that could be subject
to appeal to the Supreme Court via Rule 45.30 After the measures have served
their purpose, the judgment will be satisfied. In Amparo cases, this is when
the threats to the petitioner’s life, liberty and security cease to exist as
evaluated by the court that renders the judgment. Parenthetically, the case
may also be terminated through consolidation should a subsequent case be
filed – either criminal or civil.31 Until the full satisfaction of the judgment,
the extraordinary remedy of Amparo allows vigilant judicial monitoring to
ensure the protection of constitutional rights.
The "Decision" dated 20 March 2012 assailed by the petitioners could not be
the judgment or final order that is appealable under Section 19 of the Rule on
the Writ of Amparo. This is clear from the tenor of the dispositive portion of
the "Decision", to wit:
The Branch Clerk of Court of Court [sic] is hereby DIRECTED to issue the
Writ of Amparo.
Likewise, the Branch Clerk of Court is hereby DIRECTED to effect the
service of the Writ of Amparo in an expeditious manner upon all concerned,
85
and for this purpose may call upon the assistance of any military or civilian
agency of the government.
This "Decision" pertained to the issuance of the writ under Section 6 of the
Rule on the Writ of Amparo, not the judgment under Section 18. The
"Decision" is thus an interlocutory order, as suggested by the fact that
temporary protection, production and inspection orders were given together
with the decision. The temporary protection, production and inspection orders
are interim reliefs that may be granted by the court upon filing of the petition
but before final judgment is rendered.32
The confusion of the parties arose due to the procedural irregularities in the
RTC.
First, the insistence on filing of an Answer was inappropriate. It is the Return
that serves as the responsive pleading for petitions for the issuance of Writs
of Amparo. The requirement to file an Answer is contrary to the intention of
the Court to provide a speedy remedy to those whose right to life, liberty and
security are violated or are threatened to be violated. In utter disregard of the
Rule on the Writ of Amparo, Judge Pampilo insisted on issuing summons and
requiring an Answer.
Judge Pampilo’s basis for requiring an Answer was mentioned in his Order
dated 2 March 2012:
Under Section 25 of the same rule [on the Writ of Amparo], the Rules of
Court shall apply suppletorily insofar as it is not inconsistent with the said
rule.
Considering the summary nature of the petition, Section 5 of the Revised
Rules of Summary Procedure shall apply.
Section 5. Answer – Within ten (10) days from service of summons, the
defendant shall file his Answer to the complaint and serve a copy thereof on
the plaintiff. x x x
WHEREFORE, based on the foregoing, the respondents are required to file
their Answer ten (days) from receipt of this Order.33
The 1991 Revised Rules of Summary Procedure is a special rule that the
Court has devised for the following circumstances:
SECTION 1. Scope. – This rule shall govern the summary procedure in the
Metropolitan Trial Courts, the Municipal Trial Courts in Cities, the Municipal
Trial Courts, and the Municipal Circuit Trial Courts in the following cases
falling within their jurisdiction:
A. Civil Cases:
(1) All cases of forcible entry and unlawful detainer, x x x.
(2) All other cases, except probate proceedings, where the total amount of the
plaintiff’s claim does not exceed x x x.
B. Criminal Cases:
(1) Violations of traffic laws, rules and regulations;
(2) Violations of the rental law;
(3) Violations of municipal or city ordinances;
(4) All other criminal cases where the penalty prescribed by law for the
offense charged is imprisonment not exceeding six months, or a fine not
exceeding one thousand pesos (P1,000.00), or both, x x x.
xxxx
It is clear from this rule that this type of summary procedure only applies to
MTC/MTCC/MCTCs. It is mind-boggling how this rule could possibly apply
to proceedings in an RTC. Aside from that, this Court limited the application
of summary procedure to certain civil and criminal cases. A writ of Amparo
is a special proceeding. It is a remedy by which a party seeks to establish a
status, a right or particular fact.34 It is not a civil nor a criminal action, hence,
the application of the Revised Rule on Summary Procedure is seriously
misplaced.
86
The second irregularity was the holding of a hearing on the main case prior
to the issuance of the writ and the filing of a Return. Without a Return, the
issues could not have been properly joined.
Worse, is the trial court’s third irregularity: it required a memorandum in lieu
of a responsive pleading (Answer) of De Lima, et al.
The Return in Amparo cases allows the respondents to frame the issues
subject to a hearing. Hence, it should be done prior to the hearing, not after.
A memorandum, on the other hand, is a synthesis of the claims of the party
litigants and is a final pleading usually required before the case is submitted
for decision. One cannot substitute for the other since these submissions have
different functions in facilitating the suit.
More importantly, a memorandum is a prohibited pleading under the Rule on
the Writ of Amparo.35
The fourth irregularity was in the "Decision" dated 20 March 2012 itself. In
the body of its decision, the RTC stated:
"Accordingly this court GRANTS the privilege of the writ and the interim
reliefs prayed for by the petitioner." (Emphasis supplied).
This gives the impression that the decision was the judgment since the
phraseology is similar to Section 18 of the Rule on the Writ of Amparo:
"SEC. 18. Judgment. — The court shall render judgment within ten (10) days
from the time the petition is submitted for decision. If the allegations in the
petition are proven by substantial evidence, the court shall grant the privilege
of the writ and such reliefs as may be proper and appropriate; otherwise, the
privilege shall be denied." (Emphasis supplied).
The privilege of the Writ of Amparo should be distinguished from the actual
order called the Writ of Amparo. The privilege includes availment of the
entire procedure outlined in A.M. No. 07-9-12-SC, the Rule on the Writ of
Amparo. After examining the petition and its attached affidavits, the Return
and the evidence presented in the summary hearing, the judgment should
detail the required acts from the respondents that will mitigate, if not totally
eradicate, the violation of or the threat to the petitioner's life, liberty or
security.
A judgment which simply grants "the privilege of the writ" cannot be
executed.1âwphi1 It is tantamount to a failure of the judge to intervene and
grant judicial succor to the petitioner. Petitions filed to avail of the privilege
of the Writ of Amparo arise out of very real and concrete circumstances.
Judicial responses cannot be as tragically symbolic or ritualistic as "granting
the privilege of the Writ of Amparo."
The procedural irregularities in the RTC affected the mode of appeal that
petitioners used in elevating the matter to this Court.
It is the responsibility of counsels for the parties to raise issues using the
proper procedure at the right time. Procedural rules are meant to assist the
parties and courts efficiently deal with the substantive issues pertaining to a
case. When it is the judge himself who disregards the rules of procedure,
delay and confusion result.
The Petition for Review is not the proper remedy to assail the interlocutory
order denominated as "Decision" dated 20 March 2012. A Petition for
Certiorari, on the other hand, is prohibited.36 Simply dismissing the present
petition, however, will cause grave injustice to the parties involved. It
undermines the salutary purposes for which the Rule on the Writ of Amparo
were promulgated.
In many instances, the Court adopted a policy of liberally construing its rules
in order to promote a just, speedy and inexpensive disposition of every action
and proceeding.37 The rules can be suspended on the following grounds: (1)
matters of life, liberty, honor or property, (2) the existence of special or
compelling circumstances, (3) the merits of the case, (4) a cause not entirely
attributable to the fault or negligence of the party favored by the suspension
of the rules, (5) a lack of any showing that the review sought is merely
frivolous and dilatory, and (6) the other party will not be unjustly prejudiced
thereby.38
WHEREFORE, in the interest of justice, as a prophylactic to the irregularities
committed by the trial court judge, and by virtue of its powers under Article
VIII, Section 5 (5) of the Constitution, the Court RESOLVES to:
87
(1) NULLIFY all orders that are subject of this Resolution issued by Judge
Silvino T. Pampilo, Jr. after respondent Gatdula filed the Petition for the
Issuance of a Writ of Amparo;

(2) DIRECT Judge Pampilo to determine within forty-eight (48) hours from
his receipt of this Resolution whether the issuance of the Writ of Amparo is
proper on the basis of the petition and its attached affidavits.

The Clerk of Court is DIRECTED to cause the personal service of this

Resolution on Judge Silvino T. Pampilo, Jr. of Branch 26 of the Regional
Trial Court of Manila for his proper guidance together with a WARNING
that further deviation or improvisation from the procedure set in A.M. No.
07-9-12-SC shall be meted with severe consequences.

88
G.R. No. 193652 August 5, 2014
Infant JULIAN YUSA Y CARAM, represented by his mother, MA.
CHRISTINA YUSAY CARAM, Petitioner,
vs.
Atty. MARIJOY D. SEGUI, Atty. SALLY D. ESCUTIN, VILMA B.
CABRERA, and CELIA C. YANGCO, Respondents.
DECISION
VILLARAMA, JR., J.:
Before us is a petition for review on certiorari under Rule 45 of the 1997
Rules of Civil Procedure, as amended, and Section 191 of the Rule on the
Writ of Amparo2 seeking to set aside the August 17, 20103 and September
6, 20104 Orders of the Regional Trial Court (RTC), Branch 106 of Quezon
City, in Sp. Proc. Case No. Q-10-67604. The RTC had dismissed petitioner’s
petition for the issuance ofa writ of amparo which petitioner filed in order for
her to regain parental authority and custody of Julian Yusay Caram (Baby
Julian), her biological child, from the respondent officers of the Department
of Social Welfare and Development (DSWD). The factual antecedents as
gleaned from the records follow:
Petitioner Ma. Christina Yusay Caram(Christina) had an amorous
relationship with Marcelino Gicano Constantino III (Marcelino) and
eventually became pregnant with the latter’s child without the benefit of
marriage. After getting pregnant, Christina mislead Marcelino into believing
that she had an abortion when in fact she proceeded to complete the term of
her pregnancy. During this time, she intended to have the child adopted
through Sun and Moon Home for Children (Sun and Moon) in Parañaque
City to avoid placing her family ina potentially embarrassing situation for
having a second illegitimate son.5
On July 26, 2009, Christina gavebirth to Baby Julian at Amang Rodriguez
Memorial MedicalCenter, Marikina City.6 Sun and Moon shouldered all the
hospital and medical expenses. On August 13, 2009, Christina voluntarily
surrendered Baby Julian by way of a Deed of Voluntary Commitment7 to the
DSWD.
On November 26, 2009, Marcelino suffered a heart attack and died8 without
knowing about the birth of his son. Thereafter, during the wake, Christina
disclosed to Marcelino’s family that she and the deceased had a son that she
gave up for adoption due to financial distress and initial embarrassment.
Marcelino’s family was taken aback by the revelation and sympathized with
Christina. After the emotional revelation, they vowed to help her recover and
raise the baby.9 On November 27, 2009, the DSWD, through Secretary
Esperanza I. Cabral issued a certificate10 declaring Baby Julian as "Legally
Available for Adoption." A local matching conference was held on January
27, 2010 and on February 5, 2010, Baby Julian was "matched" with the
spouses Vergel and Filomina Medina (Medina Spouses) of the Kaisahang
Bahay Foundation. Supervised trial custody then commenced.11
On May 5, 2010, Christina who had changed her mind about the adoption,
wrote a letter to the DSWDasking for the suspension of Baby Julian’s
adoption proceedings. She alsosaid she wanted her family back together.12
On May 28, 2010, the DSWD, through respondent Atty. Marijoy D. Segui,
sent a Memorandum13 to DSWD Assistant Secretary Vilma B. Cabrera
informing her that the certificate declaring Baby Julian legally available for
adoption had attained finality on November 13, 2009, or three months after
Christina signed the Deed of Voluntary Commitment which terminated her
parental authority and effectively made Baby Julian a ward of the State. The
said Memorandum was noted by respondent Atty. Sally D. Escutin, Director
IV of the Legal Service, DSWD.
On July 12, 2010, Noel Gicano Constantino, Marcelino’s brother, sent a letter
to Atty. Escutin informing her that a DNA testing was scheduled on July 16,
2010 at the DNA Analysis Laboratory at the University of the Philippines.14
On July 16, 2010, Assistant Secretary Cabrera sent a letter15 to Noel
Constantino stating that it would not allow Baby Julian to undergo DNA
testing. Assistant Secretary Cabrera informed Noel Constantino that the
procedures followed relative to the certification on the availability of the child
for adoption and the child’s subsequent placement to prospective adoptive
parents were proper, and that the DSWD was no longer in the position to stop
the adoption process. Assistant Secretary Cabrera further stated that should
Christina wish to reacquire her parental authority over Baby Julian or halt the
adoption process, she may bring the matter to the regular courts as the
89
reglementary period for her to regain her parental rights had already lapsed
under Section 7 of Republic Act (R.A.) No. 9523.16
On July 27, 2010, Christina filed a petition17 for the issuance of a writ of
amparo before the RTC of Quezon City seeking to obtain custody of Baby
Julian from Atty. Segui, Atty. Escutin, Assistant Secretary Cabrera and
Acting Secretary Celia C. Yangco, all of the DSWD.
In her petition, Christina accused respondents of "blackmailing" her into
surrendering custody of her childto the DSWD utilizing what she claims to
be an invalid certificate of availability for adoption which respondents
allegedly used as basis to misrepresent that all legal requisites for adoption of
the minor child had been complied with.
Christina argued that by making these misrepresentations, the respondents
had acted beyond the scope of their legal authority thereby causing the
enforced disappearance of the said child and depriving her of her custodial
rights and parental authority over him.
On the basis of the said petition,the RTC, Branch 106 of Quezon City,
through its Presiding Judge, the Honorable Angelene Mary W. Quimpo-Sale,
issued a Writ of Amparo18 on July 28, 2010 commanding the four
respondents to produce the body of Baby Julian at a hearing scheduled on
August 4, 2010. Respondents were alsorequired to file their verified written
return to the writ pursuant to Section 919 of the Amparo Rule, within five
working days from the service of the writ.
The respondents complied with the writ and filed their Return20 on August
2, 2010 praying that the petition be denied for being the improper remedy to
avail of in a case relating toa biological parent’s custodial rights over her
child.
On August 4, 2010, respondents appeared before the RTC but respondents
did not bring the child, stating that threats of kidnapping were made on the
child and his caregivers. To give respondents another chance, the RTC reset
the hearing to August 5, 2010.
At the August 5, 2010 hearing, the Office of the Solicitor General (OSG)
entered its appearance as representative of the State and prayed that its
lawyers be given time to file their memorandum or position paper in this case.
In turn, the RTC acknowledged the appearance of the OSG and allowed its
representatives to actively participate in the arguments raised during the said
hearing. Relative to the matter of the parties submitting additional pleadings,
Judge Sale narrowed the issues to be discussed by providing for the following
guidelines, thus:
To abbreviate the proceedings, in view of all the manifestations and counter-
manifestations made by the counsels, the court enjoined the parties to file
their respective position papers on the following issues:
1. Whether or not this court has jurisdiction over the instant case;
2. Whether or not this petition isthe proper remedy based on the facts of the
case and prayer in the petition; and
3. Whether or not the prayer in the petition should be granted and custody of
the child be given to his biological mother.
The parties were given five (5) days from today to file their respective
position papers based on these three main issues. They may include other
related issues they deem essential for the resolution of this case. Set this case
for further hearing, if necessary, on August 18, 2010 at 9:00 a.m.21
In the same order, Judge Sale alsoacknowledged that the child subject of the
case was brought before the court and the petitioner was allowed to see him
and take photographs of him.
On August 17, 2010, the RTC dismissed the petition for issuance of a writ of
amparo without prejudice to the filing of the appropriate action in court. The
RTC held that Christina availed of the wrong remedy to regain custody of her
child Baby Julian.22 The RTC further stated that Christina should have filed
a civil case for custody of her child as laid down in the Family Code and the
Rule on Custody of Minors and Writ of Habeas Corpus in Relation to Custody
of Minors. If there is extreme urgency to secure custody of a minor who has
been illegallydetained by another, a petition for the issuance of a writ of
habeas corpus may be availed of, either as a principal or ancillary remedy,
pursuant to the Rule on Custody of Minors and Writ of Habeas Corpus
inRelation to Custody of Minors.23
90
On August 20, 2010, Christina filed a motion for reconsideration24 arguing
that since the RTC assumed jurisdiction of the petition for the issuance of a
writ of amparo, the latter is duty-bound to dispose the case on the merits.25
The RTC, however, deniedChristina’s motion for reconsideration on
September 6, 2010 maintaining that the latter availed of the wrong remedy
and that the Supreme Court intended the writ of amparo to address the
problem of extrajudicial killings and enforced disappearances.26
On September 28, 2010, Christina directly elevated the case before this Court,
via a petition for review on certiorari under Rule 45 of the 1997 Rules of Civil
Procedure, as amended, in relation to Section 19 of the Rule on the Writ of
Amparo. In her petition, Christina prayed that the Court (1) set aside the
August 17, 2010 and September 6, 2010 Orders of the RTC, (2) declare R.A.
No. 9523 unconstitutional for being contrary to A.M. No. 02-6-02-SC,27
which was promulgated by the Supreme Court, and for violating the doctrine
of separation of powers, (3) declare the "enforced separation" between her
and Baby Julian as violative of her rights to life, liberty and security, and (4)
grant her the privilege of availing the benefits of a writ of amparo so she could
be reunited with her son.28
The only relevant issue presented before the Court worthy of attention is
whether a petition for a writ of amparo is the proper recourse for obtaining
parental authority and custody of a minor child. This Court will not belabor
to discuss Christina’s argumentsrelating to the supposedunconstitutionality
or R.A. No. 9523 as Congress has the plenary power to repeal, alter and
modify existing laws29 and A.M. No. 02-6-02-SC functions only as a means
to enforce the provisions of all adoption and adoption-related statutes before
the courts.
Now, in her petition, Christina argues that the life, liberty and security of
Baby Julian is being violated or threatened by the respondent DSWD officers’
enforcement of an illegal Deed of Voluntary Commitment between her and
Sun and Moon. She claims thatshe had been "blackmailed" through the said
Deed by the DSWD officers and Sun and Moon’s representatives into
surrendering her child thereby causing the "forced separation" of the said
infant from his mother. Furthermore, she also reiterates that the respondent
DSWD officers acted beyond the scope of their authority when they deprived
her of Baby Julian’s custody.30
The Court rejects petitioner’s contentions and denies the petition.
Section 1 of the Rule on the Writ of Amparo provides as follows:
SECTION 1. Petition. – The petition for a writ of amparois a remedy
available to any person whose right to life, liberty and security is violated or
threatened with violation by an unlawful actor omission of a public official
or employee, or of a private individual or entity.
The writ shall cover extralegal killings and enforced disappearances or threats
thereof.
In the landmark case of Secretary of National Defense, et al. v. Manalo, et
al.,31 this Court held:
[T]he AmparoRule was intended to address the intractable problem of
"extralegal killings" and "enforced disappearances," its coverage, in its
present form, is confined to these two instances or to threats thereof.
"Extralegal killings" are "killings committed without due process of law, i.e.,
without legal safeguards or judicial proceedings." On the other hand,
"enforced disappearances" are "attended by the following characteristics: an
arrest, detention or abduction of a person by a government official or
organized groupsor private individuals acting with the direct or indirect
acquiescence of the government; the refusal of the State to disclose the fate
or whereabouts of the person concerned or a refusal to acknowledge the
deprivation of liberty which places such persons outside the protection of law.
This pronouncement on the coverage of the writ was further cemented in the
latter case of Lozada, Jr. v. Macapagal-Arroyo32 where this Court explicitly
declared that as it stands, the writ of amparo is confined only to cases of
extrajudicial killings and enforced disappearances, or to threats thereof. As to
what constitutes "enforced disappearance," the Court in Navia v. Pardico33
enumerated the elementsconstituting "enforced disappearances" as the term
is statutorily defined in Section 3(g) of R.A. No. 985134 to wit:
(a) that there be an arrest, detention, abduction or any form of deprivation of
liberty;
(b) that it be carried out by, or with the authorization, support or acquiescence
of, the State ora political organization;
91
(c) that it be followed by the State or political organization’s refusal to Proc. Case No. Q-10-67604 are AFFIRMED without prejudice to petitioner's
acknowledge or give information on the fate or whereabouts of the person right to avail of proper legal remedies afforded to her by law and related rules.
subject of the amparopetition; and,
No costs.
(d) that the intention for such refusal isto remove subject person from the
protection of the law for a prolonged period of time.1âwphi1

In this case, Christina alleged that the respondent DSWD officers caused her
"enforced separation" from Baby Julian and that their action amounted to an
"enforced disappearance" within the context of the Amparo rule. Contrary to
her position, however, the respondent DSWD officers never concealed Baby
Julian's whereabouts. In fact, Christina obtained a copy of the DSWD's May
28, 2010 Memorandum35 explicitly stating that Baby Julian was in the
custody of the Medina Spouses when she filed her petition before the RTC.
Besides, she even admitted in her petition for review on certiorari that the
respondent DSWD officers presented Baby Julian before the RTC during the
hearing held in the afternoon of August 5, 2010.36 There is therefore, no
"enforced disappearance" as used in the context of the Amparo rule as the
third and fourth elements are missing.

Christina's directly accusing the respondents of forcibly separating her from

her child and placing the latter up for adoption, supposedly without
complying with the necessary legal requisites to qualify the child for
adoption, clearly indicates that she is not searching for a lost child but
asserting her parental authority over the child and contesting custody over
him.37 Since it is extant from the pleadings filed that what is involved is the
issue of child custody and the exercise of parental rights over a child, who,
for all intents and purposes, has been legally considered a ward of the State,
the Amparo rule cannot be properly applied.

To reiterate, the privilege of the writ of amparo is a remedy available to

victims of extra-judicial killings and enforced disappearances or threats of a
similar nature, regardless of whether the perpetrator of the unlawful act or
omission is a public official or employee or a private individual. It is
envisioned basically to protect and guarantee the right to life, liberty and
security of persons, free from fears and threats that vitiate the quality of life.

WHEREFORE, the petition is DENIED. The August 17, 2010 and September
6, 2010 Orders of the Regional Trial Court, Branch 106, Quezon City in Sp.

92
G.R. No. 205039, October 21, 2015
SPOUSES ROZELLE RAYMOND MARTIN AND CLAUDINE
MARGARET SANTIAGO, Petitioners, v. RAFFY TULFO, BEN TULFO,
AND ERWIN TULFO, Respondents.
DECISION
PERLAS-BERNABE, J.:
Assailed in this petition for review on certiorari1 are the Resolutions dated
August 6, 20122 and January 7, 20133 of the Regional Trial Court of Quezon
City4 (RTC) in SP No. Q-12-71275, which (a) dismissed the petition for writ
of amparo filed by petitioners-spouses Rozelle Raymond Martin "Raymart"
(Raymart) and Claudine Margaret Santiago (Claudine; collectively,
petitioners) and (b) dissolved the temporary protection order (TPO)
previously issued therein.
The Facts
At around 11:40 in the morning of May 6, 2012, petitioners arrived at the
Ninoy Aquino International Airport Terminal 3 (NAIA 3) aboard a Cebu
Pacific Airline flight from a vacation with their family and friends. They
waited for the arrival of their baggage but were eventually informed that it
was offloaded and transferred to a different flight. Aggrieved, petitioners
lodged a complaint before the Cebu Pacific complaint desk. As they were
complaining, they noticed a man taking photos of Claudine with his cellular
phone. Ray mart approached the man and asked what he was doing.
Suddenly, the man, later identified as Ramon "Mon" Tulfo (Mon), allegedly
punched and kicked Raymart, forcing the latter to fight back. When Claudine
saw the commotion, she approached Mon and the latter likewise allegedly
kicked and pushed her back against the counter. At that instance, Raymart
rushed to defend his wife, while one Edoardo Benjamin Atilano (Atilano)
joined in the brawl. Immediately thereafter, several airport security personnel
came to stop the altercation and brought them to the Airport Police
Department for investigation.5
Days after the incident, respondents Raffy, Ben, and Erwin Tulfo
(respondents), brothers of Mon, aired on their TV program comments and
expletives against petitioners, and threatened that they will retaliate.6
Terrified by the gravity of the threats hurled, petitioners filed a petition for
the issuance of a writ of amparo against respondents on May 11, 2012 before
the RTC.7
On May 23, 2012, Erwin Tulfo filed a Manifestation and Motion to Deny
Issuance of Protection Order and/or Dismissal of the Petition Motu Proprio8
(May 23, 2012 Motion) which was opposed by petitioners for being a
prohibited pleading.9
On May 24, 2012, then Presiding Judge Bayani Vargas (JudgeVargas) issued
a Resolution10 granting a TPO in favor of petitioners and directed
respondents to file their return/answer.11
In his return/answer,12 Ben Tulfo claimed that the statements he uttered did
not involve any actual threat and that he merely expressed his strong
sentiments to defend his brother.13
On June 29, 2012, Judge Vargas submitted the case for resolution but
eventually retired on July 11, 2012. Consequently, Judge Maria Filomena
Singh (Judge Singh) was designated as the Acting Presiding Judge who
assumed office and handled the present case.14
The RTC Ruling
In a Resolution15 dated August 6, 2012, the RTC, through Judge Singh,
dismissed the petition and ordered the dissolution of the TPO.16 It held that
the petition is not a proper subject of a writ of amparo since the rules were
intended to apply solely to cases of extralegal killings and enforced
disappearances, noting that the purpose of the law is to, among others,
ascertain the whereabouts of an aggrieved party, recover evidence related to
the death or disappearance of the person identified in the petition, and
determine the facts surrounding the death or disappearance of a missing
person. Consequently, it held that it did not have the authority to issue said
writ in favor of petitioners. In this relation, it explained that while it is true
that the May 23, 2012 Motion was a motion to dismiss and as such, a
prohibited pleading under the rules, it still had the discretion to dismiss the
case when in its own determination the case is not covered by the same rule.
It expressed that the prohibition against motions to dismiss was meant to
expedite the proceedings; thus, in line with the same objective, it has the
93
primary duty to so declare if it cannot grant the remedy at the outset so as not
to waste the time and resources of the litigants and the courts, both in a moot
and academic exercise.17
Petitioners filed a motion for reconsideration,18 which was, however, denied
for lack of merit in a Resolution19 dated January 7, 2013; hence, this petition.
The Issue Before the Court
The essential issue in this case is whether or not the RTC's dismissal of
petitioners' amparo petition was correct.
Petitioners argue that the issuance of a writ of amparo is not limited to cases
of extrajudicial killings, enforced disappearances, or threats thereof.20 They
submit that they need not undergo the human rights abuses such as
extrajudicial killings or enforced disappearances, as is common to landmark
decisions on military and police abuses, before their right to life, liberty, and
security may be protected by a writ of amparo.21 Further, they insist that the
May 23, 2012 Motion was a prohibited pleading and, hence, should not have
been allowed.22
The Court's Ruling
The petition is bereft of merit.
In the landmark case of Secretary of National Defense v. Manalo (Manalo),23
the Court has already explained that the writ of amparo, under its present
procedural formulation, namely, A.M. No. 07-9-12-SC,24 otherwise known
as "The Rule on the Writ of Amparo," was intended to address and, thus, is
presently confined to cases involving extralegal killings and/or enforced
disappearances, or threats thereof:
As the Amparo Rule was intended to address the intractable problem of
"extralegal killings" and "enforced disappearances," its coverage, in its
present form, is confined to these two instances or to threats thereof, x x x.
(Emphasis and underscoring supplied)ChanRoblesVirtualawlibrary
Indeed, while amparo (which literally means "protection" in Spanish) has
been regarded as a special remedy provided for the enforcement of
constitutional rights, the parameters of protection are not the same in every
jurisdiction. In Manalo, the origins of amparo were discussed as follows:
The writ of amparo originated in Mexico. "Amparo" literally means
"protection" in Spanish. In 1837, de Tocqueville's Democracy in America
became available in Mexico and stirred great interest. Its description of the
practice of judicial review in the U.S. appealed to many Mexican jurists. One
of them, Manuel Crescencio Rejon, drafted a constitutional provision for his
native state, Yucatan, which granted judges the power to protect all persons
in the enjoyment of their constitutional and legal rights. This idea was
incorporated into the national constitution in 1847,
viz:chanRoblesvirtualLawlibrary
The federal courts shall protect any inhabitant of the Republic in the exercise
and preservation of those rights granted to him by this Constitution and by
laws enacted pursuant hereto, against attacks by the Legislative and
Executive powers of the federal or state governments, limiting themselves to
granting protection in the specific case in litigation, making no general
declaration concerning the statute or regulation that motivated the
violation.ChanRoblesVirtualawlibrary
Since then, the protection has been an important part of Mexican
constitutionalism. If, after hearing, the judge determines that a constitutional
right of the petitioner is being violated, he orders the official, or the official's
superiors, to cease the violation and to take the necessary measures to restore
the petitioner to the full enjoyment of the right in question. Amparo thus
combines the principles of judicial review derived from the U.S. with the
limitations on judicial power characteristic of the civil law tradition which
prevails in Mexico. It enables courts to enforce the constitution by protecting
individual rights in particular cases, but prevents them from using this power
to make law for the entire nation.
The writ of amparo then spread throughout the Western Hemisphere,
gradually evolving into various forms, in response to the particular needs of
each country. It became, in the words of a justice of the Mexican Federal
Supreme Court, one piece of Mexico's self-attributed "task of conveying to
the world's legal heritage that institution which, as a shield of human dignity,
her own painful history conceived." What began as a protection against acts
or omissions of public authorities in violation of constitutional rights later
evolved for several purposes: (1) amparo libertad for the protection of
personal freedom, equivalent to the habeas corpus writ; (2) amparo contra
leyes for the judicial review of the constitutionality of statutes; (3) amparo
94
casacion for the judicial review of the constitutionality and legality of a
judicial decision; (4) amparo administrativo for the judicial review of
administrative actions; and (5) amparo agrario for the protection of peasants"
rights derived from the agrarian reform process.
In Latin American countries, except Cuba, the writ of amparo has been
constitutionally adopted to protect against human rights abuses especially
committed in countries under military juntas. In general, these countries
adopted an all-encompassing writ to protect the whole gamut of constitutional
rights, including socio-economic rights. Other countries like Colombia,
Chile, Germany and Spain, however, have chosen to limit the protection of
the writ of amparo only to some constitutional guarantees or fundamental
rights.26
In our jurisdiction, the contextual genesis, at least, for the present Amparo
Rule has limited the remedy as a response to extrajudicial killings and
enforced disappearances, or threats thereof. "Extrajudicial killings,"
according to case law, are generally characterized as "killings committed
without due process of law, i.e., without legal safeguards or judicial
proceedings,"27 while "enforced disappearances," according to Section 3 (g)
of Republic Act No. 9851,28 otherwise known as the "Philippine Act on
Crimes Against International Humanitarian Law, Genocide, and Other
Crimes Against Humanity," "means the arrest, detention, or abduction of
persons by, or with the authorization, support or acquiescence of, a State or a
political organization followed by a refusal to acknowledge that deprivation
of freedom or to give information on the fate or whereabouts of those persons,
with the intention of removing from the protection of the law for a prolonged
period of time." In Navia v. Pardico,29 the Court held that it must be shown
and proved by substantial evidence that the disappearance was carried out by,
or with the authorization, support or acquiescence of, the State or a political
organization, followed by a refusal to acknowledge the same or give
information on the fate or whereabouts of said missing persons, with the
intention of removing them from the protection of the law for a prolonged
period of time. Simply put, the petitioner in an amparo case has the burden of
proving by substantial evidence the indispensable element of government
participation.30 Notably, the same requirement of government participation
should also apply to extralegal killings, considering that the writ of amparo
was, according to then Chief Justice Reynato S. Puno, who headed the
Committee on the Revision of the Rules of Court that drafted A.M. No. 07-
9-12-SC, intended to "hold public authorities, those who took their oath to
defend the constitution and enforce our laws, to a high standard of official
conduct and hold them accountable to our people. [In this light] [t]he
sovereign Filipino people should be assured that if their right[s] to life and
liberty are threatened or violated, they will find vindication in our courts of
justice."31 Stated differently, the writ of amparo is an extraordinary remedy
that is meant to balance out the government's incredible power in order to
curtail human rights abuses on its end.
Consistent therewith, the delimitation of our current writ of amparo to
extralegal killings and/or enforced disappearances, or threats thereof, is
explicit from Section 1 of A.M. No. 07-9-12-SC, which reads:
Section 1. Petition. - The petition for a writ of amparo is a remedy available
to any person whose right to life, liberty and security is violated or threatened
with violation by an unlawful act or omission of a public official or employee,
or of a private individual or entity.
The writ shall cover extralegal killings and enforced disappearances or threats
thereof.
While the foregoing rule, as per Section 1 of A.M. No. 07-9-12-SC's first
paragraph, does state that the writ is a remedy to protect the right to life,
liberty, and security of the person desiring to avail of it, the same section's
second paragraph qualifies that the protection of such rights specifically
pertain to extralegal killings and enforced disappearances or threats thereof,
which are more concrete cases that involve protection to the rights to life,
liberty and security. The two paragraphs should indeed be read together in
order to construe the meaning of the provision. Clearly applicable is the
statutory construction rule that "clauses and phrases must not be taken as
detached and isolated expressions, but the whole and every part thereof must
be considered in fixing the meaning of any of its parts in order to produce a
harmonious whole. Every part of the statute [or, in this case, procedural rule]
must be interpreted with reference to the context, i.e., that every part of the
statute must be considered together with other parts of the statute and kept
subservient to the general intent of the whole enactment."32
In this case, it is undisputed that petitioners' amparo petition before the RTC
does not allege any case of extrajudicial killing and/or enforced
disappearance, or any threats thereof, in the senses above-described. Their
petition is merely anchored on a broad invocation of respondents' purported
95
violation of their right to life and security, carried out by private individuals
without any showing of direct or indirect government participation. Thus, it
is apparent that their amparo petition falls outside the purview of A.M. No.
07-9-12-SC and, perforce, must fail. Hence, the RTC, through Judge Singh,
properly exercised its discretion to motu proprio dismiss the same under this
principal determination, regardless of the filing of the May 23, 2012 Motion.
The court, indeed, has the discretion to determine whether or not it has the
authority to grant the relief in the first place. And when it is already apparent
that the petition falls beyond the purview of the rule, it has the duty to dismiss
the petition so as not to prejudice any of the parties through prolonged but
futile litigation.

WHEREFORE, the petition is DENIED. The petition for writ of amparo filed
by petitioners-spouses Rozelle Raymond Martin and Claudine Margaret
Santiago before the Regional Trial Court of Quezon City, docketed as SP No.
Q-12-71275, is hereby DISMISSED.

SO ORDERED.chanroblesvirtuallawlibrary

96

G.R. No. 16444 September 8, 1920
EMETERIA VILLAFLOR, petitioner,
vs.
RICARDO SUMMERS, sheriff of the City of Manila, respondent.
Alfredo Calupitan, and Gibbs, McDonough & Johnson for petitioner.
Assistant City of Fiscal Felix for respondent.
MALCOLM, J.:
The petitioner prays that a writ of habeas corpus issue to restore her to her
liberty.
The facts are not dispute. In a criminal case pending before the Court of First
Instance of the city of Manila, Emeteria Villaflor and Florentino Souingco
are charged with the crime of adultery. On this case coming on for trial before
the Hon. Pedro Concepcion, Judge of First Instance, upon the petitioner of
the assistant fiscal for the city of Manila, the court ordered the defendant
Emeteria Villaflor, nor become the petitioner herein, to submit her body to
the examination of one or two competent doctors to determine if she was
pregnant or not. The accused refused to obey the order on the ground that
such examination of her person was a violation of the constitutional provision
relating to self-incrimination. Thereupon she was found in contempt of court
and was ordered to be committed to Bilibid Prison until she should permit the
medical examination required by the court.
The sole legal issue from the admitted facts is whether the compelling of a
woman to permit her body to be examined by physicians to determine if she
is pregnant, violates that portion of the Philippine Bill of Rights and that
portion of our Code of Criminal Procedure which find their origin in the
Constitution of the United States and practically all state constitutions and in
the common law rules of evidence, providing that no person shall be
compelled in any criminal case to be a witness against himself. (President's
Instructions to the Philippine Commission; Act of Congress of July 1, 1902,
section 5, paragraph 3; Act of Congress of August 29, 1916, section 3;
paragraph 3; Code of Criminal Procedure, section 15 [4]; United States
Constitution, fifth amendment.) Counsel for petitioner argues that such bodily
exhibition is an infringement of the constitutional provision; the
representative of the city fiscal contends that it is not an infringement of the
constitutional provision. The trial judge in the instant case has held with the
fiscal; while it is brought to our notice that a judge of the same court has held
on an identical question as contended for by the attorney for the accused and
petitioner.
The authorities are abundant but conflicting. What may be termed the
conservative courts emphasize greatly the humanitarianism of the
constitutional provisions and are pleased to extend the privilege in order that
its mantle may cover any fact by which the accused is compelled to make
evidence against himself. (Compare State vs. Jacobs [1858], 50 N. C., 259
with State vs. Ah Chuey [1879], 14 Nev., 79. See further State vs. Ah
Nordstrom [1893], 7 Wash., 506; State vs. Height [1902]. 117 Iowa., 650;
Thornton vs. State [1903], 117 Wis., 338.) A case concordant with this view
and almost directly in point is People vs. McCoy ([1873], 45 How. Pr., 216).
A woman was charged with the crime of infanticide. The corner directed two
physicians to go to the jail and examine her private parts to determine whether
she had recently been delivered of a child. She objected to the examination,
but being threatened with force, yielded, and the examination was had. The
evidence of these physicians was offered at the trial and ruled out. The court
said that the proceeding was in violation of the spirit and meaning of the
Constitution, which declares that "no person shall be compelled in any
criminal case to be a witness against himself." Continuing, the court said:
"They might as well have sworn the prisoner, and compelled her, by threats,
to testify that she had been pregnant, and had been delivered of a child, as to
have compelled her, by threats, to allow them to look into her person, with
the aid of a speculum, to ascertain whether she had been pregnant and been
delivered of a child. . . . Has this court the right to compel the prisoner now
to submit to an examination they are of the opinion she is not a virgin, and
has had a child? It is not possible that this court has that right; and it is too
clear to admit of argument that evidence thus obtained would be inadmissible
against the prisoner."
It may be revealing a judicial secret, but nevertheless we cannot refrain from
saying that, greatly impressed with the weight of these decisions, especially
the one written by Mr. Justice McClain, in State vs. Height, supra, the instant
case was reported by the writer with the tentative recommendation that the
court should lay down the general rule that a defendant can be compelled to
disclose only those parts of the body which are not usually covered. Buth
having disabused our minds of a too sensitive appreciation of the rights of
97
accused persons, and having been able, as we think, to penetrate through the
maze of law reports to the policy which lies behind the constitutional
guaranty and the common law principle, we have come finally to take our
stand with what we believe to be the reason of the case.
In contradistinction to the cases above-mentioned are others which seem to
us more progressive in nature. Among these can be prominently mentioned
decisions of the United States Supreme Court, and the Supreme Court of these
Islands. Thus, the always forward looking jurist, Mr. Justice Holmes, in the
late case of Holt vs. United States ([1910], 218 U. S., 245), in resolving an
objection based upon what he termed "an extravagant extension of the Fifth
Amendment," said: "The prohibition of compelling a man in a criminal court
to be a witness against himself is a prohibition of the use of physical or moral
compulsion to extort communications from him, not an exclusion of his body
as evidence when it may be material." (See also, of same general tenor,
decision of Mr. Justice Day in Adams vs. New York [1903], 192 U. S., 585.)
The Supreme Court of the Philippine Islands, in two decisions, has seemed
to limit the protection to a prohibition against compulsory testimonial self-
incrimination. The constitutional limitation was said to be "simply a
prohibition against legal process to extract from the defendant's own lips,
against his will, an admission of his guilt." (U. S. vs. Tan Teng [1912], 23
Phil., 145; U. S. vs. Ong Siu Hong [1917], 36 Phil., 735, and the derivatory
principle announced in 16 Corpus Juris, 567, 568, citing the United States
Supreme Court and the Supreme Court of the Philippine Islands as authority.)
Although we have stated s proposition previously announced by this court
and by the highest tribunal in the United States, we cannot unconcernedly
leave the subject without further consideration. Even in the opinion Mr.
Justice Holmes, to which we have alluded, there was inserted the careful
proviso that "we need not consider how far a court would go in compelling a
man to exhibit himself." Other courts have likewise avoided any attempt to
determine the exact location of the dividing line between what is proper and
what is improper in this very broad constitutional field. But here before us is
presented what would seem to be the most extreme case which could be
imagined. While the United States Supreme Court could nonchalantly decree
that testimony that an accused person put on a blouse and it fitted him is not
a violation of the constitutional provision, while the Supreme Court of
Nuevada could go so far as to require the defendant to roll up his sleeve in
order to disclose tattoo marks, and while the Supreme Court of the Philippine
Islands could permit substances taken from the person of an accused to be
offered in evidence, none of these even approach in apparent harshness an
order to make a woman, possibly innocent, to disclose her body in all of its
sanctity to the gaze of strangers. We can only consistently consent to the
retention of a principle which would permit of such a result by adhering
steadfastly to the proposition that the purpose of the constitutional provision
was and is merely to prohibit testimonial compulsion.
So much for the authorities. For the nonce we would prefer to forget them
entirely, and here in the Philippines, being in the agrreable state of breaking
new ground, would rather desire our decision to rest on a strong foundation
of reason and justice than on a weak one blind adherence to tradition and
precedent. Moreover, we believe that an unbiased consideration of the history
of the constitutional provisions will disclose that our conclusion is in exact
accord with the causes which led to its adoption.
The maxim of the common law, Nemo tenetur seipsum accusare, was
recognized in England in early days, but not in the other legal systems of the
world, in a revolt against the thumbscrew and the rack. A legal shield was
raised against odious inquisitorial methods of interrogating an accused person
by which to extort unwilling confessions with the ever present temptation to
commit the crime of perjury. The kernel of the privilege as disclosed by the
textwriters was testimonial compulsion. As forcing a man to be a witness
against himself was deemed contrary to the fundamentals of republican
government, the principle was taken into the American Constitutions, and
from the United States was brought to the Philippine Islands, in exactly as
wide — but no wider — a scope as it existed in old English days. The
provision should here be approached in no blindly worshipful spirit, but with
a judicious and a judicial appreciation of both its benefits and its abuses.
(Read the scholarly articles of Prof. Wigmore in 5 Harvard L. R. [1891], p.
71, and 15 Harvard L. R., 1902, p. 610 found in 4 Wigmore on Evidence, pp.
3069 et seq., and U. S. vs. Navarro [1904], Phil., 143.)
Perhaps the best way to test the correctness of our position is to go back once
more to elements and ponder on what is the prime purpose of a criminal trial.
As we view it, the object of having criminal laws is to purgue the community
of persons who violate the laws to the great prejudice of their fellow men.
Criminal procedure, the rules of evidence, and constitutional provisions, are
then provided, not to protect the guilty but to protect the innocent. No rule is
intemended to be so rigid as to embarrass the administration of justice in its
endeavor to ascertain the truth. No accused person should be afraid of the use
98
of any method which will tend to establish the truth. For instance, under the
facts before us, to use torture to make the defendant admit her guilt might
only result in including her to tell a falsehood. But no evidence of physical
facts can for any substantial reason be held to be detrimental to the accused
except in so far as the truth is to be avoided in order to acquit a guilty person.
Obviously a stirring plea can be made showing that under the due process of
law cause of the Constitution every person has a natural and inherent right to
the possession and control of his own body. It is extremely abhorrent to one's
sense of decency and propriety to have the decide that such inviolability of
the person, particularly of a woman, can be invaded by exposure to another's
gaze. As Mr. Justice Gray in Union Pacific Railway Co. vs. Botsford ([1891],
141 U. S., 250) said, "To compel any one, and especially a woman, to lay
bare the body, or to submit to the touch of a stranger, without lawful authority,
is an indignity, an assault, and a trespass." Conceded, and yet, as well
suggested by the same court, even superior to the complete immunity of a
person to be let alone is the inherent which the public has in the orderly
administration of justice. Unfortunately, all too frequently the modesty of
witnesses is shocked by forcing them to answer, without any mental evasion,
questions which are put to them; and such a tendency to degrade the witness
in public estimation does not exempt him from the duty of disclosure.
Between a sacrifice of the ascertainment of truth to personal considerations,
between a disregard of the public welfare for refined notions of delicacy, law
and justice cannot hesitate.
the accused is permissible. The proviso is that torture of force shall be
avoided. Whether facts fall within or without the rule with its corollary and
proviso must, of course, be decided as cases arise.
It is a reasonable presumption that in an examination by reputable and
disinterested physicians due care will be taken not to use violence and not to
embarass the patient any more than is absolutely necessary. Indeed, no
objection to the physical examination being made by the family doctor of the
accused or by doctor of the same sex can be seen.
Although the order of the trial judge, acceding to the request of the assistant
fiscal for an examination of the person of the defendant by physicians was
phrased in absolute terms, it should, nevertheless, be understood as subject to
the limitations herein mentioned, and therefore legal. The writ of habeas
corpus prayed for is hereby denied. The costs shall be taxed against the
petitioner. So ordered.
Mapa, C.J., Araullo, Avanceña, Moir and Villamor, JJ., concur.

The protection of accused persons has been carried to such an unwarranted

extent that criminal trials have sometimes seemed to be like a game of
shuttlecocks, with the judge as referee, the lawyers as players, the criminal as
guest of honor, and the public as fascinated spectators. Against such a loose
extension of constitutional guaranties we are here prepared to voice our
protest.

Fully conscious that we are resolving a most extreme case in a sense, which
on first impression is a shock to one's sensibilities, we must nevertheless
enforce the constitutional provision in this jurisdiction in accord with the
policy and reason thereof, undeterred by merely sentimental influences. Once
again we lay down the rule that the constitutional guaranty, that no person
shall be compelled in any criminal case to be a witness against himself, is
limited to a prohibition against compulsory testimonial self-incrimination.
The corollary to the proposition is that, an ocular inspection of the body of

99
G.R. No. 32025 September 23, 1929
FRANCISCO BELTRAN, petitioner,
vs.
FELIX SAMSON, Judge of the Second Judicial District, and FRANCISCO
JOSE, Provincial Fiscal of Isabela, respondents.
Gregorio P. Formoso and Vicente Formoso for petitioner.
The respondents in their own behalf.
ROMUALDEZ, J.:
This is a petition for a writ of prohibition, wherein the petitioner complains
that the respondent judge ordered him to appear before the provincial fiscal
to take dictation in his own handwriting from the latter.
The order was given upon petition of said fiscal for the purpose of comparing
the petitioner's handwriting and determining whether or not it is he who wrote
certain documents supposed to be falsified.
There is no question as to the facts alleged in the complaint filed in these
proceedings; but the respondents contend that the petitioner is not entitled to
the remedy applied for, inasmuch as the order prayed for by the provincial
fiscal and later granted by the court below, and again which the instant action
was brought, is based on the provisions of section 1687 of the Administrative
Code and on the doctrine laid down in the cases of People vs. Badilla (48
Phil., 718); United States vs. Tan Teng (23 Phil., 145); United States vs. Ong
Siu Hong (36 Phil., 735), cited by counsel for the respondents, and in the case
of Villaflor vs. Summers (41 Phil., 62) cited by the judge in the order in
question.
Of course, the fiscal under section 1687 of the Administrative Code, and the
proper judge, upon motion of the fiscal, may compel witnesses to be present
at the investigation of any crime or misdemeanor. But this power must be
exercised without prejudice to the constitutional rights of persons cited to
appear.
And the petitioner, in refusing to perform what the fiscal demanded, seeks
refuge in the constitutional provision contained in the Jones Law and
incorporated in General Orders, No. 58.
Therefore, the question raised is to be decided by examining whether the
constitutional provision invoked by the petitioner prohibits compulsion to
execute what is enjoined upon him by the order against which these
proceedings were taken.
Said provision is found in paragraph 3, section 3 of the Jones Law which (in
Spanish) reads: "Ni se le obligara a declarar en contra suya en ningun proceso
criminal" and has been incorporated in our Criminal Procedure (General
Orders, No. 58) in section 15 (No. 4 ) and section 56.
As to the extent of the privilege, it should be noted first of all, that the English
text of the Jones Law, which is the original one, reads as follows: "Nor shall
be compelled in any criminal case to be a witness against himself."
This text is not limited to declaracion but says "to be a witness." Moreover,
as we are concerned with a principle contained both in the Federal
constitution and in the constitutions of several states of the United States, but
expressed differently, we should take it that these various phrasings have a
common conception.
In the interpretation of the principle, nothing turns upon the variations of
wording in the constitutional clauses; this much is conceded (ante, par. 2252).
It is therefore immaterial that the witness is protected by one constitution
from 'testifying', or by another from 'furnishing evidence', or by another from
'giving evidence,' or by still another from 'being a witness.' These various
phrasings have a common conception, in respect to the form of the protected
disclosure. What is that conception? (4 Wigmore on Evidence, p. 863, 1923
ed.)
As to its scope, this privilege is not limited precisely to testimony, but extends
to all giving or furnishing of evidence.
The rights intended to be protected by the constitutional provision that no
man accused of crime shall be compelled to be a witness against himself is
so sacred, and the pressure toward their relaxation so great when the suspicion
of guilt is strong and the evidence obscure, that is the duty of courts liberally
to construe the prohibition in favor of personal rights, and to refuse to permit
any steps tending toward their invasion. Hence, there is the well-established
doctrine that the constitutional inhibition is directed not merely to giving of
100
oral testimony, but embraces as well the furnishing of evidence by other
means than by word of mouth, the divulging, in short, of any fact which the
accused has a right to hold secret. (28 R. C. L., paragraph 20, page 434 and
notes.) (Emphasis ours.)
The question, then, is reduced to a determination of whether the writing from
the fiscal's dictation by the petitioner for the purpose of comparing the latter's
handwriting and determining whether he wrote certain documents supposed
to be falsified, constitutes evidence against himself within the scope and
meaning of the constitutional provision under examination.
Whenever the defendant, at the trial of his case, testifying in his own behalf,
denies that a certain writing or signature is in his own hand, he may on cross-
examination be compelled to write in open court in order that the jury maybe
able to compare his handwriting with the one in question.
It was so held in the case of Bradford vs. People (43 Pacific Reporter, 1013)
inasmuch as the defendant, in offering himself as witness in his own behalf,
waived his personal privileges.
Of like character is the case of Sprouse vs. Com. (81 Va., 374,378), where
the judge asked the defendant to write his name during the hearing, and the
latter did so voluntarily.
But the cases so resolved cannot be compared to the one now before us. We
are not concerned here with the defendant, for it does not appear that any
information was filed against the petitioner for the supposed falsification, and
still less as it a question of the defendant on trial testifying and under cross-
examination. This is only an investigation prior to the information and with a
view to filing it. And let it further be noted that in the case of Sprouse vs.
Com., the defendant performed the act voluntarily.
We have also come upon a case wherein the handwriting or the form of
writing of the defendant was obtained before the criminal action was
instituted against him. We refer to the case of People vs. Molineux (61
Northeastern Reporter, 286).
Neither may it be applied to the instant case, because there, as in the aforesaid
case of Sprouse vs. Com., the defendant voluntarily offered to write, to
furnish a specimen of his handwriting.
We cite this case particularly because the court there gives prominence to the
defendant's right to decline to write, and to the fact that he voluntarily wrote.
The following appears in the body of said decision referred to (page 307 of
the volume cited):
The defendant had the legal right to refuse to write for Kinsley. He preferred
to accede to the latter's request, and we can discover no ground upon which
the writings thus produced can be excluded from the case. (Emphasis ours.)
For the reason it was held in the case of First National Bank vs. Robert (41
Mich., 709; 3 N. W., 199), that the defendant could not be compelled to write
his name, the doctrine being stated as follows:
The defendant being sworn in his own behalf denied the endorsement.
He was then cross-examined the question in regard to his having signed
papers not in the case, and was asked in particular whether he would not
produce signatures made prior to the note in suit, and whether he would not
write his name there in the court. The judge excluded all these inquiries, on
objection, and it is of these rulings that complaint is made. The object of the
questions was to bring into the case extrinsic signatures, for the purpose of
comparison by the jury, and we think that the judge was correct in ruling
against it.
It is true that the eminent Professor Wigmore, in his work cited (volume 4,
page 878), says:
Measuring or photographing the party is not within the privilege. Nor it is the
removal or replacement of his garments or shoes. Nor is the requirement that
the party move his body to enable the foregoing things to be done. Requiring
him to make specimens of handwriting is no more than requiring him to move
his body . . ." but he cites no case in support of his last assertion on specimens
of handwriting. We note that in the same paragraph 2265, where said authors
treats of "Bodily Exhibition." and under preposition "1. A great variety of
concrete illustrations have been ruled upon," he cites many cases, among
them that of People vs. Molineux (61 N. E., 286) which, as we have seen, has
no application to the case at bar because there the defendant voluntary gave
specimens of his handwriting, while here the petitioner refuses to do so and
101
has even instituted these prohibition proceedings that he may not be
compelled to do so.
Furthermore, in the case before us, writing is something more than moving
the body, or the hands, or the fingers; writing is not a purely mechanical act,
because it requires the application of intelligence and attention; and in the
case at bar writing means that the petitioner herein is to furnish a means to
determine whether or not he is the falsifier, as the petition of the respondent
fiscal clearly states. Except that it is more serious, we believe the present case
is similar to that of producing documents or chattels in one's possession. And
as to such production of documents or chattels. which to our mind is not so
serious as the case now before us, the same eminent Professor Wigmore, in
his work cited, says (volume 4, page 864):
. . . 2264. Production or Inspection of Documents and Chattels. — 1. It
follows that the production of documents or chattels by a person (whether
ordinary witness or party-witness) in response to a subpoena, or to a motion
to order production, or to other form of process treating him as a witness ( i.e.
as a person appearing before a tribunal to furnish testimony on his moral
responsibility for truthtelling), may be refused under the protection of the
privilege; and this is universally conceded. (And he cites the case of People
vs. Gardner, 144 N. Y., 119; 38 N.E., 1003)
We say that, for the purposes of the constitutional privilege, there is a
similarity between one who is compelled to produce a document, and one
who is compelled to furnish a specimen of his handwriting, for in both cases,
the witness is required to furnish evidence against himself.
And we say that the present case is more serious than that of compelling the
production of documents or chattels, because here the witness is compelled
to write and create, by means of the act of writing, evidence which does not
exist, and which may identify him as the falsifier. And for this reason the
same eminent author, Professor Wigmore, explaining the matter of the
production of documents and chattels, in the passage cited, adds:
For though the disclosure thus sought be not oral in form, and though the
documents or chattels be already in existence and not desired to be first
written and created by testimonial act or utterance of the person in response
to the process, still no line can be drawn short of any process which treats
him as a witness; because in virtue it would be at any time liable to make oath
to the identity or authenticity or origin of the articles produced. (Ibid., pp.
864-865.) (Emphasis ours.)
It cannot be contended in the present case that if permission to obtain a
specimen of the petitioner's handwriting is not granted, the crime would go
unpunished. Considering the circumstance that the petitioner is a municipal
treasurer, according to Exhibit A, it should not be a difficult matter for the
fiscal to obtained genuine specimens of his handwriting. But even supposing
it is impossible to obtain specimen or specimens without resorting to the
means complained herein, that is no reason for trampling upon a personal
right guaranteed by the constitution. It might be true that in some cases
criminals may succeed in evading the hand of justice, but such cases are
accidental and do not constitute the raison d' etre of the privilege. This
constitutional privilege exists for the protection of innocent persons.
With respect to the judgments rendered by this court and cited on behalf of
the respondents, it should be remembered that in the case of People vs.
Badilla (48 Phil., 718), it does not appear that the defendants and other
witnesses were questioned by the fiscal against their will, and if they did not
refuse to answer, they must be understood to have waived their constitutional
privilege, as they could certainly do.
The privilege not to give self-incriminating evidence, while absolute when
claimed, maybe waived by any one entitled to invoke it. (28 R. C. L.,
paragraph 29, page 442, and cases noted.)
The same holds good in the case of United States vs. Tan Teng (23 Phil.,
145), were the defendant did not oppose the extraction from his body of the
substance later used as evidence against him.
In the case of Villaflor vs. Summers (41 Phil., 62), it was plainly stated that
the court preferred to rest its decision on the reason of the case rather than on
blind adherence to tradition. The said reason of the case there consisted in
that it was the case of the examination of the body by physicians, which could
be and doubtless was interpreted by this court, as being no compulsion of the
petitioner therein to furnish evidence by means of testimonial act. In reality
she was not compelled to execute any positive act, much less a testimonial
act; she was only enjoined from something preventing the examination; all of
which is very different from what is required of the petitioner of the present
case, where it is sought to compel him to perform a positive, testimonial act,
102
to write and give a specimen of his handwriting for the purpose of
comparison. Besides, in the case of Villamor vs. Summers, it was sought to
exhibit something already in existence, while in the case at bar, the question
deals with something not yet in existence, and it is precisely sought to compel
the petitioner to make, prepare, or produce by this means, evidence not yet in
existence; in short, to create this evidence which may seriously incriminate
him.

Similar considerations suggest themselves to us with regard to the case of

United States vs. Ong Siu Hong (36 Phil., 735), wherein the defendant was
not compelled to perform any testimonial act, but to take out of his mouth the
morphine he had there. It was not compelling him to testify or to be a witness
or to furnish, much less make, prepare, or create through a testimonial act,
evidence for his own condemnation.

Wherefore, we find the present action well taken, and it is ordered that the
respondents and those under their orders desist and abstain absolutely and
forever from compelling the petitioner to take down dictation in his
handwriting for the purpose of submitting the latter for comparison.

Without express pronouncement as to costs. So ordered.

103
[G.R. No. 162571. June 15, 2005]
ARNEL L. AGUSTIN, petitioner, vs. HON. COURT OF APPEALS AND
MINOR MARTIN JOSE PROLLAMANTE, REPRESENTED BY HIS
MOTHER/GUARDIAN FE ANGELA PROLLAMANTE, respondents.
DECISION
CORONA, J.:
At issue in this petition for certiorari [1] is whether or not the Court of
Appeals (CA) gravely erred in exercising its discretion, amounting to lack or
excess of jurisdiction, in issuing a decision[2] and resolution[3] upholding
the resolution and order of the trial court,[4] which denied petitioners motion
to dismiss private respondents complaint for support and directed the parties
to submit themselves to deoxyribonucleic acid (DNA) paternity testing.
Respondents Fe Angela and her son Martin Prollamante sued Martins alleged
biological father, petitioner Arnel L. Agustin, for support and support
pendente lite before the Regional Trial Court (RTC) of Quezon City, Branch
106.[5]
In their complaint, respondents alleged that Arnel courted Fe in 1992, after
which they entered into an intimate relationship. Arnel supposedly
impregnated Fe on her 34th birthday on November 10, 1999. Despite Arnels
insistence on abortion, Fe decided otherwise and gave birth to their child out
of wedlock, Martin, on August 11, 2000 at the Capitol Medical Hospital in
Quezon City. The babys birth certificate was purportedly signed by Arnel as
the father. Arnel shouldered the pre-natal and hospital expenses but later
refused Fes repeated requests for Martins support despite his adequate
financial capacity and even suggested to have the child committed for
adoption. Arnel also denied having fathered the child.
On January 19, 2001, while Fe was carrying five-month old Martin at the
Capitol Hills Golf and Country Club parking lot, Arnel sped off in his van,
with the open car door hitting Fes leg. This incident was reported to the
police. In July 2001, Fe was diagnosed with leukemia and has, since then,
been undergoing chemotherapy. On March 5, 2002, Fe and Martin sued Arnel
for support.[6]
In his amended answer, Arnel denied having sired Martin because his affair
and intimacy with Fe had allegedly ended in 1998, long before Martins
conception. He claimed that Fe had at least one other secret lover. Arnel
admitted that their relationship started in 1993 but he never really fell in love
with (Fe) not only because (she) had at least one secret lover, a certain Jun,
but also because she proved to be scheming and overly demanding and
possessive. As a result, theirs was a stormy on-and-off affair. What started as
a romantic liaison between two consenting adults eventually turned out to be
a case of fatal attraction where (Fe) became so obsessed with (Arnel), to the
point of even entertaining the idea of marrying him, that she resorted to
various devious ways and means to alienate (him) from his wife and family.
Unable to bear the prospect of losing his wife and children, Arnel terminated
the affair although he still treated her as a friend such as by referring potential
customers to the car aircon repair shop[7] where she worked. Later on, Arnel
found out that Fe had another erstwhile secret lover. In May 2000, Arnel and
his entire family went to the United States for a vacation. Upon their return
in June 2000, Arnel learned that Fe was telling people that he had
impregnated her. Arnel refused to acknowledge the child as his because their
last intimacy was sometime in 1998.[8] Exasperated, Fe started calling Arnels
wife and family. On January 19, 2001, Fe followed Arnel to the Capitol Hills
Golf and Country Club parking lot to demand that he acknowledge Martin as
his child. According to Arnel, he could not get through Fe and the discussion
became so heated that he had no alternative but to move on but without
bumping or hitting any part of her body.[9] Finally, Arnel claimed that the
signature and the community tax certificate (CTC) attributed to him in the
acknowledgment of Martins birth certificate were falsified. The CTC
erroneously reflected his marital status as single when he was actually
married and that his birth year was 1965 when it should have been 1964.[10]
In his pre-trial brief filed on May 17, 2002, Arnel vehemently denied having
sired Martin but expressed willingness to consider any proposal to settle the
case.[11]
On July 23, 2002, Fe and Martin moved for the issuance of an order directing
all the parties to submit themselves to DNA paternity testing pursuant to Rule
28 of the Rules of Court.[12]
Arnel opposed said motion by invoking his constitutional right against self-
incrimination.[13] He also moved to dismiss the complaint for lack of cause
of action, considering that his signature on the birth certificate was a forgery
104
and that, under the law, an illegitimate child is not entitled to support if not
recognized by the putative father.[14] In his motion, Arnel manifested that he
had filed criminal charges for falsification of documents against Fe (I.S. Nos.
02-5723 and 02-7192) and a petition for cancellation of his name appearing
in Martins birth certificate (docketed as Civil Case No. Q-02-46669). He
attached the certification of the Philippine National Police Crime Laboratory
that his signature in the birth certificate was forged.
The trial court denied the motion to dismiss the complaint and ordered the
parties to submit themselves to DNA paternity testing at the expense of the
applicants. The Court of Appeals affirmed the trial court.
Thus, this petition.
In a nutshell, petitioner raises two issues: (1) whether a complaint for support
can be converted to a petition for recognition and (2) whether DNA paternity
testing can be ordered in a proceeding for support without violating
petitioners constitutional right to privacy and right against self-
incrimination.[15]
The petition is without merit.
First of all, the trial court properly denied the petitioners motion to dismiss
because the private respondents complaint on its face showed that they had a
cause of action against the petitioner. The elements of a cause of action are:
(1) the plaintiffs primary right and the defendants corresponding primary
duty, and (2) the delict or wrongful act or omission of the defendant, by which
the primary right and duty have been violated. The cause of action is
determined not by the prayer of the complaint but by the facts alleged.[16]
In the complaint, private respondents alleged that Fe had amorous relations
with the petitioner, as a result of which she gave birth to Martin out of
wedlock. In his answer, petitioner admitted that he had sexual relations with
Fe but denied that he fathered Martin, claiming that he had ended the
relationship long before the childs conception and birth. It is undisputed and
even admitted by the parties that there existed a sexual relationship between
Arnel and Fe. The only remaining question is whether such sexual
relationship produced the child, Martin. If it did, as respondents have alleged,
then Martin should be supported by his father Arnel. If not, petitioner and
Martin are strangers to each other and Martin has no right to demand and
petitioner has no obligation to give support.
Preliminaries aside, we now tackle the main issues.
Petitioner refuses to recognize Martin as his own child and denies the
genuineness and authenticity of the childs birth certificate which he
purportedly signed as the father. He also claims that the order and resolution
of the trial court, as affirmed by the Court of Appeals, effectively converted
the complaint for support to a petition for recognition, which is supposedly
proscribed by law. According to petitioner, Martin, as an unrecognized child,
has no right to ask for support and must first establish his filiation in a
separate suit under Article 283[17] in relation to Article 265[18] of the Civil
Code and Section 1, Rule 105[19] of the Rules of Court.
The petitioners contentions are without merit.
The assailed resolution and order did not convert the action for support into
one for recognition but merely allowed the respondents to prove their cause
of action against petitioner who had been denying the authenticity of the
documentary evidence of acknowledgement. But even if the assailed
resolution and order effectively integrated an action to compel recognition
with an action for support, such was valid and in accordance with
jurisprudence. In Tayag v. Court of Appeals,[20] we allowed the integration
of an action to compel recognition with an action to claim ones inheritance:
In Paulino, we held that an illegitimate child, to be entitled to support and
successional rights from the putative or presumed parent, must prove his
filiation to the latter. We also said that it is necessary to allege in the
complaint that the putative father had acknowledged and recognized the
illegitimate child because such acknowledgment is essential to and is the
basis of the right to inherit. There being no allegation of such
acknowledgment, the action becomes one to compel recognition which
cannot be brought after the death of the putative father. The ratio decidendi
in Paulino, therefore, is not the absence of a cause of action for failure of the
petitioner to allege the fact of acknowledgment in the complaint, but the
prescription of the action.
Applying the foregoing principles to the case at bar, although petitioner
contends that the complaint filed by herein private respondent merely alleges
105
that the minor Chad Cuyugan is an illegitimate child of the deceased and is
actually a claim for inheritance, from the allegations therein the same may be
considered as one to compel recognition. Further, that the two causes of
action, one to compel recognition and the other to claim inheritance, may be
joined in one complaint is not new in our jurisprudence.
As early as [1922] we had occasion to rule thereon in Briz vs. Briz, et al. (43
Phil. 763 [1922]) wherein we said:
The question whether a person in the position of the present plaintiff can in
any event maintain a complex action to compel recognition as a natural child
and at the same time to obtain ulterior relief in the character of heir, is one
which in the opinion of this court must be answered in the affirmative,
provided always that the conditions justifying the joinder of the two distinct
causes of action are present in the particular case. In other words, there is no
absolute necessity requiring that the action to compel acknowledgment
should have been instituted and prosecuted to a successful conclusion prior
to the action in which that same plaintiff seeks additional relief in the
character of heir. Certainly, there is nothing so peculiar to the action to
compel acknowledgment as to require that a rule should be here applied
different from that generally applicable in other cases. x x x
The conclusion above stated, though not heretofore explicitly formulated by
this court, is undoubtedly to some extent supported by our prior decisions.
Thus, we have held in numerous cases, and the doctrine must be considered
well settled, that a natural child having a right to compel acknowledgment,
but who has not been in fact legally acknowledged, may maintain partition
proceedings for the division of the inheritance against his coheirs x x x; and
the same person may intervene in proceedings for the distribution of the estate
of his deceased natural father, or mother x x x. In neither of these situations
has it been thought necessary for the plaintiff to show a prior decree
compelling acknowledgment. The obvious reason is that in partition suits and
distribution proceedings the other persons who might take by inheritance are
before the court; and the declaration of heirship is appropriate to such
proceedings. (Underscoring supplied)
Although the instant case deals with support rather than inheritance, as in
Tayag, the basis or rationale for integrating them remains the same. Whether
or not respondent Martin is entitled to support depends completely on the
determination of filiation. A separate action will only result in a multiplicity
of suits, given how intimately related the main issues in both cases are. To
paraphrase Tayag, the declaration of filiation is entirely appropriate to these
proceedings.
On the second issue, petitioner posits that DNA is not recognized by this
Court as a conclusive means of proving paternity. He also contends that
compulsory testing violates his right to privacy and right against self-
incrimination as guaranteed under the 1987 Constitution. These contentions
have no merit.
Given that this is the very first time that the admissibility of DNA testing as
a means for determining paternity has actually been the focal issue in a
controversy, a brief historical sketch of our past decisions featuring or
mentioning DNA testing is called for.
In the 1995 case of People v. Teehankee[21] where the appellant was
convicted of murder on the testimony of three eyewitnesses, we stated as an
obiter dictum that while eyewitness identification is significant, it is not as
accurate and authoritative as the scientific forms of identification evidence
such as the fingerprint or the DNA test result (emphasis supplied).
Our faith in DNA testing, however, was not quite so steadfast in the previous
decade. In Pe Lim v. Court of Appeals,[22] promulgated in 1997, we
cautioned against the use of DNA because DNA, being a relatively new
science, (had) not as yet been accorded official recognition by our courts.
Paternity (would) still have to be resolved by such conventional evidence as
the relevant incriminating acts, verbal and written, by the putative father.
In 2001, however, we opened the possibility of admitting DNA as evidence
of parentage, as enunciated in Tijing v. Court of Appeals:[23]
A final note. Parentage will still be resolved using conventional methods
unless we adopt the modern and scientific ways available. Fortunately, we
have now the facility and expertise in using DNA test for identification and
parentage testing. The University of the Philippines Natural Science Research
Institute (UP-NSRI) DNA Analysis Laboratory has now the capability to
conduct DNA typing using short tandem repeat (STR) analysis. The analysis
is based on the fact that the DNA of a child/person has two (2) copies, one
copy from the mother and the other from the father. The DNA from the
mother, the alleged father and child are analyzed to establish parentage. Of
106
course, being a novel scientific technique, the use of DNA test as evidence is
still open to challenge. Eventually, as the appropriate case comes, courts
should not hesitate to rule on the admissibility of DNA evidence. For it was
said, that courts should apply the results of science when competently
obtained in aid of situations presented, since to reject said result is to deny
progress.
The first real breakthrough of DNA as admissible and authoritative evidence
in Philippine jurisprudence came in 2002 with our en banc decision in People
v. Vallejo[24] where the rape and murder victims DNA samples from the
bloodstained clothes of the accused were admitted in evidence. We reasoned
that the purpose of DNA testing (was) to ascertain whether an association
exist(ed) between the evidence sample and the reference sample. The samples
collected (were) subjected to various chemical processes to establish their
profile.
A year later, in People v. Janson,[25] we acquitted the accused charged with
rape for lack of evidence because doubts persist(ed) in our mind as to who
(were) the real malefactors. Yes, a complex offense (had) been perpetrated
but who (were) the perpetrators? How we wish we had DNA or other
scientific evidence to still our doubts!
In 2004, in Tecson, et al. v. COMELEC[26] where the Court en banc was
faced with the issue of filiation of then presidential candidate Fernando Poe
Jr., we stated:
In case proof of filiation or paternity would be unlikely to satisfactorily
establish or would be difficult to obtain, DNA testing, which examines
genetic codes obtained from body cells of the illegitimate child and any
physical residue of the long dead parent could be resorted to. A positive match
would clear up filiation or paternity. In Tijing vs. Court of Appeals, this Court
has acknowledged the strong weight of DNA testing
Moreover, in our en banc decision in People v. Yatar,[27] we affirmed the
conviction of the accused for rape with homicide, the principal evidence for
which included DNA test results. We did a lengthy discussion of DNA, the
process of DNA testing and the reasons for its admissibility in the context of
our own Rules of Evidence:
Deoxyribonucleic Acid, or DNA, is a molecule that encodes the genetic
information in all living organisms. A persons DNA is the same in each cell
and it does not change throughout a persons lifetime; the DNA in a persons
blood is the same as the DNA found in his saliva, sweat, bone, the root and
shaft of hair, earwax, mucus, urine, skin tissue, and vaginal and rectal cells.
Most importantly, because of polymorphisms in human genetic structure, no
two individuals have the same DNA, with the notable exception of identical
twins.
xxx xxx xxx
In assessing the probative value of DNA evidence, courts should consider,
inter alia, the following factors: how the samples were collected, how they
were handled, the possibility of contamination of the samples, the procedure
followed in analyzing the samples, whether proper standards and procedures
were followed in conducting the tests, and the qualification of the analyst who
conducted the tests.
In the case at bar, Dr. Maria Corazon Abogado de Ungria was duly qualified
by the prosecution as an expert witness on DNA print or identification
techniques. Based on Dr. de Ungrias testimony, it was determined that the
gene type and DNA profile of appellant are identical to that of the extracts
subject of examination. The blood sample taken from the appellant showed
that he was of the following gene types: vWA 15/19, TH01 7/8, DHFRP29/10
and CSF1PO 10/11, which are identical with semen taken from the victims
vaginal canal. Verily, a DNA match exists between the semen found in the
victim and the blood sample given by the appellant in open court during the
course of the trial.
Admittedly, we are just beginning to integrate these advances in science and
technology in the Philippine criminal justice system, so we must be cautious
as we traverse these relatively uncharted waters. Fortunately, we can benefit
from the wealth of persuasive jurisprudence that has developed in other
jurisdictions. Specifically, the prevailing doctrine in the U.S. has proven
instructive.
In Daubert v. Merrell Dow (509 U.S. 579 (1993); 125 L. Ed. 2d 469) it was
ruled that pertinent evidence based on scientifically valid principles could be
used as long as it was relevant and reliable. Judges, under Daubert, were
allowed greater discretion over which testimony they would allow at trial,
107
including the introduction of new kinds of scientific techniques. DNA typing
is one such novel procedure.
Under Philippine law, evidence is relevant when it relates directly to a fact in
issue as to induce belief in its existence or non-existence. Applying the
Daubert test to the case at bar, the DNA evidence obtained through PCR
testing and utilizing STR analysis, and which was appreciated by the court a
quo is relevant and reliable since it is reasonably based on scientifically valid
principles of human genetics and molecular biology.
Significantly, we upheld the constitutionality of compulsory DNA testing and
the admissibility of the results thereof as evidence. In that case, DNA samples
from semen recovered from a rape victims vagina were used to positively
identify the accused Joel Kawit Yatar as the rapist. Yatar claimed that the
compulsory extraction of his blood sample for DNA testing, as well as the
testing itself, violated his right against self-incrimination, as embodied in
both Sections 12 and 17 of Article III of the Constitution. We addressed this
as follows:
The contention is untenable. The kernel of the right is not against all
compulsion, but against testimonial compulsion. The right against self-
incrimination is simply against the legal process of extracting from the lips
of the accused an admission of guilt. It does not apply where the evidence
sought to be excluded is not an incrimination but as part of object evidence.
Over the years, we have expressly excluded several kinds of object evidence
taken from the person of the accused from the realm of self-incrimination.
These include photographs,[28] hair,[29] and other bodily substances.[30]
We have also declared as constitutional several procedures performed on the
accused such as pregnancy tests for women accused of adultery,[31]
expulsion of morphine from ones mouth[32] and the tracing of ones foot to
determine its identity with bloody footprints.[33] In Jimenez v. Caizares,[34]
we even authorized the examination of a womans genitalia, in an action for
annulment filed by her husband, to verify his claim that she was impotent,
her orifice being too small for his penis. Some of these procedures were, to
be sure, rather invasive and involuntary, but all of them were constitutionally
sound. DNA testing and its results, per our ruling in Yatar,[35] are now
similarly acceptable.
Nor does petitioners invocation of his right to privacy persuade us. In Ople v.
Torres,[36] where we struck down the proposed national computerized
identification system embodied in Administrative Order No. 308, we said:
In no uncertain terms, we also underscore that the right to privacy does not
bar all incursions into individual privacy. The right is not intended to stifle
scientific and technological advancements that enhance public service and
the common good... Intrusions into the right must be accompanied by proper
safeguards that enhance public service and the common good.
Historically, it has mostly been in the areas of legality of searches and
seizures,[37] and the infringement of privacy of communication[38] where
the constitutional right to privacy has been critically at issue. Petitioners case
involves neither and, as already stated, his argument that his right against self-
incrimination is in jeopardy holds no water. His hollow invocation of his
constitutional rights elicits no sympathy here for the simple reason that they
are not in any way being violated. If, in a criminal case, an accused whose
very life is at stake can be compelled to submit to DNA testing, we see no
reason why, in this civil case, petitioner herein who does not face such dire
consequences cannot be ordered to do the same.
DNA paternity testing first came to prominence in the United States, where
it yielded its first official results sometime in 1985. In the decade that
followed, DNA rapidly found widespread general acceptance.[39] Several
cases decided by various State Supreme Courts reflect the total assimilation
of DNA testing into their rules of procedure and evidence.
The case of Wilson v. Lumb[40] shows that DNA testing is so commonly
accepted that, in some instances, ordering the procedure has become a
ministerial act. The Supreme Court of St. Lawrence County, New York
allowed a party who had already acknowledged paternity to subsequently
challenge his prior acknowledgment. The Court pointed out that, under the
law, specifically Section 516 of the New York Family Court Act, the Family
Court examiner had the duty, upon receipt of the challenge, to order DNA
tests:[41]
516-a. Acknowledgment of paternity. (a) An acknowledgment of paternity
executed pursuant to section one hundred eleven-k of the social services law
or section four thousand one hundred thirty-five-b of the public health law
shall establish the paternity of and liability for the support of a child pursuant
108
to this act. Such acknowledgment must be reduced to writing and filed
pursuant to section four thousand one hundred thirty-five-b of the public
health law with the registrar of the district in which the birth occurred and in
which the birth certificate has been filed. No further judicial or administrative
proceedings are required to ratify an unchallenged acknowledgment of
paternity.
(b) An acknowledgment of paternity executed pursuant to section one
hundred eleven-k of the social services law or section four thousand one
hundred thirty-five-b of the public health law may be rescinded by either
signators filing of a petition with the court to vacate the acknowledgment
within the earlier of sixty days of the date of signing the acknowledgment or
the date of an administrative or a judicial proceeding (including a proceeding
to establish a support order) relating to the child in which either signator is a
party. For purposes of this section, the "date of an administrative or a judicial
proceeding" shall be the date by which the respondent is required to answer
the petition. After the expiration of sixty days of the execution of the
acknowledgment, either signator may challenge the acknowledgment of
paternity in court only on the basis of fraud, duress, or material mistake of
fact, with the burden of proof on the party challenging the voluntary
acknowledgment. Upon receiving a partys challenge to an acknowledgment,
the court shall order genetic marker tests or DNA tests for the determination
of the childs paternity and shall make a finding of paternity, if appropriate, in
accordance with this article. Neither signators legal obligations, including the
obligation for child support arising from the acknowledgment, may be
suspended during the challenge to the acknowledgment except for good cause
as the court may find. If a party petitions to rescind an acknowledgment and
if the court determines that the alleged father is not the father of the child, or
if the court finds that an acknowledgment is invalid because it was executed
on the basis of fraud, duress, or material mistake of fact, the court shall vacate
the acknowledgment of paternity and shall immediately provide a copy of the
order to the registrar of the district in which the childs birth certificate is filed
and also to the putative father registry operated by the department of social
services pursuant to section three hundred seventy-two-c of the social
services law. In addition, if the mother of the child who is the subject of the
acknowledgment is in receipt of child support services pursuant to title six-A
of article three of the social services law, the court shall immediately provide
a copy of the order to the child support enforcement unit of the social services
district that provides the mother with such services.
(c) A determination of paternity made by any other state, whether established
through the parents acknowledgment of paternity or through an
administrative or judicial process, must be accorded full faith and credit, if
and only if such acknowledgment meets the requirements set forth in section
452(a)(7) of the social security act.
(emphasis supplied)
DNA testing also appears elsewhere in the New York Family Court Act:[42]
532. Genetic marker and DNA tests; admissibility of records or reports of test
results; costs of tests.
a) The court shall advise the parties of their right to one or more genetic
marker tests or DNA tests and, on the courts own motion or the motion of any
party, shall order the mother, her child and the alleged father to submit to one
or more genetic marker or DNA tests of a type generally acknowledged as
reliable by an accreditation body designated by the secretary of the federal
department of health and human services and performed by a laboratory
approved by such an accreditation body and by the commissioner of health
or by a duly qualified physician to aid in the determination of whether the
alleged father is or is not the father of the child. No such test shall be ordered,
however, upon a written finding by the court that it is not in the best interests
of the child on the basis of res judicata, equitable estoppel, or the presumption
of legitimacy of a child born to a married woman. The record or report of the
results of any such genetic marker or DNA test ordered pursuant to this
section or pursuant to section one hundred eleven-k of the social services law
shall be received in evidence by the court pursuant to subdivision (e) of rule
forty-five hundred eighteen of the civil practice law and rules where no timely
objection in writing has been made thereto and that if such timely objections
are not made, they shall be deemed waived and shall not be heard by the court.
If the record or report of the results of any such genetic marker or DNA test
or tests indicate at least a ninety-five percent probability of paternity, the
admission of such record or report shall create a rebuttable presumption of
paternity, and shall establish, if unrebutted, the paternity of and liability for
the support of a child pursuant to this article and article four of this act.
(b) Whenever the court directs a genetic marker or DNA test pursuant to this
section, a report made as provided in subdivision (a) of this section may be
109
received in evidence pursuant to rule forty-five hundred eighteen of the civil
practice law and rules if offered by any party.
(c) The cost of any test ordered pursuant to subdivision (a) of this section
shall be, in the first instance, paid by the moving party. If the moving party is
financially unable to pay such cost, the court may direct any qualified public
health officer to conduct such test, if practicable; otherwise, the court may
direct payment from the funds of the appropriate local social services district.
In its order of disposition, however, the court may direct that the cost of any
such test be apportioned between the parties according to their respective
abilities to pay or be assessed against the party who does not prevail on the
issue of paternity, unless such party is financially unable to pay. (emphasis
supplied)
In R.E. v. C.E.W.,[43] a decision of the Mississippi Supreme Court, DNA
tests were used to prove that H.W., previously thought to be an offspring of
the marriage between A.C.W. and C.E.W., was actually the child of R.E. with
whom C.E.W. had, at the time of conception, maintained an adulterous
relationship.
In Erie County Department of Social Services on behalf of Tiffany M.H. v.
Greg G.,[44] the 4th Department of the New York Supreme Courts Appellate
Division allowed G.G., who had been adjudicated as T.M.H.s father by
default, to have the said judgment vacated, even after six years, once he had
shown through a genetic marker test that he was not the childs father. In this
case, G.G. only requested the tests after the Department of Social Services,
six years after G.G. had been adjudicated as T.M.H.s father, sought an
increase in his support obligation to her.
In Greco v. Coleman,[45] the Michigan Supreme Court while ruling on the
constitutionality of a provision of law allowing non-modifiable support
agreements pointed out that it was because of the difficulty of determining
paternity before the advent of DNA testing that such support agreements were
necessary:
As a result of DNA testing, the accuracy with which paternity can be proven
has increased significantly since the parties in this lawsuit entered into their
support agreement(current testing methods can determine the probability of
paternity to 99.999999% accuracy). However, at the time the parties before
us entered into the disputed agreement, proving paternity was a very
significant obstacle to an illegitimate child's access to child support. The first
reported results of modern DNA paternity testing did not occur until 1985.
("In fact, since its first reported results in 1985, DNA matching has
progressed to 'general acceptance in less than a decade'"). Of course, while
prior blood-testing methods could exclude some males from being the
possible father of a child, those methods could not affirmatively pinpoint a
particular male as being the father. Thus, when the settlement agreement
between the present parties was entered in 1980, establishing paternity was a
far more difficult ordeal than at present. Contested paternity actions at that
time were often no more than credibility contests. Consequently, in every
contested paternity action, obtaining child support depended not merely on
whether the putative father was, in fact, the child's biological father, but rather
on whether the mother could prove to a court of law that she was only
sexually involved with one man--the putative father. Allowing parties the
option of entering into private agreements in lieu of proving paternity
eliminated the risk that the mother would be unable meet her burden of proof.
It is worth noting that amendments to Michigans Paternity law have included
the use of DNA testing:[46]
722.716 Pretrial proceedings; blood or tissue typing determinations as to
mother, child, and alleged father; court order; refusal to submit to typing or
identification profiling; qualifications of person conducting typing or
identification profiling; compensation of expert; result of typing or
identification profiling; filing summary report; objection; admissibility;
presumption; burden of proof; summary disposition.
Sec. 6.
(1) In a proceeding under this act before trial, the court, upon application
made by or on behalf of either party, or on its own motion, shall order that
the mother, child, and alleged father submit to blood or tissue typing
determinations, which may include, but are not limited to, determinations of
red cell antigens, red cell isoenzymes, human leukocyte antigens, serum
proteins, or DNA identification profiling, to determine whether the alleged
father is likely to be, or is not, the father of the child. If the court orders a
blood or tissue typing or DNA identification profiling to be conducted and a
party refuses to submit to the typing or DNA identification profiling, in
addition to any other remedies available, the court may do either of the
following:
110

(a) Enter a default judgment at the request of the appropriate party.
(b) If a trial is held, allow the disclosure of the fact of the refusal unless good
cause is shown for not disclosing the fact of refusal.
(2) A blood or tissue typing or DNA identification profiling shall be
conducted by a person accredited for paternity determinations by a nationally
recognized scientific organization, including, but not limited to, the American
association of blood banks.
xxx xxx xxx
(5) If the probability of paternity determined by the qualified person
described in subsection (2) conducting the blood or tissue typing or DNA
identification profiling is 99% or higher, and the DNA identification profile
and summary report are admissible as provided in subsection (4), paternity is
presumed. If the results of the analysis of genetic testing material from 2 or
more persons indicate a probability of paternity greater than 99%, the
contracting laboratory shall conduct additional genetic paternity testing until
all but 1 of the putative fathers is eliminated, unless the dispute involves 2 or
more putative fathers who have identical DNA.
(6) Upon the establishment of the presumption of paternity as provided in
subsection (5), either party may move for summary disposition under the
court rules. this section does not abrogate the right of either party to child
support from the date of birth of the child if applicable under section 7.
(emphasis supplied)
In Rafferty v. Perkins,[47] the Supreme Court of Mississippi ruled that DNA
test results showing paternity were sufficient to overthrow the presumption
of legitimacy of a child born during the course of a marriage:
The presumption of legitimacy having been rebutted by the results of the
blood test eliminating Perkins as Justin's father, even considering the
evidence in the light most favorable to Perkins, we find that no reasonable
jury could find that Easter is not Justin's father based upon the 99.94%
probability of paternity concluded by the DNA testing.
In S.J.F. and J.C.F. v. R.C.W.,[48] the North Dakota Supreme Court upheld
an order for genetic testing given by the Court of Appeals, even after trial on
the merits had concluded without such order being given. Significantly, when
J.C.F., the mother, first filed the case for paternity and support with the
District Court, neither party requested genetic testing. It was only upon appeal
from dismissal of the case that the appellate court remanded the case and
ordered the testing, which the North Dakota Supreme Court upheld.
The case of Kohl v. Amundson,[49] decided by the Supreme Court of South
Dakota, demonstrated that even default judgments of paternity could be
vacated after the adjudicated father had, through DNA testing, established
non-paternity. In this case, Kohl, having excluded himself as the father of
Amundsons child through DNA testing, was able to have the default
judgment against him vacated. He then obtained a ruling ordering Amundson
to reimburse him for the amounts withheld from his wages for child support.
The Court said (w)hile Amundson may have a remedy against the father of
the child, she submit(ted) no authority that require(d) Kohl to support her
child. Contrary to Amundson's position, the fact that a default judgment was
entered, but subsequently vacated, (did) not foreclose Kohl from obtaining a
money judgment for the amount withheld from his wages.
In M.A.S. v. Mississippi Dept. of Human Services,[50] another case decided
by the Supreme Court of Mississippi, it was held that even if paternity was
established through an earlier agreed order of filiation, child support and
visitation orders could still be vacated once DNA testing established someone
other than the named individual to be the biological father. The Mississippi
High Court reiterated this doctrine in Williams v. Williams.[51]
The foregoing considered, we find no grave abuse of discretion on the part of
the public respondent for upholding the orders of the trial court which both
denied the petitioners motion to dismiss and ordered him to submit himself
for DNA testing. Under Rule 65 of the 1997 Rules of Civil Procedure, the
remedy of certiorari is only available when any tribunal, board or officer has
acted without or in excess of its or his jurisdiction, or with grave abuse of
discretion amounting to lack or excess of jurisdiction, and there is no appeal,
nor any plain, speedy and adequate remedy in the ordinary course of law.[52]
In Land Bank of the Philippines v. the Court of Appeals[53] where we
dismissed a special civil action for certiorari under Rule 65, we discussed at
length the nature of such a petition and just what was meant by grave abuse
of discretion:
111
 abandoned progeny. We have long believed in the merits of DNA testing and
Grave abuse of discretion implies such capricious and whimsical exercise of have repeatedly expressed as much in the past. This case comes at a perfect
judgment as is equivalent to lack of jurisdiction or, in other words, where the time when DNA testing has finally evolved into a dependable and
power is exercised in an arbitrary manner by reason of passion, prejudice, or authoritative form of evidence gathering. We therefore take this opportunity
personal hostility, and it must be so patent or gross as to amount to an evasion to forcefully reiterate our stand that DNA testing is a valid means of
of a positive duty or to a virtual refusal to perform the duty enjoined or to act determining paternity.
at all in contemplation of law.
WHEREFORE, in view of the foregoing, the petition is hereby DENIED. The
The special civil action for certiorari is a remedy designed for the correction Court of Appeals decision dated January 28, 2004 in CA-G.R. SP No. 80961
of errors of jurisdiction and not errors of judgment. The raison detre for the is hereby AFFIRMED in toto.
rule is when a court exercises its jurisdiction, an error committed while so
engaged does not deprive it of the jurisdiction being exercised when the error Costs against petitioner.
is committed. If it did, every error committed by a court would deprive it of
its jurisdiction and every erroneous judgment would be a void judgment. In
such a scenario, the administration of justice would not survive. Hence, where
the issue or question involved affects the wisdom or legal soundness of the
decisionnot the jurisdiction of the court to render said decisionthe same is
beyond the province of a special civil action for certiorari.

The proper recourse of the aggrieved party from a decision of the CA is a

petition for review on certiorari under Rule 45 of the Revised Rules of Court.
On the other hand, if the error subject of the recourse is one of jurisdiction,
or the act complained of was perpetrated by a quasi-judicial officer or agency
with grave abuse of discretion amounting to lack or excess of jurisdiction, the
proper remedy available to the aggrieved party is a petition for certiorari
under Rule 65 of the said Rules. (emphasis supplied)

In the instant case, the petitioner has in no way shown any arbitrariness,
passion, prejudice or personal hostility that would amount to grave abuse of
discretion on the part of the Court of Appeals. The respondent court acted
entirely within its jurisdiction in promulgating its decision and resolution, and
any error made would have only been an error in judgment. As we have
discussed, however, the decision of the respondent court, being firmly
anchored in law and jurisprudence, was correct.

Epilogue

For too long, illegitimate children have been marginalized by fathers who
choose to deny their existence. The growing sophistication of DNA testing
technology finally provides a much needed equalizer for such ostracized and

112
G.R. No. L-29169 August 19, 1968
ROGER CHAVEZ, petitioner,
vs.
THE HONORABLE COURT OF APPEALS, THE PEOPLE OF THE
PHILIPPINES and THE WARDEN OF THE CITY JAIL OF MANILA,
respondents.
Estanislao E. Fernandez and Fausto Arce for petitioner.
Office of the Solicitor General for respondents.
SANCHEZ, J.:
The thrust of petitioner's case presented in his original and supplementary
petitions invoking jurisdiction of this Court is that he is entitled, on habeas
corpus, to be freed from imprisonment upon the ground that in the trial which
resulted in his conviction1 he was denied his constitutional right not to be
compelled to testify against himself. There is his prayer, too, that, should he
fail in this, he be granted the alternative remedies of certiorari to strike down
the two resolutions of the Court of Appeals dismissing his appeal for failure
to file brief, and of mandamus to direct the said court to forward his appeal
to this Court for the reason that he was raising purely questions of law.
The indictment in the court below — the third amended information — upon
which the judgment of conviction herein challenged was rendered, was for
qualified theft of a motor vehicle, one (1) Thunderbird car, Motor No. H9YH-
143003, with Plate No. H-16648 Pasay City '62 together with its accessories
worth P22,200.00. Accused were the following: Petitioner herein, Roger
Chavez, Ricardo Sumilang alias "Romeo Vasquez", Edgardo P. Pascual alias
"Ging" Pascual, Pedro Rebullo alias "Pita", Luis Asistio alias "Baby" Asistio,
Lorenzo Meneses alias "Lory" Meneses, Peter Doe, Charlie Doe and Paul
Doe.2
Averred in the aforesaid information was that on or about the 14th day of
November, 1962, in Quezon City, the accused conspired, with intent of gain,
abuse of confidence and without the consent of the owner thereof, Dy Sun
Hiok y Lim, in asporting the motor vehicle above-described.
Upon arraignment, all the accused, except the three Does who have not been
identified nor apprehended, pleaded not guilty.1äwphï1.ñët
On July 23, 1963, trial commenced before the judge presiding Branch IX of
the Court of First Instance of Rizal in Quezon City.
The trial opened with the following dialogue, which for the great bearing it
has on this case, is here reproduced:.
COURT:
The parties may proceed.
FISCAL GRECIA:
Our first witness is Roger Chavez [one of the accused].
ATTY. CARBON [Counsel for petitioner Chavez]:
I am quite taken by surprise, as counsel for the accused Roger Chavez, with
this move of the Fiscal in presenting him as his witness. I object.
COURT:
On what ground, counsel? .
ATTY. CARBON:
On the ground that I have to confer with my client. It is really surprising that
at this stage, without my being notified by the Fiscal, my client is being
presented as witness for the prosecution. I want to say in passing that
it is only at this very moment that I come to know about this strategy of the
prosecution.
COURT (To the Fiscal):
You are not withdrawing the information against the accused Roger Chavez
by making [him a] state witness?.
FISCAL GRECIA:
I am not making him as state witness, Your Honor.
113
I am only presenting him as an ordinary witness.
ATTY. CARBON:
As a matter of right, because it will incriminate my client, I object.
the court feels that the answer of this witness to the question would
incriminate him.
Counsel has all the assurance that the court will not require the witness to
answer questions which would incriminate him.

COURT: But surely, counsel could not object to have the accused called on the
witnessstand.
The Court will give counsel for Roger Chavez fifteen minutes within which
to confer and explain to his client about the giving of his testimony. ATTY. CARBON:

xxx xxx xxx I submit.

COURT: [after the recess] xxx xxx xxx

Are the parties ready? . ATTY. CRUZ [Counsel for defendants Pascual and Meneses]: .

FISCAL: MAY IT PLEASE THE COURT:

We are ready to call on our first witness, Roger Chavez. This incident of the accused Roger Chavez being called to testify for the
prosecution is something so sudden that has come to the knowledge of this
ATTY. CARBON: counsel.

As per understanding, the proceeding was suspended in order to enable me to This representation has been apprised of the witnesses embraced in the
confer with my client. information.

I conferred with my client and he assured me that he will not testify for the For which reason I pray this court that I be given at least some days to meet
prosecution this morning after I have explained to him the consequences of whatever testimony this witness will bring about. I therefore move for
what will transpire. postponement of today's hearing.

COURT: COURT:

What he will testify to does not necessarily incriminate him, counsel. The court will give counsel time within which to prepare his cross-
examination of this witness.
And there is the right of the prosecution to ask anybody to act as witness on
the witness-stand including the accused. ATTY. CRUZ:

If there should be any question that is incriminating then that is the time for I labored under the impression that the witnesses for the prosecution in this
counsel to interpose his objection and the court will sustain him if and when criminal case are those only listed in the information.

114
I did not know until this morning that one of the accused will testify as
witness for the prosecution.
COURT:
That's the reason why the court will go along with counsels for the accused
and will give them time within which to prepare for their cross-examination
of this witness.
The court will not defer the taking of the direct examination of the witness.
Call the witness to the witness stand.
EVIDENCE FOR THE PROSECUTION
ROGER CHAVEZ, 31 years old, single, buy and sell merchant, presently
detained at the Manila Police Department headquarters, after being duly
sworn according to law, declared as follows:
ATTY. IBASCO [Counsel for defendant Luis Asistio]:
WITH THE LEAVE OF THE COURT:
This witness, Roger Chavez is one of the accused in this case No. Q-5311.
The information alleges conspiracy. Under Rule 123, Section 12, it states:
'The act or declaration of a conspirator relating to the conspiracy and during
its existence, may be given in evidence against the co-conspirator after the
conspiracy is shown by evidence other than such act or declaration.'
COURT:
That is premature, counsel. Neither the court nor counsels for the accused
know what the prosecution events to establish by calling this witness to the
witness stand.
ATTY. IBASCO:
I submit.
COURT: The Fiscal may proceed.3
And so did the trial proceed. It began with the "direct examination" of Roger
Chavez by "Fiscal Grecia".
Came the judgment of February 1, 1965. The version of the prosecution as
found by the court below may be briefly narrated as follows:
A few days before November 12, 1962, Roger Chavez saw Johnson Lee, a
Chinese, driving a Thunderbird car. With Ricardo Sumilang (movie actor
Romeo Vasquez) in mind, whom he knew was in the market for such a car,
Chavez asked Lee whether his car was for sale. Lee answered affirmatively
and left his address with Chavez. Then, on November 12, Chavez met
Sumilang at a barbershop informed him about the Thunderbird. But Sumilang
said that he had changed his mind about buying a new car. Instead, he told
Chavez that he wanted to mortgage his Buick car for P10,000.00 to cover an
indebtedness in Pasay City. Upon the suggestion of Chavez, they went to see
Luis Asistio, who he knew was lending money on car mortgages and who, on
one occasion, already lent Romeo Vasquez P3,000.00 on the same Buick car.
Asistio however told the two that he had a better idea on how to raise the
money. His plan was to capitalize on Romeo Vasquez' reputation as a wealthy
movie star, introduce him as a buyer to someone who was selling a car and,
after the deed of sale is signed, by trickery to run away with the car. Asistio
would then register it, sell it to a third person for a profit. Chavez known to
be a car agent was included in the plan. He furnished the name of Johnson
Lee who was selling his Thunderbird. 1äwphï1.ñët
In the morning of November 14, Chavez telephoned Johnson Lee and
arranged for an appointment. Sometime in the afternoon. Chavez and
Sumilang met Lee in his Thunderbird on Highway 54. Sumilang was
introduced as the interested buyer. Sumilang's driver inspected the car, took
the wheel for a while. After Sumilang and Lee agreed on the purchase price
(P21.000.00), they went to Binondo to Johnson Lee's cousin, Dy Sun Hiok,
in whose name the car was registered. Thereafter, they went to see a lawyer
notary public in Quezon City, known to Chavez for the drafting of the deed
of sale. After the deed of sale was drawn up, it was signed by Sumilang as
the vendee, Dy Sun Hiok the vendor, and Sumilang's driver and Johnson Lee
the witnesses thereto.
115
As payment was to be made at Eugene's restaurant in Quezon City, all of
them then drove in the Thunderbird car to that place. The deed of sale and
other papers remained in the pockets of Johnson Lee.
At Eugene's, a man approached Sumilang with a note which stated that the
money was ready at the Dalisay Theater. Sumilang then wrote on the same
note that the money should be brought to the restaurant. At the same time he
requested Lee to exhibit the deed of sale of the car to the note bearer.4
Then, the two Chinese were left alone in the restaurant. For Sumilang, who
had left the table to pose for pictures with some fans and come back, again
left never to return. So did Chavez, who disappeared after he left on the
pretext of buying cigarettes. The two Chinese could not locate Sumilang and
Chavez. They went out to the place where the Thunderbird was parked, found
that it was gone. They then immediately reported its loss to the police. Much
later, the NBI recovered the already repainted car and impounded it.
Right after the meeting at Eugene's, Chavez, Sumilang and Asistio converged
that same day at Barrio Fiesta, a restaurant at Highway 54 near the Balintawak
monument in Caloocan. There, Asistio handed to Sumilang P1,000.00 cash
and a golf set worth P800.00 as the latter's share in the transaction. On the
14th of November, the registration of the car was transferred in the name of
Sumilang in Cavite City, and three days later, in the name of Asistio in
Caloocan.
From the court's decision, Ricardo Sumilang's version, corroborated in part
by Asistio, may be condensed as follows:
In the last week of September, 1962, Sumilang saw Roger Chavez at a gas
station. The latter informed him that there was a Thunderbird from Clark
Field for sale for a price between P20,000.00 and P22,000.00. Chavez said
that it could be held for him with a down payment of P10,000.00.
To raise this sum, Sumilang and Chavez, on October 1, went to the house of
a certain Nena Hernaez de los Reyes who wrote out a check for P5,000.00 as
a loan to Sumilang. That check was exhibited in court. Sumilang and Chavez
then went to Pasay City to see a certain Mario Baltazar, an agent of the Pasay
City Mayor, and Narsing Cailles, Chief of the Fire Department. Sumilang
asked the two for a P10,000-loan backed up by the P5,000.00-check aforesaid
on condition that it should not be cashed immediately as there were not
enough funds therefor. Baltazar and Cailles agreed to give the money the
nextday as long as the check would be left with them and Sumilang would
sign a promissory note for P10,000.00. Baltazar later informed Sumilang that
Chavez picked up the money the next day. Four or five days afterwards,
Chavez returned P4,000.00 to Sumilang because P6,000.00 was enough for
the deposit. And so, Sumilang gave back the P4,000.00 to Baltazar.
About the end of October or at the beginning of November, Chavez asked
Sumilang for another P3,000.00. Sumilang sent Chavez to Baltazar and
Cailles, with a note requesting that they accommodate him once more. He
also sent a check, again without funds. Baltazar gave the money after
verifying the authenticity of the note.
On November 14, Chavez appeared at Sumilang's house with the news that
the car was ready if Sumilang was ready with the rest of the money. So
Sumilang got P9,000.00 from his mother and another P4,000.00 from his
aparador. He immediately gave P6,000.00 to Chavez, intending to pay out the
balance upon the car's delivery. It was then that Chavez told Sumilang that
the car was already bought by a Chinese who would be the vendor.
The purchase price finally agreed upon between Sumilang and Johnson Lee
was P21,000.00, plus P500.00 agents commission at the expense of the buyer.
Sumilang told Lee that he already paid part of the price to Chavez.
At Eugene's, Chavez asked Sumilang for the balance. Sumilang
accommodated. There, Sumilang, also saw a friend, "Ging" Pascual. In the
course of their conversation at the bar, Sumilang mentioned the proposed
transaction thru Chavez. Pascual warned that Chavez was a "smart" agent and
advised that Sumilang should have a receipt for his money. A certain Bimbo,
a friend of Pascual, offered to make out a receipt for Chavez to sign.
After Sumilang returned from posing for some photographs with some of his
fans, Bimbo showed him the receipt already signed by Chavez. Sumilang
requested Pascual and Bimbo to sign the receipt as witnesses. And they did.
This receipt was offered as an exhibit by the prosecution and by Sumilang.
When Sumilang was ready to leave Eugene's, Johnson Lee turned over to him
the deed of sale, the registration papers and the keys to the car. After shaking
hands with Lee, Sumilang drove away in the car with his driver at the wheel.
116
Two or three days afterwards, Sumilang dropped by the Barrio Fiesta on his
way to a film shooting at Bulacan. He saw Asistio with many companions.
Asistio liked his Thunderbird parked outside. Asistio offered to buy it from
him for P22,500.00. As the offer was good, and knowing Asistio's and his
friends' reputation for always getting what they wanted, Sumilang consented
to the sale. Asistio tendered a down payment of P1,000.00; the balance he
promised to pay the next day after negotiating with some financing company.
Before said balance could be paid, the car was impounded.
The trial court gave evidence to Sumilang's averment, strengthened by
Baltazar's and Cailles' corroborations, that he paid good money for the car.
Sumilang was thus cleared. So was Asistio whom the trial court believed to
be a mere buyer of the car. And so, the prosecution's theory of conspiracy
was discounted.
As to the other accused, the court found no case against Pedro Rebullo alias
"Pita" and Lorenzo Meneses alias "Lory". The accused "Ging" Pascual was
also acquitted for in the first place he was not identified by Johnson Lee in
court.
As to Roger Chavez, however, the court had this to say: "Roger Chavez does
not offer any defense. As a matter of fact, his testimony as witness for the
prosecution establishes his guilt beyond reasonable doubt."5 The trial court
branded him "a self-confessed culprit".6 The court further continued:
It is not improbable that true to the saying that misery loves company Roger
Chavez tried to drag his co-accused down with him by coloring his story with
fabrications which he expected would easily stick together what with the
newspaper notoriety of one and the sensationalism caused by the other. But
Roger Chavez' accusations of Asistio's participation is utterly
uncorroborated. And coming, as it does, from a man who has had at least two
convictions for acts not very different from those charged in this information,
the Court would be too gullible if it were to give full credence to his words
even if they concerned a man no less notorious than himself.7
The trial court then came to the conclusion that if Johnson Lee was not paid
for his car, he had no one but Roger Chavez to blame.
The sum of all these is that the trial court freed all the accused except Roger
Chavez who was found guilty beyond reasonable doubt of the crime of
qualified theft. He was accordingly sentenced to suffer an indeterminate
penalty of not less than ten (10) years, one (1) day, as minimum and not more
than fourteen (14) years, eight (8) months and one (1) day as maximum, to
indemnify Dy Sun Hiok and/or Johnson Lee in the sum of P21,000.00 without
subsidiary imprisonment in case of insolvency, to undergo the accessory
penalties prescribed by law, and to pay the costs. The Thunderbird car then
in the custody of the NBI was ordered to be turned over to Ricardo Sumilang,
who was directed to return to Asistio the sum of P1,000.00 unless the latter
chose to pay P21,500.00, representing the balance of the contract price for
the car.
The foregoing sentence was promulgated on March 8, 1965. Roger Chavez
appealed to the Court of Appeals.
On April 18, 1968, the Court of Appeals required Atty. Natividad Marquez,
counsel for Roger Chavez, to show cause within ten days from notice why
Chavez' appeal should not be considered abandoned and dismissed. Reason
for this is that said lawyer received notice to file brief on December 28, 1967
and the period for the filing thereof lapsed on January 27, 1968 without any
brief having been filed.
On May 13, 1968, Atty. Marquez registered a detailed written explanation.
She also stated that if she were allowed to file appellant's brief she would go
along with the factual findings of the court below but will show however that
its conclusion is erroneous.8
On May 14, 1968, the Court of Appeals, despite the foregoing explanation,
resolved to dismiss the appeal. A move to reconsider was unavailing. For, on
June 21, 1968, the Court of Appeals, through a per curiam resolution,
disposed to maintain its May 14 resolution dismissing the appeal, directed the
City Warden of Manila where Chavez is confined by virtue of the warrant of
arrest issued by the Court of Appeals, to turn him over to Muntinlupa Bilibid
Prisons pending execution of the judgment below, and ordered remand of the
case to the Quezon City court for execution of judgment.
It was at this stage that the present proceedings were commenced in this
Court.
Upon the petitions, the return, and the reply, and after hearing on oral
arguments, we now come to grips with the main problem presented.
117

We concentrate attention on that phase of the issues which relates petitioner's
assertion that he was compelled to testify against himself. For indeed if this
one question is resolved in the affirmative, we need not reach the others; in
which case, these should not be pursued here.
1. Petitioner's plea on this score rests upon his averment, with proof, of
violation of his right — constitutionally entrenched — against self-
incrimination. He asks that the hand of this Court be made to bear down upon
his conviction; that he be relieved of the effects thereof. He asks us to
consider the constitutional injunction that "No person shall be compelled to
be a witness against himself,"9 fully echoed in Section 1, Rule 115, Rules of
Court where, in all criminal prosecutions, the defendant shall be entitled: "(e)
To be exempt from being a witness against himself." .
It has been said that forcing a man to be a witness against himself is at war
with "the fundamentals of a republican government"; 10 that [i]t may suit the
purposes of despotic power but it can not abide the pure atmosphere of
political liberty and personal freedom."11 Mr. Justice Abad Santos recounts
the historical background of this constitutional inhibition, thus: " "The maxim
Nemo tenetur seipsum accusare had its origin in a protest against the
inquisitorial and manifestly unjust methods of interrogating accused persons,
which has long obtained in the continental system, and, until the expulsion of
the Stuarts from the British throne in 1688, and the erection of additional
barriers for the protection of the people against the exercise of arbitrary
power, was not uncommon even in England. While the admissions of
confessions of the prisoner, when voluntarily and freely made, have always
ranked high in the scale of incriminating evidence, if an accused person be
asked to explain his apparent connection with a crime under investigation,
the ease with which the questions put to him may assume an inquisitorial
character, the temptation to press, the witness unduly, to browbeat him if he
be timid or reluctant, to push him into a corner, and to entrap him into fatal
contradictions, which is so painfully evident in many of the earlier state trials,
notably in those of Sir Nicholas Throckmorton, and Udal, the Puritan
minister, made the system so odious as to give rise to a demand for its total
abolition. The change in the English criminal procedure in that particular
seems to be founded upon no statute and no judicial opinion, but upon a
general and silent acquiescence of the courts in a popular demand. But,
however adopted, it has become firmly embedded in English, as well as in
American jurisprudence. So deeply did the iniquities of the ancient system
impress themselves upon the minds of the American colonists that the states,
with one accord, made a denial of the right to question an accused person a
part of their fundamental law, so that a maxim which in England was a mere
rule of evidence, became clothed in this country with the impregnability of a
constitutional enactment." (Brown vs. Walker, 161 U.S., 591, 597; 40 Law.
ed., 819, 821)." 12 Mr. Justice Malcolm, in expressive language, tells us that
this maxim was recognized in England in the early days "in a revolt against
the thumbscrew and the rack." 13 An old Philippine case [1904] 14 speaks of
this constitutional injunction as "older than the Government of the United
States"; as having "its origin in a protest against the inquisitorial methods of
interrogating the accused person"; and as having been adopted in the
Philippines "to wipe out such practices as formerly prevailed in these Islands
of requiring accused persons to submit to judicial examinations, and to give
testimony regarding the offenses with which they were charged."
So it is then that this right is "not merely a formal technical rule the
enforcement of which is left to the discretion of the court"; it is mandatory; it
secures to a defendant a valuable and substantive right; 15 it is fundamental
to our scheme of justice. Just a few months ago, the Supreme Court of the
United States (January 29, 1968), speaking thru Mr. Justice Harlan warned
that "[t]he constitutional privilege was intended to shield the guilty and
imprudent as well as the innocent and foresighted." 16
It is in this context that we say that the constitutional guarantee may not be
treated with unconcern. To repeat, it is mandatory; it secures to every
defendant a valuable and substantive right. Tañada and Fernando
(Constitution of the Philippines, 4th ed., vol. I, pp. 583-584) take note of U.S.
vs. Navarro, supra, which reaffirms the rule that the constitutional
proscription was established on broad grounds of public policy and humanity;
of policy because it would place the witness against the strongest temptation
to commit perjury, and of humanity because it would be to extort a confession
of truth by a kind of duress every species and degree of which the law abhors.
17
Therefore, the court may not extract from a defendant's own lips and against
his will an admission of his guilt. Nor may a court as much as resort to
compulsory disclosure, directly or indirectly, of facts usable against him as a
confession of the crime or the tendency of which is to prove the commission
of a crime. Because, it is his right to forego testimony, to remain silent, unless
118
he chooses to take the witness stand — with undiluted, unfettered exercise of
his own free, genuine will.
Compulsion as it is understood here does not necessarily connote the use of
violence; it may be the product of unintentional statements. Pressure which
operates to overbear his will, disable him from making a free and rational
choice, or impair his capacity for rational judgment would in our opinion be
sufficient. So is moral coercion "tending to force testimony from the
unwilling lips of the defendant." 18
2. With the foregoing as guideposts, we now turn to the facts. Petitioner is a
defendant in a criminal case. He was called by the prosecution as the first
witness in that case to testify for the People during the first day of trial thereof.
Petitioner objected and invoked the privilege of self-incrimination. This he
broadened by the clear cut statement that he will not testify. But petitioner's
protestations were met with the judge's emphatic statement that it "is the right
of the prosecution to ask anybody to act as witness on the witness stand
including the accused," and that defense counsel "could not object to have the
accused called on the witness stand." The cumulative impact of all these is
that accused-petitioner had to take the stand. He was thus peremptorily asked
to create evidence against himself. The foregoing situation molds a solid case
for petitioner, backed by the Constitution, the law, and jurisprudence.
Petitioner, as accused, occupies a different tier of protection from an ordinary
witness. Whereas an ordinary witness may be compelled to take the witness
stand and claim the privilege as each question requiring an incriminating
answer is shot at him, 19 and accused may altogether refuse to take the
witness stand and refuse to answer any and all questions. 20 For, in reality,
the purpose of calling an accused as a witness for the People would be to
incriminate him. 21 The rule positively intends to avoid and prohibit the
certainly inhuman procedure of compelling a person "to furnish the missing
evidence necessary for his conviction." 22 This rule may apply even to a co-
defendant in a joint trial.23
And the guide in the interpretation of the constitutional precept that the
accused shall not be compelled to furnish evidence against himself "is not the
probability of the evidence but it is the capability of abuse." 24 Thus it is, that
it was undoubtedly erroneous for the trial judge to placate petitioner with
these words:.
What he will testify to does not necessarily incriminate him, counsel.
And there is the right of the prosecution to ask anybody to act as witness on
the witness-stand including the accused.
If there should be any question that is incriminating then that is the time for
counsel to interpose his objection and the court will sustain him if and when
the court feels that the answer of this witness to the question would
incriminate him.
Counsel has all the assurance that the court will not require the witness to
answer questions which would incriminate him.
But surely, counsel could not object to have the accused called on the witness
stand.
Paraphrasing Chief Justice Marshall in Aaron Burr's Trial, Robertsons Rep.
I, 208, 244, quoted in VIII Wigmore, p. 355, 25 While a defendant's
knowledge of the facts remains concealed within his bosom, he is safe; but
draw it from thence, and he is exposed" — to conviction.
The judge's words heretofore quoted — "But surely counsel could not object
to have the accused called on the witness stand" — wielded authority. By
those words, petitioner was enveloped by a coercive force; they deprived him
of his will to resist; they foreclosed choice; the realities of human nature tell
us that as he took his oath to tell the truth, the whole truth and nothing but the
truth, no genuine consent underlay submission to take the witness stand.
Constitutionally sound consent was absent.
3. Prejudice to the accused for having been compelled over his objections to
be a witness for the People is at once apparent. The record discloses that by
leading questions Chavez, the accused, was made to affirm his statement
given to the NBI agents on July 17, 1963 at 5:00 o'clock in the afternoon. 26
And this statement detailed the plan and execution thereof by Sumilang
(Vasquez), Asistio and himself to deprive the Chinese of his Thunderbird car.
And he himself proceeded to narrate the same anew in open court. He
identified the Thunderbird car involved in the case. 27
The decision convicting Roger Chavez was clearly of the view that the case
for the People was built primarily around the admissions of Chavez himself.
119
The trial court described Chavez as the "star witness for the prosecution".
Indeed, the damaging facts forged in the decision were drawn directly from
the lips of Chavez as a prosecution witness and of course Ricardo Sumilang
for the defense. There are the unequivocal statements in the decision that
"even accused Chavez" identified "the very same Thunderbird that Johnson
Lee had offered for sale"; that Chavez "testimony as witness for the
prosecution establishes his guilt beyond reasonable doubt and that Chavez is
"a self-confessed culprit". 1äwphï1.ñët
4. With all these, we have no hesitancy in saying that petitioner was forced
to testify to incriminate himself, in full breach of his constitutional right to
remain silent. It cannot be said now that he has waived his right. He did not
volunteer to take the stand and in his own defense; he did not offer himself
as a witness; on the contrary, he claimed the right upon being called to testify.
If petitioner nevertheless answered the questions inspite of his fear of being
accused of perjury or being put under contempt, this circumstance cannot be
counted against him. His testimony is not of his own choice. To him it was a
case of compelled submission. He was a cowed participant in proceedings
before a judge who possessed the power to put him under contempt had he
chosen to remain silent. Nor could he escape testifying. The court made it
abundantly clear that his testimony at least on direct examination would be
taken right then and thereon the first day of the trial.
It matters not that, after all efforts to stave off petitioner's taking the stand
became fruitless, no objections to questions propounded to him were made.
Here involve is not a mere question of self-incrimination. It is a defendant's
constitutional immunity from being called to testify against himself. And the
objection made at the beginning is a continuing one. 1äwphï1.ñët
There is therefore no waiver of the privilege. "To be effective, a waiver must
be certain and unequivocal, and intelligently, understandably, and willingly
made; such waiver following only where liberty of choice has been fully
accorded. After a claim a witness cannot properly be held to have waived his
privilege on vague and uncertain evidence." 28 The teaching in Johnson vs.
Zerbst 29 is this: "It has been pointed out that "courts indulge every
reasonable presumption against waiver" of fundamental constitutional rights
and that we "do not presume acquiescence in the loss of fundamental rights."
A waiver is ordinarily an intentional relinquishment or abandonment of a
known right or privilege." Renuntiatio non praesumitur.
The foregoing guidelines, juxtaposed with the circumstances of the case
heretofore adverted to, make waiver a shaky defense. It cannot stand. If, by
his own admission, defendant proved his guilt, still, his original claim
remains valid. For the privilege, we say again, is a rampart that gives
protection - even to the guilty. 30
5. The course which petitioner takes is correct. Habeas corpus is a high
prerogative writ. 31 It is traditionally considered as an exceptional remedy to
release a person whose liberty is illegally restrained such as when the
accused's constitutional rights are disregarded. 32 Such defect results in the
absence or loss of jurisdiction 33 and therefore invalidates the trial and the
consequent conviction of the accused whose fundamental right was violated.
34 That void judgment of conviction may be challenged by collateral attack,
which precisely is the function of habeas corpus. 35 This writ may issue even
if another remedy which is less effective may be availed of by the defendant.
36 Thus, failure by the accused to perfect his appeal before the Court of
Appeals does not preclude a recourse to the writ. 37 The writ may be granted
upon a judgment already final. 38 For, as explained in Johnson vs. Zerbst, 39
the writ of habeas corpus as an extraordinary remedy must be liberally given
effect 40 so as to protect well a person whose liberty is at stake. The propriety
of the writ was given the nod in that case, involving a violation of another
constitutional right, in this wise:
Since the Sixth Amendment constitutionally entitles one charged with crime
to the assistance of Counsel, compliance with this constitutional mandate is
an essential jurisdictional prerequisite to a Federal Court's authority. When
this right is properly waived, the assistance of Counsel is no longer a
necessary element of the Court's jurisdiction to proceed to conviction and
sentence. If the accused, however, is not represented by Counsel and has not
competently and intelligently waived his constitutional right, the Sixth
Amendment stands as a jurisdictional bar to a valid conviction and sentence
depriving him of his liberty. A court's jurisdiction at the beginning of trial
may be lost "in the course of the proceedings" due to failure to complete the
court — as the Sixth Amendment requires — by providing Counsel for an
accused who is unable to obtain Counsel, who has not intelligently waived
this constitutional guaranty, and whose life or liberty is at stake. If this
requirement of the Sixth Amendment is not complied with, the court no
longer has jurisdiction to proceed. The judgment of conviction pronounced
by a court without jurisdiction is void, and one imprisoned thereunder may
obtain release of habeas corpus. 41
120
Under our own Rules of Court, to grant the remedy to the accused Roger
Chavez whose case presents a clear picture of disregard of a constitutional
right is absolutely proper. Section 1 of Rule 102 extends the writ, unless
otherwise expressly provided by law, "to all cases of illegal confinement or
detention by which any person is deprived of his liberty, or by which the
rightful custody of any person is withheld from the person entitled thereto.
Just as we are about to write finis to our task, we are prompted to restate that:
"A void judgment is in legal effect no judgment. By it no rights are divested.
From it no rights can be obtained. Being worthless in itself, all proceedings
founded upon it are equally worthless. It neither binds nor bars any one. All
acts performed under it and all claims flowing out of it are void. The parties
attempting to enforce it may be responsible as trespassers. ... " 42
6. Respondents' return 43 shows that petitioner is still serving under a final
and valid judgment of conviction for another offense. We should guard
against the improvident issuance of an order discharging a petitioner from
confinement. The position we take here is that petitioner herein is entitled to
liberty thru habeas corpus only with respect to Criminal Case Q-5311 of the
Court of First Instance of Rizal, Quezon City Branch, under which he was
prosecuted and convicted.
Upon the view we take of this case, judgment is hereby rendered directing
the respondent Warden of the City Jail of Manila or the Director of Prisons
or any other officer or person in custody of petitioner Roger Chavez by reason
of the judgment of the Court of First Instance of Rizal, Quezon City Branch,
in Criminal Case Q-5311, entitled "People of the Philippines, plaintiff, vs.
Ricardo Sumilang, et al., accused," to discharge said Roger Chavez from
custody, unless he is held, kept in custody or detained for any cause or reason
other than the said judgment in said Criminal Case Q-5311 of the Court of
First Instance of Rizal, Quezon City Branch, in which event the discharge
herein directed shall be effected when such other cause or reason ceases to
exist.
No costs. So ordered.
Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Angeles and
Fernando, JJ., concur. Castro, J., concurs in a separate opinion.
Separate Opinions
CASTRO, J., dissenting :
In 1901, early in the history of constitutional government in this country, this
Court reversed the conviction of an accused who, having pleaded "not guilty,"
was required by the judge to testify and answer the complaint. The case was
that of United States v. Junio, reported in the first volume of the Philippine
Reports, on page 50 thereof.
Resolution of the case did not require an extended opinion (it consumed no
more than a page in the Reports). For indeed the facts fitted exactly into the
prohibition contained in The President's Instruction to the (Second)
Philippine Commission1 "that no person shall ... be compelled in any criminal
case to be a witness against himself.".
There was no need either for a dissertation on the Rights of Man, though
occasion for this was not lacking as the predominant American members of
the Court were under a special commission to prepare the Filipinos for self-
government. The privilege against self-incrimination was fully understood by
the Filipinos, whose own history provided the necessary backdrop for this
privilege. 2
The Supreme Court simply said, "The judge had no right to compel the
accused to make any statement whatever," and declared the proceedings void.
Nor was there a similar judicial error likely to be committed in the years to
come, what with the constant reminder of a Bill of Rights enshrined in
successive organic acts intended for the Philippines.3 This is not to say that
the Philippine history of the privilege ended with the Junio case. To be sure,
violations of the privilege took other, and perhaps subtle, forms4 but not the
form directly prohibited by the privilege. Even in the recent case of Cabal v.
Kapunan5 it was assumed as a familiar learning that the accused in a criminal
case cannot be required to give testimony and that if his testimony is needed
at all against his co-accused, he must first be discharged.6 If Cabal, the
respondent in an administrative case, was required by an investigating
committee to testify, it was because it was thought that proceedings for
forfeiture of illegally acquired property under Republic Act 13797 were civil
121
and not criminal in nature. Thus Mr. Justice (now Chief Justice) Concepcion
could confidently say:
At the outset, it is not disputed that the accused in a criminal case may refuse
not only to answer incriminatory questions but also to take the witness stand.
(3 Whartons Criminal Evidence, pp. 1959-1960; 98 C.J.S., p. 264). Hence,
the issue before us boils down to whether or not the proceedings before the
aforementioned Committee is civil or criminal in character.
Today, perhaps because of long separation from our past, we need what
Holmes called "education in the obvious, more than investigation of the
obscure."8 The past may have receded so far into the distance that our
perspectives may have been altered and our vision blurred.
When the court in the case at bar required the petitioner to testify, it in effect
undid the libertarian gains made over half a century and overturned the settled
law. The past was recreated with all its vividness and all its horrors: John
Lilburne in England in 1637, refusing to testify before the Council of the Star
Chamber and subsequently condemned by it to be whipped and pilloried for
his "boldness in refusing to take a legal oath;"9 the Filipino priests Gomez,
Burgos and Zamora in 1872 condemned by the Inquisition to die by their own
testimony. 10
It is for this reason that I deem this occasion important for the expression of
my views on the larger question of constitutional dimension.
No doubt the constitutional provision that "No person shall be compelled to
be a witness against himself" 11 may, on occasion, save a guilty man from
his just deserts, but it is aimed against a more far reaching evil — recurrence
of the Inquisition and the Star Chamber, even if not in their stark brutality.
Prevention of the greater evil was deemed of more importance than
occurrence of the lesser evil. 12 As Dean Griswold put the matter with
eloquence:.
[T]he privilege against self-incrimination is one of the great landmarks in
man's struggle to make himself civilized ... [W]e do not make even the most
hardened criminal sign his own death warrant, or dig his own grave, or pull
the lever that springs the trap on which he stands. We have through the course
of history developed considerable feeling of the dignity and intrinsic
importance of the individual man. Even the evil man is a human being. 13
The Government must thus establish guilt by evidence independently and
freely secured; it can not by coercion prove a charge against an accused out
of his own mouth. 14
This is not what was done here. What was done here was to force the
petitioner to take the witness stand and state his part in the crime charged as
"star witness for the prosecution," to use the very words of the decision, and,
by means of his testimony, prove his guilt. Thus, the trial court said in its
decision:
Roger Chavez does not offer any defense. As a matter of fact, his testimony
as a witness for the prosecution establishes his guilt beyond reasonable doubt.
The petitioner has been variously described by the trial court as "a car agent
... well versed in this kind of chicanery" "a self-confessed culprit," and "a man
with at least two convictions for acts not very different from those charged in
[the] information." But if he has thus been described it was on the basis of
evidence wrung from his lips. If he was ultimately found guilty of the charge
against him it was because of evidence which he was forced to give. In truth
he was made the "star witness for the prosecution" against himself.
But neither torture nor an oath nor the threat of punishment such as
imprisonment for contempt can be used to compel him to provide the
evidence to convict himself. No matter how evil he is, he is still a human
being.
The fact that the judgment of conviction became final with the dismissal of
the appeal to the Court of Appeals for failure of the petitioner's former
counsel to file a brief,15 is of no moment. That judgment is void, and it is
precisely the abiding concern of the writ of habeas corpus to provide redress
for unconstitutional and wrongful convictions. Vindication of due process, it
has been well said, is precisely the historic office of the Great Writ. 16
In many respects, this case is similar to that of Fay v. Noia. 17 Noia was
convicted of murder in 1942 with Santo Caminito and Frank Bonino in the
County Court of Kings County, New York, in the killing of one Hemmeroff
during the commission of a robbery. The sole evidence against each
defendant was his signed confession. Caminito and Bonino, but not Noia
appealed their convictions to the Appellate Division of the New York
122
Supreme Court. These appeals were unsuccessful but subsequent legal
proceedings resulted in the releases of Caminito and Bonino upon findings
that their confessions had been coerced and their conviction therefore
procured in violation of the Fourteenth Amendment. Although Noia's
confession was found to have been coerced, the United States District Court
for the Southern District of New York held that, because of Noia's failure to
appeal, he must be denied reliefin view of the provision of 28 U.S.C. sec.
2254 that "An application for a writ of habeas corpus in behalf of a person in
custody pursuant to the judgment of a State court shall not be granted unless
it appears that the applicant has exhausted the remedies available in the courts
of the State. ..." The Court of Appeals for the Second Circuit reversed the
judgment of the District Court and ordered Noia's conviction set aside, with
direction to discharge him from custody unless given a new trial forthwith.
From that judgment the State appealed.
As the Supreme Court of the United States phrased the issue, the "narrow
question is whether the respondent Noia may be granted federal habeas
corpus relief from imprisonment under a New York conviction now admitted
by the State to rest upon a confession obtained from him in violation of the
Fourteenth Amendment, after he was denied state post-conviction relief
because the coerced confession claim had been decided against him at the
trial and Noia had allowed the time for a direct appeal to lapse without
seeking review by a state appellate court."
In affirming the judgment of the Court of Appeals, the United States Supreme
Court, through Mr. Justice Brennan, spoke in enduring language that may
well apply to the case of Roger Chavez. Said the Court: 1äwphï1.ñët
Today as always few indeed is the number of State prisoners who eventually
win their freedom by means of federal habeas corpus. These few who are
ultimately successful are persons whom society has grievously wronged and
for whom belated liberation is little enough compensation. Surely no fair
minded person will contend that those who have been deprived of their liberty
without due process of law ought nevertheless to languish in prison. Noia, no
less than his co-defendants Caminito and Bonino, is conceded to have been
the victim of unconstitutional state action. Noia's case stands on its own; but
surely no just and humane legal system can tolerate a result whereby a
Caminito and a Bonino are at liberty because their confessions were found to
have been coerced yet Noia, whose confession was also coerced, remains in
jail for life. For such anomalies, such affronts to the conscience of a civilized
society, habeas corpus is predestined by its historical role in the struggle for
personal liberty to be the ultimate remedy. If the States withhold effective
remedy, the federal courts have the power and the duty to provide it. Habeas
Corpus is one of the precious heritages of Anglo-American civilization. We
do no more today than confirm its continuing efficacy.
A fitting conclusion of this separate opinion may perhaps be found in two
memorable admonitions from Marjorie G. Fribourg and Justice William O.
Douglas.
Mrs. Fribourg, in her inimitable phrase, warns us that —
... Time has taught its age-old lesson. Well-meaning people burnt witches.
Well-meaning prosecutors have convicted the innocent. Well-meaning
objectives espoused by those not grounded in history can lure us from
protecting our heritage of equal justice under the law. They can entice us,
faster than we like to believe, into endangering our liberties.18
And these are the unforgettable words of Justice Douglas:
The challenge to our liberties comes frequently not from those who
consciously seek to destroy our system of government, but from men of
goodwill - good men who allow their proper concerns to blind them to the
fact that what they propose to accomplish involves an impairment of liberty.
xxx xxx xxx
The motives of these men are often commendable. What we must remember,
however, is that preservation of liberties does not depend on motives. A
suppression of liberty has the same effect whether the suppressor be a
reformer or an outlaw. The only protection against misguided zeal is constant
alertness to infractions of the guarantees of liberty contained in our
Constitution. Each surrender of liberty to the demands of the moment makes
easier another, larger surrender. The battle over the Bill of Rights is a never
ending one. 1äwphï1.ñët
xxx xxx xxx
The liberties of any person are the liberties of all of us.
123
xxx xxx xxx

In short, the liberties of none are safe unless the liberties of all are protected.

But even if we should sense no danger to our own liberties, even if we feel
secure because we belong to a group that is important and respected, we must
recognize that our Bill of Rights is a code of fair play for the less fortunate
that we in all honor and good conscience must observe.19

124

G.R. No. L-19052 December 29, 1962
MANUEL F. CABAL, petitioner,
vs.
HON. RUPERTO KAPUNAN, JR., and THE CITY FISCAL OF MANILA,
respondents.
Francisco Carreon for petitioner.
Assistant City Fiscal Manuel T. Reyes for respondent City of Manila.
CONCEPCION, J.:
This is an original petition for certiorari and prohibition with preliminary
injunction, to restrain the Hon. Ruperto Kapunan, Jr., as Judge of the Court
of First Instance of Manila, from further proceeding in Criminal Case No.
60111 of said court, and to set aside an order of said respondent, as well as
the whole proceedings in said criminal case. .
On or about August 1961, Col. Jose C. Maristela of the Philippine Army filed
with the Secretary of Nation Defense a letter-complaint charging petitioner
Manuel Cabal, then Chief of Staff of the Armed Forces of the Philippines,
with "graft, corrupt practices, unexplained wealth, conduct unbecoming of an
officer and gentleman dictatorial tendencies, giving false statements of his as
sets and liabilities in 1958 and other equally reprehensible acts". On
September 6, 1961, the President of the Philippines created a committee of
five (5) members, consisting of former Justice Marceliana R. Montemayor,
as Chairman, former Justices Buenaventura Ocampo and Sotero Cabahug,
and Generals Basilio J. Valdez and Guillermo B. Francisco, to investigate the
charge of unexplained wealth contained in said letter-complaint and submit
its report and recommendations as soon as possible. At the beginning of the
investigation, on September 15, 1961, the Committee, upon request of
complainant Col. Maristela, or considered petitioner herein to take the
witness stand and be sworn to as witness for Maristela, in support of his
aforementioned charge of unexplained wealth. Thereupon, petitioner
objected, personally and through counsel, to said request of Col. Maristela
and to the aforementioned order of the Committee, invoking his constitutional
right against self-incrimination. The Committee insisted that petitioner take
the witness stand and be sworn to, subject to his right to refuse to answer such
questions as may be incriminatory. This notwithstanding, petitioner
respectfully refused to be sworn to as a witness to take the witness stand.
Hence, in a communication dated September 18, 1961, the Committee
referred the matter to respondent City Fiscal of Manila, for such action as he
may deem proper. On September 28, 1961, the City Fiscal filed with the Court
of First Instance of Manila a "charge" reading as follows:
The undersigned hereby charges Manuel F. Cabal with contempt under
section 580 of the Revised Administrative Code in relation to sections I and
7, Rule 64 of the Rules of Court, committed as follows:
That on or about September 15, 1961, in the investigation conducted at the
U.P. Little Theater:, Padre Faura, Manila, by the Presidential Committee,
which was created by the President of the Republic of the Philippines in
accordance with law to investigate the charges of alleged acquisition by
respondent of unexplained wealth and composed of Justice Marceliano
Montemayor, as Chairman, and Justices Buenaventura Ocampo and Sotero
Cabahug and Generals Basilio Valdez and Guillermo Francisco, as members,
with the power, among others, to compel the attendance of witnesses and take
their testimony under oath, respondent who was personally present at the time
before the Committee in compliance with a subpoena duly issued to him, did
then and there willfully, unlawfully, and contumaciously, without any
justifiable cause or reason refusal and fail and still refuses and fails to obey
the lawful order of the Committee to take the witness stand, be sworn and
testify as witness in said investigation, in utter disregard of the lawful
authority of the Committee and thereby obstructing and degrading the
proceedings before said body.
Wherefore, it is respectfully prayed that respondent be summarily adjudged
guilty of contempt of the Presidential Committee and accordingly disciplined
as in contempt of court imprisonment until such time as he shall obey the
subject order of said committee.
This charge, docketed as Criminal Case No. 60111 of said court, was assigned
to Branch XVIII thereof, presided over by respondent Judge. On October 2,
1961, the latter issued an order requiring petitioner to show cause and/or
answer the charge filed against him within ten (10) days. Soon thereafter, or
on October 4, 1961, petitioner filed with respondent Judge a motion to quash
the charge and/or order to show cause, upon the ground: (1) that the City
Fiscal has neither authority nor personality to file said char and the same is
null and void, for, if criminal, the charge has been filed without a preliminary
125
investigation, and, civil, the City Fiscal may not file it, his authority in respect
of civil cases being limited to representing the City of Manila; (2) that the
facts charged constitute no offense for section 580 of the Revised
Administrative Code, upon which the charge is based, violates due process,
in that it is vague and uncertain as regards the offense therein defined and the
fine imposable therefor and that it fail to specify whether said offense shall
be treated also contempt of an inferior court or of a superior court (3) that
more than one offense is charged, for the contempt imputed to petitioner is
sought to be punished as contempt of an inferior court, as contempt of a
superior court an as contempt under section 7 of Rule 64 of the Rules Court;
(4) that the Committee had no power to order an require petitioner to take the
witness stand and be sworn to, upon the request of Col. Maristela, as witness
for the latter, inasmuch as said order violates petitioner's constitutional right
against self-incrimination.
By resolution dated October 14, 1961. respondent Judge denied said motion
to quash. Thereupon, or on October 20, 1961, petitioner began the present
action for the purpose adverted to above, alleging that, unless restrained by
this court, respondent Judge may summarily punish him for contempt, and
that such action would not be appealable.
In their answer, respondents herein allege, inter alia, that the investigation
being conducted by the Committee above referred to is administrative, not
criminal, in nature; that the legal provision relied upon by petitioner in
relation to preliminary investigations (Section '08-C, Republic Act No. 409,
as amended by Republic Act No. 1201) is inapplicable to contempt
proceedings; that, under section 580 of the Revised Administrative Code.
contempt against an administrative officer is to be dealt with as contempt of
a superior court; that petitioner herein is charged with only one offense; and
that, tinder the constitutional guarantee against self-incrimination, petitioner
herein may refuse, not to take the witness stand, but to answer incriminatory
questions.
At the outset, it is not disputed that the accused in a criminal case may refuse,
not only to answer incriminatory questions, but, also, to take the witness stand
(3 Wharton's Criminal Evidence, pp. 1959-1960; 98 C.J.S., p. 264). Hence,
the issue before us boils down to whether or not the proceedings before the
aforementioned Committee is civil or criminal in character.
In this connection, it should be noted that, although said Committee was
created to investigate the administrative charge of unexplained wealth, there
seems to be no question that Col. Maristela does not seek the removal of
petitioner herein as Chief of Staff of the Armed Forces of the Philippines. As
a matter of fact he no longer holds such office. It seems, likewise conceded
that the purpose of the charge against petitioner is to apply the provisions of
Republic Act No. 1379, as amended, otherwise known as the Anti-Graft Law,
which authorizes the forfeiture to the State of property of a public officer or
employee which is manifestly out of proportion to his salary as such public
officer or employee and his other lawful income and the income from
legitimately acquired property. Such for forfeiture has been held, however, to
partake of the nature of a penalty.
In a strict signification, a forfeiture is a divestiture property without
compensation, in consequence of a default an offense, and the term is used in
such a sense in this article. A forfeiture, as thus defined, is imposed by way
of punishment not by the mere convention of the parties, but by the
lawmaking power, to insure a prescribed course of conduct. It is a method
deemed necessary by the legislature to restrain the commission of an offense
and to aid in the prevention of such a offense. The effect of such a forfeiture
is to transfer the title to the specific thing from the owner to the sovereign
power (23 Am. Jur. 599) (Emphasis ours.)
In Black's Law Dictionary a "forfeiture" is defined to be "the incurring of a
liability to pay a definite sum of money as the consequence of violating the
provisions of some statute or refusal to comply with some requirement of
law." It may be said to be a penalty imposed for misconduct or breach of duty.
(Com. vs. French, 114 S.W. 255.)
As a consequence, proceedings for forfeiture of proper are deemed criminal
or penal, and, hence, the exemption of defendants in criminal case from the
obligation to be witnesses against themselves are applicable thereto.
Generally speaking, informations for the forfeiture of goods that seek no
judgment of fine or imprisonment against any person are deemed to be civil
proceedings in rem. Such proceedings are criminal in nature to the extent that
where the person using the res illegally is the owner or rightful possessor of
it, the forfeiture proceeding is in the nature of a punishment. They have been
held to be so far in the nature criminal proceedings that a general verdict on
several count in an information is upheld if one count is good. According to
126
the authorities such proceedings, where the owner of the property appears,
are so far considered as quasi-criminal proceeding as to relieve the owner
from being a witness against himself and to prevent the compulsory
production of his books and papers. ... (23 Am. Jur. 612; emphasis ours.)
Although the contrary view formerly obtained, the late decisions are to the
effect that suits for forfeitures incurred by the commission of offenses against
the law are so far of quasi-criminal nature as to be within the reason of
criminal proceedings for all purposes of ... that portion of the Fifth
Amendment which declares that no person shall be compelled in any criminal
case to be a witness against himself. .... It has frequently been held upon
constitutional grounds under the various State Constitution, that a witness or
party called as witness cannot be made to testify against himself as to matters
which would subject his property to forfeiture. At early common law no
person could be compelled to testify against himself or to answer any
question which would have had a tendency to expose his property to a
forfeiture or to form a link in a chain of evidence for that purpose, as well as
to incriminate him. Under this common-law doctrine of protection against
compulsory disclosures which would tend to subject the witness to forfeiture,
such protection was claimed and availed of in some early American cases
without placing the basis of the protection upon constitutional grounds. (23
Am. Jur., 616; emphasis ours.)
Proceedings for forfeitures are generally considered to be civil and in the
nature of proceedings in rem. The statute providing that no judgment or other
proceedings in civil cases shall be arrested or reversed for any defect or want
of form is applicable to them. In some aspects, however, suits for penalties
and forfeitures are of quasi-criminal nature and within the reason of criminal
proceedings for all the purposes of ... that portion of the Fifth Amendment
which declares, that no person shall be compelled in any criminal case to be
a witness against himself. The proceeding is one against the owner, as well
as against the goods; for it is his breach of the laws which has to be proved to
establish the forfeiture and his property is sought to be forfeited. (15 Am. Jur.,
Sec. 104, p. 368; emphasis ours.)lawphil.net
The rule protecting a person from being compelled to furnish evidence which
would incriminate him exists not only when he is liable criminally to
prosecution and punishment, but also when his answer would tend to expose
him to a ... forfeiture .... (58 Am. Jur., See. 43, p. 48; emphasis ours.)
As already observed, the various constitutions provide that no person shall be
compelled in any criminal case to be a witness against himself. This
prohibition against compelling a person to take the stand as a witness against
himself applied only to criminal, quasi-criminal, and penal proceedings,
including a proceeding civil in form for forfeiture of property by reason of
the commission of an offense, but not a proceeding in which the penalty
recoverable is civil or remedial in nature, .... (58 Am. Jur., Sec. 44, p. 49:
emphasis ours.)
The privilege of a witness not to incriminate himself is not infringed by
merely asking the witness a question which he refuses to answer. The
privilege is simply an option of refusal, and not a prohibition of inquiry. A
question is not improper merely because the answer may tend to incriminate
but, where a witness exercises his constitutional right not to answer, a
question by counsel as to whether the reason for refusing to answer is because
the answer may tend to incriminate the witness is improper.
The possibility that the examination of the witness will be pursued to the
extent of requiring self-incrimination will not justify the refusal to answer
questions. However, where the position of the witness is virtually that of an
accused on trial, it would appear that he may invoke the privilege in support
of a blanket refusal to answer any and all questions. (C.J.S., p. 252; emphasis
ours.)
A person may not be compelled to testify in an action against him for a
penalty or to answer any question as a witness which would subject him to a
penalty or forfeiture, where the penalty or forfeiture is imposed as a
vindication of the public justice of the state.
In general, both at common law and under a constitution provision against
compulsory self-incrimination, a person may not be compelled to answer any
question as a witness which would subject him to a penalty or forfeiture, or
testify in action against him for a penalty.
The privilege applies where the penalty or forfeiture recoverable, or is
imposed in vindication of the public justice the state as a statutory fine or
penalty, or a fine or penalty for violation of a municipal ordinance, even
though the action or proceeding for its enforcement is not brought in a
criminal court but is prosecuted through the modes of procedure applicable
to ordinary civil remedy. (98 C. J. S., pp. 275-6.)
127
 Bengzon, C.J., is on leave.
Thus, in Boyd vs. U.S. (116 U.S. 616, 29 L. ed. 746), it was held that the
information, in a proceeding to declaration a forfeiture of certain property
because of the evasion of a certain revenue law, "though technically a civil
proceeding is in substance and effect a criminal one", and that suits for
penalties and forfeitures are within the reason criminal proceedings for the
purposes of that portion the Fifth Amendment of the Constitution of the U.S.
which declares that no person shall be compelled in a criminal case to be a
witness against himself. Similarly, a proceeding for the removal of an officer
was held, in Thurston vs. Clark (107 Cal. 285, 40 pp. 435, 437), to be in
substance criminal, for said portion of the Fifth Amendment applies "to all
cases in which the action prosecution is not to establish, recover or redress
private and civil rights, but to try and punish persons charged with the
commission of public offenses" and "a criminal case is a action, suit or cause
instituted to punish an infraction the criminal laws, and, with this object in
view, it matters not in what form a statute may clothe it; it is still a criminal
case ...". This view was, in effect confirmed in Lees vs. U.S. (37 L. ed. 1150-
1151). Hence, the Lawyer Reports Annotated (Vol. 29, p. 8), after an
extensive examination of pertinent cases, concludes that said constitutional
provision applies whenever the proceeding is not "purely remedial", or
intended "as a redress for a private grievance", but primarily to punish "a
violation of duty or a public wrong and to deter others from offending in
likewise manner. ...".

We are unmindful of the doctrine laid down in Almeda vs. Perez, L-18428
(August 30, 1962) in which the theory that, after the filing of respondents'
answer to a petition for forfeiture under Republic Act No. 1379, said petition
may not be amended as to substance pursuant to our rules of criminal
procedure, was rejected by this Court upon the ground that said forfeiture
proceeding in civil in nature. This doctrine refers, however, to the purely
procedural aspect of said proceeding, and has no bearing the substantial rights
of the respondents therein, particularly their constitutional right against self-
incrimination.

WHEREFORE, the writ prayed for is granted and respondent Judge hereby
enjoined permanently from proceeding further in Criminal Case No. 60111
of the Court of First Instance of Manila. It is so ordered.

Padilla, Bautista Angelo, Labrador, Reyes, J.B.L., Barrera, Paredes, Dizon,

Regala and Makalintal, JJ., concur.

128
G.R. No. L-25018 May 26, 1969
ARSENIO PASCUAL, JR., petitioner-appellee,
vs.
BOARD OF MEDICAL EXAMINERS, respondent-appellant, SALVADOR
GATBONTON and ENRIQUETA GATBONTON, intervenors-appellants.
Conrado B. Enriquez for petitioner-appellee.
Office of the Solicitor General Arturo A. Alafriz, Assistant Solicitor General
Antonio A. Torres and Solicitor Pedro A. Ramirez for respondent-appellant.
Bausa, Ampil and Suarez for intervenors-appellants.
FERNANDO, J.:
The broad, all-embracing sweep of the self-incrimination clause,1 whenever
appropriately invoked, has been accorded due recognition by this Court ever
since the adoption of the Constitution.2 Bermudez v. Castillo,3 decided in
1937, was quite categorical. As we there stated: "This Court is of the opinion
that in order that the constitutional provision under consideration may prove
to be a real protection and not a dead letter, it must be given a liberal and
broad interpretation favorable to the person invoking it." As phrased by
Justice Laurel in his concurring opinion: "The provision, as doubtless it was
designed, would be construed with the utmost liberality in favor of the right
of the individual intended to be served." 4
Even more relevant, considering the precise point at issue, is the recent case
of Cabal v. Kapunan,5where it was held that a respondent in an administrative
proceeding under the Anti-Graft Law 6 cannot be required to take the witness
stand at the instance of the complainant. So it must be in this case, where
petitioner was sustained by the lower court in his plea that he could not be
compelled to be the first witness of the complainants, he being the party
proceeded against in an administrative charge for malpractice. That was a
correct decision; we affirm it on appeal.
Arsenio Pascual, Jr., petitioner-appellee, filed on February 1, 1965 with the
Court of First Instance of Manila an action for prohibition with prayer for
preliminary injunction against the Board of Medical Examiners, now
respondent-appellant. It was alleged therein that at the initial hearing of an
administrative case7 for alleged immorality, counsel for complainants
announced that he would present as his first witness herein petitioner-
appellee, who was the respondent in such malpractice charge. Thereupon,
petitioner-appellee, through counsel, made of record his objection, relying on
the constitutional right to be exempt from being a witness against himself.
Respondent-appellant, the Board of Examiners, took note of such a plea, at
the same time stating that at the next scheduled hearing, on February 12,
1965, petitioner-appellee would be called upon to testify as such witness,
unless in the meantime he could secure a restraining order from a competent
authority.
Petitioner-appellee then alleged that in thus ruling to compel him to take the
witness stand, the Board of Examiners was guilty, at the very least, of grave
abuse of discretion for failure to respect the constitutional right against self-
incrimination, the administrative proceeding against him, which could result
in forfeiture or loss of a privilege, being quasi-criminal in character. With his
assertion that he was entitled to the relief demanded consisting of perpetually
restraining the respondent Board from compelling him to testify as witness
for his adversary and his readiness or his willingness to put a bond, he prayed
for a writ of preliminary injunction and after a hearing or trial, for a writ of
prohibition.
On February 9, 1965, the lower court ordered that a writ of preliminary
injunction issue against the respondent Board commanding it to refrain from
hearing or further proceeding with such an administrative case, to await the
judicial disposition of the matter upon petitioner-appellee posting a bond in
the amount of P500.00.
The answer of respondent Board, while admitting the facts stressed that it
could call petitioner-appellee to the witness stand and interrogate him, the
right against self-incrimination being available only when a question calling
for an incriminating answer is asked of a witness. It further elaborated the
matter in the affirmative defenses interposed, stating that petitioner-appellee's
remedy is to object once he is in the witness stand, for respondent "a plain,
speedy and adequate remedy in the ordinary course of law," precluding the
issuance of the relief sought. Respondent Board, therefore, denied that it
acted with grave abuse of discretion.
There was a motion for intervention by Salvador Gatbonton and Enriqueta
Gatbonton, the complainants in the administrative case for malpractice
against petitioner-appellee, asking that they be allowed to file an answer as
intervenors. Such a motion was granted and an answer in intervention was
129
duly filed by them on March 23, 1965 sustaining the power of respondent
Board, which for them is limited to compelling the witness to take the stand,
to be distinguished, in their opinion, from the power to compel a witness to
incriminate himself. They likewise alleged that the right against self-
incrimination cannot be availed of in an administrative hearing.
A decision was rendered by the lower court on August 2, 1965, finding the
claim of petitioner-appellee to be well-founded and prohibiting respondent
Board "from compelling the petitioner to act and testify as a witness for the
complainant in said investigation without his consent and against himself."
Hence this appeal both by respondent Board and intervenors, the Gatbontons.
As noted at the outset, we find for the petitioner-appellee.
1. We affirm the lower court decision on appeal as it does manifest fealty to
the principle announced by us in Cabal v. Kapunan. 8 In that proceeding for
certiorari and prohibition to annul an order of Judge Kapunan, it appeared
that an administrative charge for unexplained wealth having been filed
against petitioner under the Anti-Graft Act,9the complainant requested the
investigating committee that petitioner be ordered to take the witness stand,
which request was granted. Upon petitioner's refusal to be sworn as such
witness, a charge for contempt was filed against him in the sala of respondent
Judge. He filed a motion to quash and upon its denial, he initiated this
proceeding. We found for the petitioner in accordance with the well-settled
principle that "the accused in a criminal case may refuse, not only to answer
incriminatory questions, but, also, to take the witness stand."
It was noted in the opinion penned by the present Chief Justice that while the
matter referred to an a administrative charge of unexplained wealth, with the
Anti-Graft Act authorizing the forfeiture of whatever property a public officer
or employee may acquire, manifestly out proportion to his salary and his other
lawful income, there is clearly the imposition of a penalty. The proceeding
for forfeiture while administrative in character thus possesses a criminal or
penal aspect. The case before us is not dissimilar; petitioner would be
similarly disadvantaged. He could suffer not the forfeiture of property but the
revocation of his license as a medical practitioner, for some an even greater
deprivation.
To the argument that Cabal v. Kapunan could thus distinguished, it suffices
to refer to an American Supreme Court opinion highly persuasive in
character. 10 In the language of Justice Douglas: "We conclude ... that the
Self-Incrimination Clause of the Fifth Amendment has been absorbed in the
Fourteenth, that it extends its protection to lawyers as well as to other
individuals, and that it should not be watered down by imposing the dishonor
of disbarment and the deprivation of a livelihood as a price for asserting it."
We reiterate that such a principle is equally applicable to a proceeding that
could possibly result in the loss of the privilege to practice the medical
profession.
2. The appeal apparently proceeds on the mistaken assumption by respondent
Board and intervenors-appellants that the constitutional guarantee against
self-incrimination should be limited to allowing a witness to object to
questions the answers to which could lead to a penal liability being
subsequently incurred. It is true that one aspect of such a right, to follow the
language of another American decision, 11 is the protection against "any
disclosures which the witness may reasonably apprehend could be used in a
criminal prosecution or which could lead to other evidence that might be so
used." If that were all there is then it becomes diluted.lawphi1.ñet
The constitutional guarantee protects as well the right to silence. As far back
as 1905, we had occasion to declare: "The accused has a perfect right to
remain silent and his silence cannot be used as a presumption of his guilt." 12
Only last year, in Chavez v. Court of Appeals, 13 speaking through Justice
Sanchez, we reaffirmed the doctrine anew that it is the right of a defendant
"to forego testimony, to remain silent, unless he chooses to take the witness
stand — with undiluted, unfettered exercise of his own free genuine will."
Why it should be thus is not difficult to discern. The constitutional guarantee,
along with other rights granted an accused, stands for a belief that while crime
should not go unpunished and that the truth must be revealed, such desirable
objectives should not be accomplished according to means or methods
offensive to the high sense of respect accorded the human personality. More
and more in line with the democratic creed, the deference accorded an
individual even those suspected of the most heinous crimes is given due
weight. To quote from Chief Justice Warren, "the constitutional foundation
underlying the privilege is the respect a government ... must accord to the
dignity and integrity of its citizens." 14
It is likewise of interest to note that while earlier decisions stressed the
principle of humanity on which this right is predicated, precluding as it does
all resort to force or compulsion, whether physical or mental, current judicial
130
opinion places equal emphasis on its identification with the right to privacy.
Thus according to Justice Douglas: "The Fifth Amendment in its Self-
Incrimination clause enables the citizen to create a zone of privacy which
government may not force to surrender to his detriment." 15 So also with the
observation of the late Judge Frank who spoke of "a right to a private enclave
where he may lead a private life. That right is the hallmark of our democracy."
16 In the light of the above, it could thus clearly appear that no possible
objection could be legitimately raised against the correctness of the decision
now on appeal. We hold that in an administrative hearing against a medical
practitioner for alleged malpractice, respondent Board of Medical Examiners
cannot, consistently with the self-incrimination clause, compel the person
proceeded against to take the witness stand without his consent.

WHEREFORE, the decision of the lower court of August 2, 1965 is affirmed.

Without pronouncement as to costs.

131
G.R. Nos. 71208-09 August 30, 1985
SATURNINA GALMAN AND REYNALDO GALMAN, petitioners,
vs.
THE HONORABLE PRESIDING JUSTICE MANUEL PAMARAN AND
ASSOCIATE JUSTICES AUGUSTO AMORES AND BIENVENIDO
VERA CRUZ OF THE SANDIGANBAYAN, THE HONORABLE
BERNARDO FERNANDEZ, TANODBAYAN, GENERAL FABIAN C.
VER, MAJOR GENERAL PROSPERO OLIVAS, SGT. PABLO
MARTINEZ, SGT. TOMAS FERNANDEZ, SGT. LEONARDO MOJICA
SGT. PEPITO TORIO, SGT. PROSPERO BONA AND AlC ANICETO
ACUPIDO, respondents.
G.R. Nos. 71212-13 August 30, 1985
PEOPLE OF THE PHILIPPINES, represented by the TANODBAYAN
(OMBUDSMAN), petitioner,
vs.
THE SANDIGANBAYAN, GENERAL FABIAN C. VER, MAJOR GEN.
PROSPERO OLIVAS, SGT. PABLO MARTINEZ, SGT. TOMAS
FERNANDEZ, SGT. LEONARDO MOJICA, SGT. PEPITO TORIO, SGT.
PROSPERO BONA AND AIC ANICETO ACUPIDO, respondents.
CUEVAS, JR., J.:
On August 21, 1983, a crime unparalleled in repercussions and ramifications
was committed inside the premises of the Manila International Airport (MIA)
in Pasay City. Former Senator Benigno S. Aquino, Jr., an opposition stalwart
who was returning to the country after a long-sojourn abroad, was gunned
down to death. The assassination rippled shock-waves throughout the entire
country which reverberated beyond the territorial confines of this Republic.
The after-shocks stunned the nation even more as this ramified to all aspects
of Philippine political, economic and social life.
To determine the facts and circumstances surrounding the killing and to allow
a free, unlimited and exhaustive investigation of all aspects of the tragedy, 1
P.D. 1886 was promulgated creating an ad hoc Fact Finding Board which
later became more popularly known as the Agrava Board. 2 Pursuant to the
powers vested in it by P.D. 1886, the Board conducted public hearings
wherein various witnesses appeared and testified and/or produced
documentary and other evidence either in obedience to a subpoena or in
response to an invitation issued by the Board Among the witnesses who
appeared, testified and produced evidence before the Board were the herein
private respondents General Fabian C. Ver, Major General Prospero Olivas,
3 Sgt. Pablo Martinez, Sgt. Tomas Fernandez, Sgt. Leonardo Mojica, Sgt.
Pepito Torio, Sgt. Prospero Bona and AIC Aniceto Acupido. 4
UPON termination of the investigation, two (2) reports were submitted to His
Excellency, President Ferdinand E. Marcos. One, by its Chairman, the Hon.
Justice Corazon Juliano Agrava; and another one, jointly authored by the
other members of the Board — namely: Hon. Luciano Salazar, Hon. Amado
Dizon, Hon. Dante Santos and Hon. Ernesto Herrera. 'the reports were
thereafter referred and turned over to the TANODBAYAN for appropriate
action. After conducting the necessary preliminary investigation, the
TANODBAYAN 5 filed with the SANDIGANBAYAN two (2) Informations
for MURDER-one for the killing of Sen. Benigno S. Aquino which was
docketed as Criminal Case No. 10010 and another, criminal Case No. 10011,
for the killing of Rolando Galman, who was found dead on the airport tarmac
not far from the prostrate body of Sen. Aquino on that same fateful day. In
both criminal cases, private respondents were charged as accessories, along
with several principals, and one accomplice.
Upon arraignment, all the accused, including the herein private ate
Respondents pleaded NOT GUILTY.
In the course of the joint trial of the two (2) aforementioned cases, the
Prosecution represented by the Office of the petition TANODBAYAN,
marked and thereafter offered as part of its evidence, the individual
testimonies of private respondents before the Agrava Board. 6 Private
respondents, through their respective counsel objected to the admission of
said exhibits. Private respondent Gen. Ver filed a formal "Motion to Exclude
Testimonies of Gen. Fabian C. Ver before the Fact Finding Board as
Evidence against him in the above-entitled cases" 7 contending that its
admission will be in derogation of his constitutional right against self-
incrimination and violative of the immunity granted by P.D. 1886. He prayed
that his aforesaid testimony be rejected as evidence for the prosecution. Major
Gen. Olivas and the rest of the other private respondents likewise filed
separate motions to exclude their respective individual testimonies invoking
the same ground. 8 Petitioner TANODBAYAN opposed said motions
132
contending that the immunity relied upon by the private respondents in
support of their motions to exclude their respective testimonies, was not
available to them because of their failure to invoke their right against self-
incrimination before the ad hoc Fact Finding Board. 9 Respondent
SANDIGANBAYAN ordered the TANODBAYAN and the private
respondents to submit their respective memorandum on the issue after which
said motions will be considered submitted for resolution. 10
On May 30, 1985, petitioner having no further witnesses to present and
having been required to make its offer of evidence in writing, respondent
SANDIGANBAYAN, without the pending motions for exclusion being
resolved, issued a Resolution directing that by agreement of the parties, the
pending motions for exclusion and the opposition thereto, together with the
memorandum in support thereof, as well as the legal issues and arguments,
raised therein are to be considered jointly in the Court's Resolution on the
prosecution's formal offer of exhibits and other documentary evidences.11
On June 3, 1985, the prosecution made a written "Formal Offer of Evidence"
which includes, among others, the testimonies of private respondents and
other evidences produced by them before the Board, all of which have been
previously marked in the course of the trial.12
All the private respondents objected to the prosecution's formal offer of
evidence on the same ground relied upon by them in their respective motion
for exclusion.
On June 13, 1985, respondent SANDIGANBAYAN issued a Resolution,
now assailed in these two (2) petitions, admitting all the evidences offered by
the prosecution except the testimonies and/or other evidence produced by the
private respondents in view of the immunity granted by P.D. 1886. 13
Petitioners' motion for the reconsideration of the said Resolution having been
DENIED, they now come before Us by way of certiorari 14 praying for the
amendment and/or setting aside of the challenged Resolution on the ground
that it was issued without jurisdiction and/or with grave abuse of discretion
amounting to lack of jurisdiction. Private prosecutor below, as counsel for the
mother of deceased Rolando Galman, also filed a separate petition for
certiorari 15 on the same ground. Having arisen from the same factual
beginnings and raising practically Identical issues, the two (2) petitioners
were consolidated and will therefore be jointly dealt with and resolved in this
Decision.
The crux of the instant controversy is the admissibility in evidence of the
testimonies given by the eight (8) private respondents who did not invoke
their rights against self-incrimination before the Agrava Board.
It is the submission of the prosecution, now represented by the petitioner
TANODBAYAN, that said testimonies are admissible against the private
respondents, respectively, because of the latter's failure to invoke before the
Agrava Board the immunity granted by P.D. 1886. Since private respondents
did not invoke said privilege, the immunity did not attach. Petitioners went
further by contending that such failure to claim said constitutional privilege
amounts to a waiver thereof. 16 The private respondents, on the other hand,
claim that notwithstanding failure to set up the privilege against self-
incrimination before the Agrava Board, said evidences cannot be used against
them as mandated by Section 5 of the said P.D. 1886. They contend that
without the immunity provided for by the second clause of Section 5, P.D.
1886, the legal compulsion imposed by the first clause of the same Section
would suffer from constitutional infirmity for being violative of the witness'
right against self- incrimination. 17 Thus, the protagonists are locked in horns
on the effect and legal significance of failure to set up the privilege against
self-incrimination.
The question presented before Us is a novel one. Heretofore, this Court has
not been previously called upon to rule on issues involving immunity statutes.
The relative novelty of the question coupled with the extraordinary
circumstance that had precipitated the same did nothing to ease the burden of
laying down the criteria upon which this Court will henceforth build future
jurisprudence on a heretofore unexplored area of judicial inquiry. In carrying
out this monumental task, however, We shall be guided, as always, by the
constitution and existing laws.
The Agrava Board, 18 came into existence in response to a popular public
clamor that an impartial and independent body, instead of any ordinary police
agency, be charged with the task of conducting the investigation. The then
early distortions and exaggerations, both in foreign and local media, relative
to the probable motive behind the assassination and the person or persons
responsible for or involved in the assassination hastened its creation and
heavily contributed to its early formation. 19
133
Although referred to and designated as a mere Fact Finding Board, the Board
is in truth and in fact, and to all legal intents and purposes, an entity charged,
not only with the function of determining the facts and circumstances
surrounding the killing, but more importantly, the determination of the person
or persons criminally responsible therefor so that they may be brought before
the bar of justice. For indeed, what good will it be to the entire nation and the
more than 50 million Filipinos to know the facts and circumstances of the
killing if the culprit or culprits will nevertheless not be dealt with criminally?
This purpose is implicit from Section 12 of the said Presidential Decree, the
pertinent portion of which provides —
SECTION 12. The findings of the Board shall be made public. Should the
findings warrant the prosecution of any person, the Board may initiate the
filing of proper complaint with the appropriate got government agency. ...
(Emphasis supplied)
The investigation therefor is also geared, as any other similar investigation of
its sort, to the ascertainment and/or determination of the culprit or culprits,
their consequent prosecution and ultimately, their conviction. And as
safeguard, the P.D. guarantees "any person called to testify before the Board
the right to counsel at any stage of the proceedings." 20 Considering the
foregoing environmental settings, it cannot be denied that in the course of
receiving evidence, persons summoned to testify will include not merely
plain witnesses but also those suspected as authors and co-participants in the
tragic killing. And when suspects are summoned and called to testify and/or
produce evidence, the situation is one where the person testifying or
producing evidence is undergoing investigation for the commission of an
offense and not merely in order to shed light on the facts and surrounding
circumstances of the assassination, but more importantly, to determine the
character and extent of his participation therein.
Among this class of witnesses were the herein private respondents, suspects
in the said assassination, all of whom except Generals Ver and Olivas, were
detained (under technical arrest) at the time they were summoned and gave
their testimonies before the Agrava Board. This notwithstanding, Presidential
Decree No. 1886 denied them the right to remain silent. They were compelled
to testify or be witnesses against themselves. Section 5 of P.D. 1886 leave
them no choice. They have to take the witness stand, testify or produce
evidence, under pain of contempt if they failed or refused to do so. 21 The
jeopardy of being placed behind prison bars even before conviction dangled
before their very eyes. Similarly, they cannot invoke the right not to be a
witness against themselves, both of which are sacrosantly enshrined and
protected by our fundamental law. 21-a Both these constitutional rights (to
remain silent and not to be compelled to be a witness against himself) were
right away totally foreclosed by P.D. 1886. And yet when they so testified
and produced evidence as ordered, they were not immune from prosecution
by reason of the testimony given by them.
Of course, it may be argued is not the right to remain silent available only to
a person undergoing custodial interrogation? We find no categorical
statement in the constitutional provision on the matter which reads:
... Any person under investigation for the commission of an offense shall have
the right to remain and to counsel, and to be informed of such right. ... 22
(Emphasis supplied)
Since the effectivity of the 1973 Constitution, we now have a mass of
jurisprudence 23 on this specific portion of the subject provision. In all these
cases, it has been categorically declared that a person detained for the
commission of an offense undergoing investigation has a right to be informed
of his right to remain silent, to counsel, and to an admonition that any and all
statements to be given by him may be used against him. Significantly
however, there has been no pronouncement in any of these cases nor in any
other that a person similarly undergoing investigation for the commission of
an offense, if not detained, is not entitled to the constitutional admonition
mandated by said Section 20, Art. IV of the Bill of Rights.
The fact that the framers of our Constitution did not choose to use the term
"custodial" by having it inserted between the words "under" and
investigation", as in fact the sentence opens with the phrase "any person "
goes to prove that they did not adopt in toto the entire fabric of the Miranda
doctrine. 24 Neither are we impressed by petitioners' contention that the use
of the word "confession" in the last sentence of said Section 20, Article 4
connotes the Idea that it applies only to police investigation, for although the
word "confession" is used, the protection covers not only "confessions" but
also "admissions" made in violation of this section. They are inadmissible
against the source of the confession or admission and against third person. 25
It is true a person in custody undergoing investigation labors under a more
formidable ordeal and graver trying conditions than one who is at liberty
134
while being investigated. But the common denominator in both which is
sought to be avoided is the evil of extorting from the very mouth of the person
undergoing interrogation for the commission of an offense, the very evidence
with which to prosecute and thereafter convict him. This is the lamentable
situation we have at hand.
All the private respondents, except Generals Ver and Olivas, are members of
the military contingent that escorted Sen. Aquino while disembarking from
the plane that brought him home to Manila on that fateful day. Being at the
scene of the crime as such, they were among the first line of suspects in the
subject assassination. General Ver on the other hand, being the highest
military authority of his co-petitioners labored under the same suspicion and
so with General Olivas, the first designated investigator of the tragedy, but
whom others suspected, felt and believed to have bungled the case. The
papers, especially the foreign media, and rumors from uglywagging tongues,
all point to them as having, in one way or another participated or have
something to do, in the alleged conspiracy that brought about the
assassination. Could there still be any doubt then that their being asked to
testify, was to determine whether they were really conspirators and if so, the
extent of their participation in the said conspiracy? It is too taxing upon one's
credulity to believe that private respondents' being called to the witness stand
was merely to elicit from them facts and circumstances surrounding the
tragedy, which was already so abundantly supplied by other ordinary
witnesses who had testified earlier. In fact, the records show that Generals
Ver and Olivas were among the last witnesses called by the Agrava Board.
The subject matter dealt with and the line of questioning as shown by the
transcript of their testimonies before the Agrava Board, indubitably evinced
purposes other than merely eliciting and determining the so-called
surrounding facts and circumstances of the assassination. In the light of the
examination reflected by the record, it is not far-fetched to conclude that they
were called to the stand to determine their probable involvement in the crime
being investigated. Yet they have not been informed or at the very least even
warned while so testifying, even at that particular stage of their testimonies,
of their right to remain silent and that any statement given by them may be
used against them. If the investigation was conducted, say by the PC, NBI or
by other police agency, all the herein private respondents could not have been
compelled to give any statement whether incriminatory or exculpatory. Not
only that. They are also entitled to be admonished of their constitutional right
to remain silent, to counsel, and be informed that any and all statements given
by them may be used against them. Did they lose their aforesaid constitutional
rights simply because the investigation was by the Agrava Board and not by
any police investigator, officer or agency? True, they continued testifying.
May that be construed as a waiver of their rights to remain silent and not to
be compelled to be a witness against themselves? The answer is yes, if they
have the option to do so. But in the light of the first portion of Section 5 of
P.D. 1886 and the awesome contempt power of the Board to punish any
refusal to testify or produce evidence, We are not persuaded that when they
testified, they voluntarily waived their constitutional rights not to be
compelled to be a witness against themselves much less their right to remain
silent.
Compulsion as it is understood here does not necessarily connote the use of
violence; it may be the product of unintentional statements. Pressure which
operates to overbear his will, disable him from making a free and rational
choice, or impair his capacity for rational judgment would in our opinion be
sufficient. So is moral coercion 'tending to force testimony from the unwilling
lips of the defendant. 26
Similarly, in the case of Louis J. Lefkowitz v. Russel 27 Turley" citing
Garrity vs. New Jersey" where certain police officers summoned to an inquiry
being conducted by the Attorney General involving the fixing of traffic
tickets were asked questions following a warning that if they did not answer
they would be removed from office and that anything they said might be used
against them in any criminal proceeding, and the questions were answered,
the answers given cannot over their objection be later used in their
prosecutions for conspiracy. The United States Supreme Court went further
in holding that:
the protection of the individuals under the Fourteenth Amendment against
coerced statements prohibits use in subsequent proceedings of statements
obtained under threat or removal from office, and that it extends to all,
whether they are policemen or other members of the body politic. 385 US at
500, 17 L Ed. 562. The Court also held that in the context of threats of
removal from office the act of responding to interrogation was not voluntary
and was not an effective waiver of the privilege against self- incrimination.
To buttress their precarious stand and breathe life into a seemingly hopeless
cause, petitioners and amicus curiae (Ex-Senator Ambrosio Padilla) assert
that the "right not to be compelled to be a witness against himself" applies
only in favor of an accused in a criminal case. Hence, it may not be invoked
135
by any of the herein private respondents before the Agrava Board. The Cabal
vs. Kapunan 28 doctrine militates very heavily against this theory. Said case
is not a criminal case as its title very clearly indicates. It is not People vs.
Cabal nor a prosecution for a criminal offense. And yet, when Cabal refused
to take the stand, to be sworn and to testify upon being called as a witness for
complainant Col. Maristela in a forfeiture of illegally acquired assets, this
Court sustained Cabal's plea that for him to be compelled to testify will be in
violation of his right against self- incrimination. We did not therein state that
since he is not an accused and the case is not a criminal case, Cabal cannot
refuse to take the witness stand and testify, and that he can invoke his right
against self-incrimination only when a question which tends to elicit an
answer that will incriminate him is profounded to him. Clearly then, it is not
the character of the suit involved but the nature of the proceedings that
controls. The privilege has consistently been held to extend to all proceedings
sanctioned by law and to all cases in which punishment is sought to be visited
upon a witness, whether a party or not. 29 If in a mere forfeiture case where
only property rights were involved, "the right not to be compelled to be a
witness against himself" is secured in favor of the defendant, then with more
reason it cannot be denied to a person facing investigation before a Fact
Finding Board where his life and liberty, by reason of the statements to be
given by him, hang on the balance. Further enlightenment on the subject can
be found in the historical background of this constitutional provision against
self- incrimination. The privilege against self- incrimination is guaranteed in
the Fifth Amendment to the Federal Constitution. In the Philippines, the same
principle obtains as a direct result of American influence. At first, the
provision in our organic laws were similar to the Constitution of the United
States and was as follows:
That no person shall be ... compelled in a criminal case to be a witness against
himself. 30
As now worded, Section 20 of Article IV reads:
No person shall be compelled to be a witness against himself.
The deletion of the phrase "in a criminal case" connotes no other import
except to make said provision also applicable to cases other than criminal.
Decidedly then, the right "not to be compelled to testify against himself"
applies to the herein private respondents notwithstanding that the proceedings
before the Agrava Board is not, in its strictest sense, a criminal case
No doubt, the private respondents were not merely denied the afore-discussed
sacred constitutional rights, but also the right to "due process" which is
fundamental fairness. 31 Quoting the highly-respected eminent
constitutionalist that once graced this Court, the former Chief Justice Enrique
M. Fernando, due process —
... is responsiveness to the supremacy of reason, obedience to the dictates of
justice. Negatively put, arbitrariness is ruled out and unfairness avoided. To
satisfy the due process requirement, official action, to paraphrase Cardozo,
must not outrun the bounds of reason and result in sheer oppression. Due
process is thus hostile to any official action marred by lack of reasonableness.
Correctly, it has been Identified as freedom from arbitrariness. It is the
embodiment of the sporting Idea of fair play (Frankfurter, Mr. Justice Holmes
and the Supreme Court, 1983, pp. 32-33). It exacts fealty "to those strivings
for justice and judges the act of officialdom of whatever branch "in the light
of reason drawn from considerations of fairness that reflect (democratic)
traditions of legal and political thought." (Frankfurter, Hannah v. Larche
1960, 363 US 20, at 487). It is not a narrow or '"echnical conception with
fixed content unrelated to time, place and circumstances."(Cafeteria Workers
v. McElroy 1961, 367 US 1230) Decisions based on such a clause requiring
a 'close and perceptive inquiry into fundamental principles of our society.
(Bartkus vs. Illinois, 1959, 359 US 121). Questions of due process are not to
be treated narrowly or pedantically in slavery to form or phrases. (Pearson v.
McGraw, 1939, 308 US 313).
Our review of the pleadings and their annexes, together with the oral
arguments, manifestations and admissions of both counsel, failed to reveal
adherence to and compliance with due process. The manner in which the
testimonies were taken from private respondents fall short of the
constitutional standards both under the DUE PROCESS CLAUSE and under
the EXCLUSIONARY RULE in Section 20, Article IV. In the face of such
grave constitutional infirmities, the individual testimonies of private
respondents cannot be admitted against them in ally criminal proceeding.
This is true regardless of absence of claim of constitutional privilege or of the
presence of a grant of immunity by law. Nevertheless, We shall rule on the
effect of such absence of claim to the availability to private respondents of
the immunity provided for in Section 5, P.D. 1886 which issue was squarely
raised and extensively discussed in the pleadings and oral arguments of the
parties.
136

Immunity statutes may be generally classified into two: one, which grants
"use immunity"; and the other, which grants what is known as "transactional
immunity." The distinction between the two is as follows: "Use immunity"
prohibits use of witness' compelled testimony and its fruits in any manner in
connection with the criminal prosecution of the witness. On the other hand,
"transactional immunity" grants immunity to the witness from prosecution
for an offense to which his compelled testimony relates." 32 Examining
Presidential Decree 1886, more specifically Section 5 thereof, which reads:
SEC. 5. No person shall be excused from attending and testifying or from
producing books, records, correspondence, documents, or other evidence in
obedience to a subpoena issued by the Board on the ground that his testimony
or the evidence required of him may tend to incriminate him or subject him
to penalty or forfeiture; but his testimony or any evidence produced by him
shall not be used against him in connection with any transaction, matter or
thing concerning which he is compelled, after having invoked his privilege
against self-incrimination, to testify or produce evidence, except that such
individual so testifying shall not be exempt from prosecution and punishment
for perjury committed in so testifying, nor shall he be exempt from demotion
or removal from office. (Emphasis supplied)
it is beyond dispute that said law belongs to the first type of immunity
statutes. It grants merely immunity from use of any statement given before
the Board, but not immunity from prosecution by reason or on the basis
thereof. Merely testifying and/or producing evidence do not render the
witness immuned from prosecution notwithstanding his invocation of the
right against self- incrimination. He is merely saved from the use against him
of such statement and nothing more. Stated otherwise ... he still runs the risk
of being prosecuted even if he sets up his right against self- incrimination.
The dictates of fair play, which is the hallmark of due process, demands that
private respondents should have been informed of their rights to remain silent
and warned that any and all statements to be given by them may be used
against them. This, they were denied, under the pretense that they are not
entitled to it and that the Board has no obligation to so inform them.
It is for this reason that we cannot subscribe to the view adopted and urged
upon Us by the petitioners that the right against self-incrimination must be
invoked before the Board in order to prevent use of any given statement
against the testifying witness in a subsequent criminal prosecution. A literal
interpretation fashioned upon Us is repugnant to Article IV, Section 20 of the
Constitution, which is the first test of admissibility. It reads:
No person shall be compelled to be a witness against himself. Any person
under investigation for the commission of an offense shall have the right to
remain silent and to counsel, and to be informed of such right. No force,
violence, threat, intimidation, or any other means which vitiates the free will
shall be used against him. Any confession obtained in violation of this section
shall be inadmissible in evidence. (Emphasis supplied)
The aforequoted provision renders inadmissible any confession obtained in
violation thereof. As herein earlier discussed, this exclusionary rule applies
not only to confessions but also to admissions, 33 whether made by a witness
in any proceeding or by an accused in a criminal proceeding or any person
under investigation for the commission of an offense. Any interpretation of a
statute which will give it a meaning in conflict with the Constitution must be
avoided. So much so that if two or more constructions or interpretations could
possibly be resorted to, then that one which will avoid unconstitutionality
must be adopted even though it may be necessary for this purpose to disregard
the more usual and apparent import of the language used. 34 To save the
statute from a declaration of unconstitutionality it must be given a reasonable
construction that will bring it within the fundamental law. 35 Apparent
conflict between two clauses should be harmonized. 36
But a literal application of a requirement of a claim of the privilege against
self- incrimination as a condition sine qua non to the grant of immunity
presupposes that from a layman's point of view, he has the option to refuse to
answer questions and therefore, to make such claim. P.D. 1886, however,
forecloses such option of refusal by imposing sanctions upon its exercise,
thus:
SEC. 4. The Board may hold any person in direct or indirect contempt, and
impose appropriate penalties therefor. A person guilty of .... including ...
refusal to be sworn or to answer as a witness or to subscribe to an affidavit or
deposition when lawfully required to do so may be summarily adjudged in
direct contempt by the Board. ...
Such threat of punishment for making a claim of the privilege leaves the
witness no choice but to answer and thereby forfeit the immunity purportedly
granted by Sec. 5. The absurdity of such application is apparent Sec. 5
137
requires a claim which it, however, forecloses under threat of contempt
proceedings against anyone who makes such claim. But the strong testimonial
compulsion imposed by Section 5 of P.D. 1886 viewed in the light of the
sanctions provided in Section 4,infringes upon the witness' right against self-
incrimination. As a rule, such infringement of the constitutional right renders
inoperative the testimonial compulsion, meaning, the witness cannot be
compelled to answer UNLESS a co-extensive protection in the form of
IMMUNITY is offered. 37 Hence, under the oppressive compulsion of P.D.
1886, immunity must in fact be offered to the witness before he can be
required to answer, so as to safeguard his sacred constitutional right. But in
this case, the compulsion has already produced its desired results the private
respondents had all testified without offer of immunity. Their constitutional
rights are therefore, in jeopardy. The only way to cure the law of its
unconstitutional effects is to construe it in the manner as if IMMUNITY had
in fact been offered. We hold, therefore, that in view of the potent sanctions
imposed on the refusal to testify or to answer questions under Sec. 4 of P.D.
1886, the testimonies compelled thereby are deemed immunized under
Section 5 of the same law. The applicability of the immunity granted by P.D.
1886 cannot be made to depend on a claim of the privilege against self-
incrimination which the same law practically strips away from the witness.
With the stand we take on the issue before Us, and considering the temper of
the times, we run the risk of being consigned to unpopularity. Conscious as
we are of, but undaunted by, the frightening consequences that hover before
Us, we have strictly adhered to the Constitution in upholding the rule of law
finding solace in the view very aptly articulated by that well-known civil
libertarian and admired defender of human rights of this Court, Mr. Justice
Claudio Teehankee, in the case of People vs. Manalang 38 and we quote:
I am completely conscious of the need for a balancing of the interests of
society with the rights and freedoms of the individuals. I have advocated the
balancing-of-interests rule in an situations which call for an appraisal of the
interplay of conflicting interests of consequential dimensions. But I reject any
proposition that would blindly uphold the interests of society at the sacrifice
of the dignity of any human being. (Emphasis supplied)
Lest we be misunderstood, let it be known that we are not by this disposition
passing upon the guilt or innocence of the herein private respondents an issue
which is before the Sandiganbayan. We are merely resolving a question of
law and the pronouncement herein made applies to all similarly situated,
irrespective of one's rank and status in society.
IN VIEW OF THE FOREGOING CONSIDERATIONS and finding the
instant petitions without merit, same are DISMISSED. No pronouncement as
to costs.
SO ORDERED.
Aquino, J., concurs (as certified by Makasiar, C.J.).
Abad Santos, J., is on leave.
Separate Opinions
MAKASIAR, C.J., concurring:
To admit private respondents' testimonies and evidence before the Fact-
Finding Board (FFB) against them in the criminal prosecution pending before
the Sandiganbayan, would violate their constitutional or human rights the
right to procedural due process, the right to remain silent, and the right against
self- incrimination.
That their testimonies and other evidence they submitted before the FFB in
these criminal cases are incriminatory, is confirmed by the very fact that such
testimonies and evidence were the very bases of the majority report of the
FFB recommending the prosecution of private respondents as accessories.
It should be stressed that the basic purposes of the right against self-
incrimination are (1) humanity or humanitarian reasons to prevent a witness
or accused from being coerced, whether physically, morally, and/or
psychologically, into incriminating himself, and (2) to protect the witness or
accused from committing perjury, because the first law of nature is self-
preservation.
138

The utilization in the prosecution against them before the Sandiganbayan of
the testimonies and other evidence of private respondents before the FFB
collides with Section 1, Section 17 and Section 20 of the Bill of Rights of the
1973 Constitution:
Section 1. No person shall be deprived of life, liberty or property
without due process of law, nor shall any person be denied the equal of the
laws.
xxx xxx xxx
Section 17, No person shall be held to answer for a criminal offense
without due process of law.
xxx xxx xxx
Section 20. No person shall be compelled to be a witness against
himself. Any person under investigation for the commission of an offense
shall have the right to remain silent and to counsel, and to be informed of
such right. No force, violence, threat, intimidation, or any other means which
vitiates the free will shall be used against him. Any confession obtained in
violation of this Section shall be inadmissible in evidence.
The Bill of Rights constitutes the reservation of the sovereign people against,
as well as the limitation on, the delegated powers of government. These rights
thus enshrined need no express assertion. On the contrary, the police and
prosecution officers of the country should respect these constitutional
liberties as directed in the recent decision in the Hildawa and Valmonte cases
(G.R. Nos. 67766 and 70881, August 14, 1985). The established
jurisprudence is that waiver by the citizen of his constitutional rights should
be clear, categorical, knowing, and intelligent (Johnson vs. Zerbst, 304 US
458, 464, cited in Abriol vs. Homeres, 84 Phil. 525 [1949] and in Chavez vs.
CA, 24 SCRA 663, 682-683).
The use of testimonies and other evidence of private respondents before the
FFB against them in the criminal cases subsequently filed before the
Sandiganbayan would trench upon the constitutional guarantees that "no
person shall be deprived of life, liberty, or property without due process of
law ... that "no person shall be held to answer for a criminal offense without
due process of law" and that (Section 17, Article IV, 1973 Constitution), that
"no person shall be compelled to be a witness against himself. ..." and that "
a person has the right to remain silent ..." (Section 20, Article IV, 1973
Constitution).
There can be no implied waiver of a citizen's right against self-incrimination
or of his right to remain silent.
Any such renunciation cannot be predicated on such a slender or tenuous reed
as a dubious implication. Otherwise, it would be easier to lose the human
rights guaranteed by the Bill of Rights than to protect or preserve them; it
would be easier to enslave the citizen than for him to remain free. Such a
result was never intended by the Founding Fathers.
The first sentence of Section 20 of the Bill of Rights stating that "no person
shall be compelled to be a witness against himself," applies to both the
ordinary witness and the suspect under custodial investigation.
In support of the rule that there can be no implied waiver of the right against
self-incrimination and all other constitutional rights by the witness or by the
accused, is the fact that the right against double jeopardy can only be
renounced by the accused if the criminal case against him is dismissed or
otherwise terminated with his express consent. Without such express consent
to the dismissal or termination of the case, the accused can always invoke his
constitutional right against double jeopardy.
If Section 5 of P.D. 1886 were interpreted otherwise, said section would
become a booby trap for the unsuspecting or unwary witness, A witness
summoned either by subpoena or by Invitation to testify before the FFB under
Section 5, cannot refuse, under pain of contempt, to testify or produce
evidence required of him on the ground that his testimony or evidence may
tend to incriminate or subject him to a penalty or forfeiture; because the same
Section 5 prohibits the use of such testimony or evidence which may tend to
incriminate him in any criminal prosecution that may be filed against him.
The law or decree cannot diminish the scope and extent of the guarantee
against self-incrimination or the right to remain silent or the right against
being held to answer for a criminal offense without due process of law, or
against deprivation of his life, liberty or property without due process of law.
139
As a matter of fact, numerous decisions culled by American jurisprudence
are partial to the rule that immunity statutes which compel a citizen to testify,
should provide an immunity from prosecution that is as co-extensive, as total
and as absolute as the guarantees themselves (Jones Law on Evidence,
Chapter XVIII, Section 863, pp. 1621-1623; Kastigar vs. US 1972, 406 US
441).
Even if the witness testified pursuant to an invitation, the invitation does not
remove the veiled threat of compulsion, because as stated in the Chavez case,
supra.
Compulsion as it is understood here does not necessarily connote the use of
violence; it may be the product of unintentional statements. Pressures which
operate to overbear his will, disable him from making a free and rational
choice, or impair his capacity for rational judgment would in our opinion be
sufficient. So is moral coercion attending to force testimony from the
unwilling lips of the defendant (Chavez vs. Court of Appeals, 24 SCRA 663,
679).
The summons issued to private respondents has been euphemistically called
as an invitation, instead of a subpoena or subpoena duces tecum, as a sign of
respect for the important and high positions occupied by private respondents.
But the effect of such an invitation thus worded is the same as a subpoena or
subpoena duces tecum. Precisely, the phraseology of Section 5 of P.D. 1886
entices the unsuspecting private respondents to testify before the FFB, by
dangling in the same Section 5 the assurance that their testimony or the
evidence given by them will not be used against them in a criminal
prosecution that may be instituted against them.
At the very least, their consent to testify was under such misapprehension.
Hence, there can be no clear, categorical, knowing and intelligent waiver of
the right to remain silent, against self-incrimination, against being held to
answer for a criminal offense without due process of law, and against being
deprived of life, liberty or property without due process of law under such
misapprehension.
In any event, Section 5 of P.D. 1886 creates a doubt, which doubt is
accentuated by the difference of opinion thereon among the counsels in these
cases and among members of this Court. And it is basic in criminal law that
doubts should be resolved liberally in favor of the accused and strictly against
the government.
The procedural due process both under Sections 1 and 17 of the Bill of Rights,
Article IV of the 1973 Constitution, simply means, in the language of Justice
Frankfurter, the sporting Idea of fair play. The FFB and its counsel did not
inform the private respondents herein of their right to remain silent and their
right against self-incrimination, and that their testimonies may be utilized
against them in a court of law, before they testified. This is not fair to them,
and hence, they were denied procedural due process.
It should be stressed that the FFB was merely a fact-finding agency for the
purpose of gathering all the possible facts that may lead to the Identity of the
culprit. Such testimonies may provide leads for the FFB, its counsels and
agents to follow up. The FFB and its counsels cannot rely solely on such
testimonies to be used against the private respondents in these criminal cases.
It should be recalled that the FFB had ample funds for the purpose of
accomplishing its object. As a matter of fact. it refunded several million pesos
to the government after it concluded its investigation. The Board and its
counsel could have utilized the said amount to appoint additional agents to
look for witnesses to the assassination. In this respect, the FFB counsel could
be faulted in not utilizing the funds appropriated for them to ferret out all
evidence that will Identify the culprit or culprits. The failure of the FFB's
counsel to use said funds reflects on the initiative and resourcefulness of its
counsel. He could prosecute private respondents on evidence other than their
testimony and the evidence they gave before the FFB.
As heretofore stated, the private respondents were compelled to testify before
the FFB whether by subpoena or by invitation which has the effect of a
subpoena as provided for in Section 5 of P.D. 1886; because private
respondents then believed, by reading the entire Section 5, that the testimony
they gave before the FFB could not be used against them in the criminal cases
subsequently filed before the Sandiganbayan. Because the Board was merely
a fact-finding board and that it was riot conducting a criminal prosecution the
private respondents were under the impression that there was no need for
them to invoke their rights to remain silent, against self-incrimination and
against being held for a criminal offense without due process of law.
It should be recalled that the counsel of the FFB after submitting the majority
report, refused to cooperate with the Tanodbayan in these cases with the
140
pompous declaration that, after submitting their majority report, he
automatically became functus oficio. Was his refusal to cooperate with, and
assist, the Tanodbayan in the prosecution of these cases, born of the
realization that the FFB majority report is as weak as it was precipitate? And
when the Tanodbayan has now his back to the wall, as it were, by the ruling
of the respondent Sandiganbayan excluding the testimonies and other
evidence of private respondents herein on the ground that the use of their
testimonies and other evidence will incriminate them, the FFB counsel,
without being requested by the Tanodbayan, now files a memorandum in
support of the position of the Tanodbayan. what is the reason for this turn-
about to save his report from the fire which they started with such
enthusiasm?
As above emphasized, it is the duty of the police and the prosecuting
authorities to respect their rights under the Constitution as we stated in the
recent Hildawa and Valmonte cases, supra.
The grant of immunity under Section 5 of P.D. 1886 would be meaningless
if we follow the posture of petitioners herein. Such a posture would be correct
if the phrase "after having invoked his privilege against self- incrimination"
were transposed as the opening clause of Section 5 to read a follows "After
having invoked his privilege against self-incrimination, no person shall be
excused from attending and testifying ... etc."
Said Section 5 has two clauses and contemplates two proceedings. The first
clause from "No person shall be excused ... etc." up to "penalty or forfeiture
refers to the proceeding before the FFB. The second clause after the semi-
colon following the word "forfeiture which begins with but his testimony or
any evidence produced by him shall not be used against him in connection
with any transaction, matter, or thing concerning which he is compelled, after
having invoked his privilege against self-incrimination to testify . refers to a
subsequent criminal proceeding against him which second clause guarantees
him against the use of his testimony in such criminal prosecution, but does
not immunize him from such prosecution based on other evidence.
The private respondents herein, if the contention of the prosecution were
sustained, would be fried in their own fat. Consequently, the petition should
be dismissed.
CONCEPCION, JR., J., concurring:
1. Let me preface my opinion by quoting from my dissent in Pimentel.
1
1. We are committed to the mandate of the Rule of Law. We resolve
controversies before Us without considering what is or what might be the
popular decision. No. We never do. We only consider the facts and the law.
Always the facts and the law.
2. The issue before Us is not I repeat not the guilt or innocence of Gen.
Fabian C. Ver, Major Gen. Prospero Olivas, and others for their alleged
participation in the assassination of former Senator Benigno S. Aquino, Jr.
3. The issue is: Are the testimonies given by them before the Agrava
Board admissible in evidence against them in their trial before the
Sandiganbayan?
4. The issue therefore is purely a question of law. It involves the
interpretation of Sec. 5, P.D. No. 1886 and calls for the application of the
Rule of Law.
5. Sec. 5, P.D. No. 1886 reads:
No person shall be excused from attending and testifying or from producing
books, records, correspondence, documents, or other evidence in obedience
to a subpoena issued by the Board on the ground that his testimony or the
evidence required of him may tend to incriminate him or subject him to
penalty or forfeiture; but his testimony or any evidence produced by him shall
not be used against him in connection with any transaction, matter or thing
concerning which he is compelled. after having invoked his privilege against
self-incrimination, to testify or produce evidence, except that such individual
so testifying shall not be exempt from prosecution and punishment for perjury
committed in so testifying, nor shall he be exempt from demotion or removal
from office.
6. This section means that any person who is invited or summoned to
appear must obey and testify as to what he knows. Even if the testimony tends
to incriminate him he must testify. Even if he claims his constitutional right
141
against self-incrimination, he still must testify. However, his testimony
cannot be used against him in any subsequent proceeding, provided that at
the time it is being presented, he invokes his privilege against self-
incrimination. His testimony, no matter what it may be, cannot in any way
cause him harm.
The only exception is if the testimony he gave is false, in which case he can
be prosecuted and punished for perjury. He may also be demoted or removed
from office.
7. The testimonies given by private respondents before the Agrava
Board are therefore not admissible against them in their trial before the
Sandiganbayan, having invoked their privilege against self-incrimination.
PLANA, J., concurring:
I would like to underscore some considerations underlying my concurrence:
1. According to the Constitution, no person shall be compelled to be a
witness against himself. But the law (PD 1886) which created the Agrava
Board decrees that no person shall be excused from testifying on the ground
of self- incrimination. If the law had stopped after this command, it would
have been plainly at variance with the Constitution and void. lt was to ward
off such a Constitutional infirmity that the law provided for immunity against
the use of coerced testimony or other evidence, an immunity which, to be
constitutionally adequate, must give at least the same measure of protection
as the fundamental guarantee against self-incrimination.
2. Presidential Decree 1886 was not intended either to restrict or
expand the constitutional guarantee against self-incrimination. On the one
hand, a law cannot restrict a constitutional provision. On the other hand, PD
1886 was adopted precisely to coerce the production of evidence that
hopefully would unmask the killers of Senator Aquino, although the
compulsory process is accompanied by "use" immunity.
3. It is argued that the right against self- incrimination must have been
invoked before the Agrava Board if the use of evidence given therein against
the witness in a subsequent criminal prosecution is to be barred. I did not
agree.
I fail to see why to preserve pursuant to law (PD 1886) one's constitutional
right against self-incrimination, one has to offer resistance to giving
testimony a resistance which the said law itself says is futile and cannot
prevail, as no witness by its specific injunction can refuse to testify.
4. The constitutional right against self-incrimination may be waived
expressly. It may also be waived impliedly by speaking when one has the
option to hold his tongue. Waiver by implication presupposes the existence
of the right to keep silent. Thus, when one speaks because the law orders him
to do so, his action is not really voluntary and therefore his testimony should
not be deemed an implied waiver of his constitutional right against self-
incrimination.
5. Presidential Decree 1886 does not give private respondents absolute
immunity from prosecution, It only bars the use against them of the evidence
that was elicited from them by the Agrava Board. If there are other evidence
available, private respondents are subject to indictment and conviction.
6. Moreover, the evidence given to the Agrava Board is not, in my
view, completedly immunized. What PD 1886 bars from use is only the
testimony of the witness who testified before the Agrava Board and whatever
was presented as part of his testimony, as such. PD 1886 could not have
intended to convert non-confidential official documents into shielded public
records that cannot be used as evidence against private respondents, by the
mere fact that they were admitted in evidence as part of private respondents'
testimony before the Agrava Board. In other words, evidence otherwise
available to the prosecution, such as official documents, do not become
barred just because they have been referred to in the course of the testimony
of private respondents and admitted in evidence as part of their testimony
They may still be subpoenaed and offered in evidence. Conceivably, some
objections might be raised; but the evidence will be unfettered by the
exclusionary rule in PD 1886.
ESCOLIN, J., concurring:
142
I concur in the dismissal of the petitions. The admission in evidence of the
testimonies of private respondents given before the Agrava Board would
constitute a violation of their right against self- incrimination guaranteed
under Section 20, Article IV of the Constitution. I subscribe to the majority
view that Section 5 of P.D. 1886 cannot be constitutionally tenable, unless a
grant of immunity is read into it vis-a-vis the compulsion it imposes upon a
witness to testify. Otherwise stated, Section 5 of P.D. 1886 should be
interpreted as an immunity statute, which, while depriving one of the right to
remain silent, provides an immunity from prosecution that is as co-extensive,
as total and as absolute as the guarantees themselves. (Jones Law on
Evidence, Chapter XVIII, Section 863, pp. 1621-1623, Kastigar v. U.S.,
1972, 406 US 441).
Clearly, this is how the private respondents understood the legal provision
under consideration. For ably assisted as they were by counsel, they would
not have allowed themselves to be deliberately dragged into what the Chief
Justice would call a "booby trap". Viewed from another angle, therefore, it
could not be truly said that private respondents had waived their right against
self- incrimination in a manner that is clear, categorical, knowing and
intelligent. (Johnson v. Zerbst, 304 US 458, 464, cited in Abriol v. Homeres,
84 Phil. 525 and Chavez v. CA, 24 SCRA 663).
GUTIERREZ, JR., J., concurring:
I concur in the majority opinion penned by Justice Serafin R. Cuevas and in
the pithy separate opinion of Justice Nestor B. Alampay but would like to add
some personal observations.
This case furnishes an opportunity to appreciate the workings of our criminal
justice system.
The prosecutions which led to this petition serve as a timely reminder that all
of us-civilian or military, layman or judge, powerful or helpless- need the Bill
of Rights. And should the time ever come when like the respondents we may
have to invoke the Constitution's protection, the guarantees of basic rights
must be readily available, in their full strength and pristine glory, unaffected
by what is currently popular or decreed and heedless of whoever may be
involved
In many petitions filed with this Court and lower courts, the military has often
been charged with riding roughshod over the basic rights of citizens. Officers
and enlisted men in the frontlines of the fight against subversion or rebellion
may, in the heat of combat, see no need to be concerned over such ,niceties"
as due process, unreasonable searches and seizures, freedom of expression,
and right to counsel. They are best reminded that these rights are not luxuries
to be discarded in times of crisis. These rights are the bedrock of a free and
civilized society. They are the reason why we fight so hard to preserve our
system of government. And as earlier stated, there may come times when we
may have to personally invoke these basic freedoms for ourselves. When we
deny a right to an accused, we deny it to ourselves.
The decision of the Court underscores the importance of keeping inviolate
the protections given by the Bill of Rights. Acts which erode or sacrifice
constitutional rights under seductive claims of preserving or enhancing
political and economic stability must be resisted. Any lessening of freedom
will not at all increase stability. The liberties of individuals cannot be
preserved by denying them.
The dividing line between legitimate dissent or opposition on one hand and
subversion or rebellion on the other may be difficult to pinpoint during
troubled times. The lesson of this petition is that those charged with
suppressing the rebellion and those who sit in courts of justice should ever be
vigilant in not lumping legitimate dissenters and rebels together in one
indiscriminate classification.
An abiding concern for principles of liberty and justice is especially
imperative in periods of crisis and in times of transition. And all persons from
the mighty to the lowy must be given the fullest measure of protection under
the Bill of Rights if our constitutional guarantees are to have any meaning.
In addition to the right against self- incrimination, of not being compelled to
be a witness against one's self, so ably discussed by Justice Cuevas in the
Court's opinion, I am constrained by considerations of basic fairness to vote
against granting the petition.
The private respondents were called to testify before the Agrava Commission.
The decree creating the commission stated that no person may refuse to attend
and testify or to produce evidence before it on the ground that what he says
143
or produces may incriminate him. But since the witness is compelled to give
all he knows or possesses in effect shorn by law of his right not to incriminate
himself the decree states that the evidence wrung from that witness may not
be used against him later. This is, simply speaking, what the petition is all
about.
The respondents may be prosecuted as indeed they have been prosecuted.
They may eventually be convicted if the evidence warrants conviction.
however, they may not be convicted solely on the evidence which came from
their own mouths or was produced by their own hands. The evidence must
come from other sources. It would be the height of unfairness and contrary to
due process if a man is required to state what he knows even if it would
incriminate him, is promised immunity if he talks freely, and is later
convicted solely on the testimony he gave under such a promise of immunity.
I believe that P.D. 1886 is the first Immunity Act to be enacted in the
Philippines. It may be relevant, therefore, to refer to American decisions
expounding on immunity statutes, more so when a comparison of P.D. 1886
with such statutes as the U.S. Immunity Act of 1954, 68 Stat. 745, 18
U.S.C.A. Section 3486, shows a similarity in the protection given by the
statutes.
The U.S. Immunity Act of 1954 was enacted to assist federal grand juries in
their investigati•ns of attempts to endanger the national security or defense
of the United States by treason, sabotage, espionage, sedition, seditious
conspiracy, and violations of various laws on internal security, atomic or
nuclear energy, and immigration and nationality. The law stated that a witness
shall not be excused from testifying or from producing books, papers, or other
evidence on the ground that it may tend to incriminate him or subject him to
a penalty or forfeiture. The statute then provides:
But no such witness shall be prosecuted or subjected to any penalty or
forfeiture for or on account of any transaction, matter, or thing concerning
which he is compelled, after having claimed his privilege against self-
incrimination, to testify or produce evidence nor shall testimony so compelled
be used as evidence in any criminal proceeding ... against him in any court.
The American statute provides immunity against prosecution, penalties, and
use of the testimony. P.D. 1886 is of more limited scope. Only the use of the
compelled testimony is proscribed. The witness may still be prosecuted but
the prosecution will have to look for evidence other than the words of the
accused given before the Agrava Commission.
In Brown v. Walker (161 U.S. 591) the U.S. Supreme Court was confronted
with the validity of the 1893 Immunity Act. Brown was subpoenaed to testify
before a grand jury investigating railroad anomalies. lie refused to testify on
grounds of self- incrimination, arguing that the Immunity Act compelling him
to testify was unconstitutional. The Court ruled that "(W)hile the
constitutional provision in question is justly regarded as one of the most
valuable prerogatives of the citizen, its object is fully accomplished by the
statutory immunity and we are therefore of opinion that the witness was
compellable to answer." In other words, the statutory immunity takes the
place of the invocation of the constitutional guarantee. There is no need at the
time of taking testimony to invoke the Fifth Amendment because it would be
denied any way and the witness would be compelled to testify. It would be
absurd to invoke a protection which cannot be availed of when compelled to
testify. The time to invoke the immunity is when the testimony is being used
contrary to the granted immunity. Protected by the statutory immunity, a
witness cannot even insist on his right to remain silent when testifying.
In Ullmann v. United States (350 U.S. 422), the court interpreted the
Immunity Act of 1954 and stated.
xxx xxx xxx
... Since that time the Court's holding in Brown v. Walker has never been
challenged; the case and the doctrine it announced have consistently and
without question been treated as definitive by this Court, in opinions written,
among others, by Holmes and Brandeis, Justices. See, e.g., McCarthy v.
Arndstein 226 U.S. 34, 42; Heike v. United States, 227 U.S. 131, 142. The
1893 statute has become part of our constitutional fabric and has been
included in substantially the same terms, in virtually all of the major
regulatory enactments of the Federal Government.' Shapiro v. United States,
335 U.S. 1, 6. For a partial list of these statutes, see, Id., 335 U.S. at pages 6-
7, note 4. Moreover, the States, with one exception a case decided prior to
Brown v. Walker have, under their own constitutions, enunciated the same
doctrine, 8 Wigmore, Evidence (3d ed.), 2281, and have passed numerous
statutes compelling testimony in exchange for immunity in the form either of
complete amnesty or of prohibition of the use of the compelled testimony.
For a list of such statutes, see 8 Wigmore, Evidence (3d ed.), 2281, n. 11 (pp.
144
478-501) and Pocket Supplement thereto, 2281, n. 11 (pp. 147-157).
(Emphasis supplied)
xxx xxx xxx
It is interesting to note how the American Supreme Court in Ullmann treated
the immunity not only against the use of the testimony (as under P.D. 1886)
but even against prosecution.
xxx xxx xxx
Petitioner, however, attempts to distinguish Brown v. Walker. He argues that
this case is different from Brown v. Walker because the impact of the
disabilities imposed by federal and state authorities and the public in general
such as loss of job, expulsion from labor unions, state registration and
investigation statutes, passport eligibility and general public opprobrium-is
so oppressive that the statute does not give him true immunity. This, he
alleges, is significantly different from the impact of testifying on the auditor
in Brown v. Walker, who could the next day resume his job with reputation
unaffected. But, as this Court has often held, the immunity granted need only
remove those sanctions which generate the fear justifying the invocation of
the privilege 'The interdiction of the other Amendment operates only here a
witness may possibly expose him to a criminal charge. But if the criminality
has already been taken away, the amendment ceased to apply.' Hale v. Henkel
201 U.S. 43, 67. Here, since the Immunity Act protects a witness who is
compelled to answer to the extent of his constitutional immunity, he has of
course, when a particular sanction is sought to be imposed against him, the
right to claim that it is criminal in nature. (Emphasis supplied).
In United States v. Murdock (284 U.S. 141), the court ruled that "the principle
established is that full and complete immunity against prosecution by the
government compelling the witness to answer is equivalent to the protection
furnished by the rule against compulsory self-incrimination.
P.D. 1886, being an immunity statute should not be given a strained or absurd
interpretation in order to achieve a certain result. If the immunity given by
the decree is equivalent to the protection furnished by the right against self-
incrimination, then, paraphrasing Justice Frankfurter in Ullmann, the same
protection given by one of the great landmarks in man's struggle to make
himself civilized must not be interpreted in a hostile or niggardly spirit,
xxx xxx xxx
... Too many, even those who should be better advised, view this privilege as
a shelter for wrongdoers. They too readily assume that those who invoke it
are either guilty of crime or commit perjury in claiming the privilege. Such a
view does scant honor to the patriots who sponsored the Bill of Rights as a
condition to acceptance of the Constitution by the ratifying States. The
Founders of the Nation were not naive or disregard ful of the interest of justice
...
I, therefore, join the majority in dismissing the petition.
DE LA FUENTE, J., concurring:
No person shall be compelled to be a witness against himself." 1 This basic
right against self- incrimination, which supplanted the inquisitorial methods
of interrogating the accused as practiced during the Spanish regime, has
become an indispensable part of our laws since 1900. Pursuant thereto, an
accused in a criminal case has the right not only to refuse to answer
incriminating questions but also to refuse to take the witness stand. He cannot
be compelled even to utter a word in his defense. 2 As stressed in Chavez vs.
Court of Appeals, 3 the rule may otherwise be stated as the constitutional
right of the accused to remain silent. " The accused can forego testimony 4
without any adverse implication drawn from his decision to do so, The burden
is on the State to establish the guilt of the accused beyond reasonable doubt;
the prosecution must look elsewhere for other "evidence independently and
freely secured," The rule forbids what has been considered as "the certainly
inhuman procedure of compelling a person 'to furnish the missing evidence
necessary for his conviction'." According to Justice Harlan, it was intended
"to shield the guilty and imprudent as well as the innocent and foresighted."
5 Transplanted in this country with the advent of American sovereignty 6 and
firmly imbedded in our fundamental law, 7 the said privilege against
compulsory self-incrimination, which is predicated on grounds of public
policy and humanity, 8 "is fundamental to our scheme of justice" 9 and is one
of the procedural guarantees of our accusatorial system.
145
1. As I see it, what the prosecution proposed to do in these cases was
to present, as evidence of the alleged accessorial acts of private respondents,
the transcripts of their respective testimonies before the Agrava Board.
Confronted by the apparent unwillingness of said respondents to be called to
the witness stand in subsequent criminal proceedings, the prosecution sought
to put into the record of these criminal cases (in lieu of private respondents'
testimonies) the said transcripts and other evidence given by them in the
course of their testimony before the Agrava Board. If allowed over and
despite private respondents' objection, this would be a clear infringement of
the constitutional guarantee that they can invoke in said criminal proceedings,
as all of them did. Since the prosecution cannot require said respondents to
testify in the criminal cases before the Sandiganbayan, it stands to reason that
it is equally disabled from indirectly compelling respondents to give evidence
against themselves by using their Agrava Board testimonies. The prosecution
must present evidence "derived from a legitimate source wholly independent
of the compelled testimony." 10
2. It is contended, however, that these self- incriminatory testimonies
were given voluntarily because they did not claim the constitutional
guarantee before or while giving testimony to the Agrava Board.
Voluntariness, I think. cannot be inferred simply from such failure to invoke
the privilege. There was no fair warning or notice to the declarant that his
testimony would be used against him if incriminatory, unless the privilege is
invoked beforehand or during his testimony. If they were properly warned
and still gave testimony without t invoking the privilege, then it would be
clear that they knowingly waived the privilege. Otherwise, it meant at the
most a willingness on their part to help the Agrava Board in its fact-finding
investigation without waiving (a) the immunity granted by law, and (b) the
constitutional guarantee against self- incrimination in case of subsequent
prosecution based on their self-incriminatory testimony. For waiver, it is
wellsettled, to be effective. "must be certain, unequivocal and intelligently,
understandably and willingly made. " 11 Mere submission to an illegal search
or seizure "is not consent or waiver of objection. 12 The prosecution has the
burden to prove otherwise. The same standard should be observed in self-
incrimination cases.
PD No. 1886 (as amended), which created that "independent ad hoc fact-
finding Board," vested it with "plenary powers to determine the facts and
circumstances surrounding the killing [of former Senator Aquino] and to
allow for a free, unlimited and exhaustive investigation into all aspects of said
tragedy." In consonance with these objectives, the law declared that the
privilege was unavailable to an Agrava Board "witness", as follows: "No
person shall be excused from attending and testifying or from producing other
evidence on the ground that his testimony or any evidence requested of him
may tend to incriminate him, " 13 etc. At the same time, the Board was
empowered to summarily hold and punish any person in direct contempt for
"refusal to be sworn or to answer as a witness," its judgment being "final and
unappealable."
Quite plainly, the constitutional right against compulsory self-incrimination
could not be invoked by Agrava Board witnesses, The privilege was
suspended or temporarily taken away for purposes of the investigation, in
order that the Board would have access to all relevant evidence and all
sources of information, not excluding compelled incriminatory statements of
probable and possible or potential defendants. An Agrava Board witness was,
under the terms of the quoted provision, placed in a dilemma: (1) to answer
truthfully all questions including those tending to be self-incriminatory, since
he cannot invoke the privilege; (2) to lie and become liable criminally for
perjury; and (3) to insist on his right to remain silent and be summarily
punished by the Board for direct contempt. It is plain that such a witness was
under compulsion to give self-incriminatory testimony. It was not voluntary.
Precisely because of its coerced nature (an infringement of his constitutional
right against self- incrimination), PD No. 1886 promised. in exchange or as a
substitute for the privilege, limited immunity (as provided in the next
succeeding clause, same section), to wit:
... but his testimony or any evidence produced by him shall not be used
against him in connection with any transaction, matter or thing concerning
which he was compelled, after having invoked his privilege against self-
incrimination, to testify or produce evidence. 14
Such immunity 15 would bar the prosecution's use against the witness of his
said testimony in subsequent criminal proceedings (wherein he is charged
with offenses related to his testimony). Nevertheless, this would not operate
to change the involuntary nature of his self- incriminatory testimony. As far
as the witness is concerned, it was "coerced", not freely given, because he
was not fully accorded the "liberty of choice." The law withheld his basic
freedom to choose between testifying and remaining silent without the risk
of being punished for direct contempt to forego testimony which could
possibly be to his detriment.
146

3. I cannot agree with the proposition that the privilege should be
invoked by the witness before or while giving testimony to the Agrava Board.
Section 5 should be reasonably construed and fairly applied to the cases at
bar, in the light of the accused's constitutional right against compulsory self-
incrimination. The formula of limited-immunity in-lieu-of-the-privilege
contained in said section rendered unnecessary or superfluous, the invocation
of the privilege before the Board. Under said formula, the witness was
deprived of the privilege to protect himself against inquisitorial interrogation
into matters that a targeted defendant or virtual respondent can keep to
himself in ordinary investigations or proceedings.
Even if the provision is susceptible of an interpretation in support of the
petitioner's stand, it appears that the time for invoking the privilege is not
clear enough or certain from the language of the law. Equally plausible and
logical is the contrary view that it may be invoked later on when it became
apparent that the prosecution intended to use the testimony given before the
Board to secure conviction of the declarant in the subsequent criminal
proceedings. The privilege cannot be deemed waived by implication merely
as a consequence of failure to claim it before the Board. It bears emphasis
that the right of an accused "witnesses" against compulsory self-incrimination
is predicated on the constitutional guarantee, not on the special law in
question.
3. In the United States, the generally accepted approach in Fifth
Amendment Cases (involving the constitutional guarantee under
consideration) was stated as follows in Johnson vs Zerbst:" 16 It has been
pointed out that 'courts indulge in every reasonable presumption against a
waiver of the fundamental rights and that we do not presume acquiescence in
the loss of such fundamental rights.'" Because, as Dean Griswold of Harvard
Law School (later, Solicitor General of the United States) eloquently puts it:
[T]he privilege against self-incrimination is one of the great landmark,s in
man's struggles to make himself civilized ... [W]e do not make even the most
hardened criminal sign his own death warrant, or dig his own grave ... We
have through the course of history developed a considerable feeling of the
dignity and intrinsic importance of the individual man. Even the evil man is
a human being. 17
In this jurisdiction, more than four decades ago, the late Justice Jose P.
Laurela nationalist, constitutionalist and eminent jurist, whose incisive and
authoritative opinions on constitutional questions are often cited by the bench
and the bar- voted to sustain a claim of the constitutional guarantee in
Bermudez vs. Castillo. 18 In his concurrence, he said inter alia:
(1) As between two possible and equally rational constructions, that
should prevail which is more in consonance with the purpose intended to be
carried out by the Constitution. The provision ... should be construed with the
utmost liberality in favor of the right of the individual intended to be secured.
...
(2) I am averse to the enlargement of the rule allegedly calculated to
gauge more fully the credibility of a witness if the witness would thereby be
forced to furnish the means for his own destruction. Unless the evidence is
voluntarily given, the policy of the constitution is one of protection on
humanitarian considerations and grounds of public policy...
(3) The privilege should not be disregarded merely because it often
affords a shelter to the guilty and may prevent the disclosure of wrongdoing.
Courts can not, under the guise of protecting the public interest and furthering
the ends of justice, treat a sacred privilege as if it were mere excrescence in
the Constitution. (Emphasis supplied; at page 493.)
In sum, considering the pertinent legal provisions and judicial
pronouncements as well as the climate prevailing when the private
respondents testified before the Agrava Board, I find it unavoidable to reach
the conclusion that they did so under legal, moral and psychological
compulsion. Their compelled testimonies before the Agrava Board cannot
thereafter be used against them in the cases at bar in view of the immunity
granted by P.D. No. 1886. They were not obliged to invoke then and there
the constitutional guarantee. If they did, that would have sufficed to afford
them adequate protection. If they did not, they could do so later on when the
Government prosecutors (in spite of the statutory grant of immunity) decided
in the subsequent criminal proceedings, to use against them their Agrava
Board testimonies. For, as earlier stated, there was no intelligent and knowing
waiver on their part of their constitutional right against self-incrimination.
Accordingly, and for other reasons well stated in the main separate
concurring opinions, I vote to dismiss the petitions.
147

ALAMPAY, J., concurring:
I vote for the dismissal of the petition in these consolidated cases.
What appears to be the basic and principal issue to which the consideration
of the Court is addressed to is the singular question of whether testimonies
adduced by the private respondents before the Ad Hoc Agrava Fact Finding
Board and sought to be introduced against them in the Sandiganbayan
wherein they have been accused were rightfully excluded as evidence against
them.
I find untenable the insistence of the petitioner Tanodbayan that the private
respondents should have claimed the right against self-incrimination before
the said Fact Finding Board and that having omitted doing so, the said
privilege afforded to them by law can no longer be invoked by them before
the Sandiganbayan.
The right claimed by private respondents rests on the fundamental principle
that no person shall be compelled to be a witness against himself as so stated
in our Constitution and from the fact that Section 5 of P.D. 1886 disallows
the use against him of such testimony or any evidence produced by him
before the said Fact Finding Board, except for perjury. Petitioner argues
however, that there was a waiver of this right to self-incrimination when
respondents proceeded to give their testimonies on various dates before the
Agrava Fact Finding Board without formally invoking on said occasions their
right against self-incrimination.
As private respondents could not have excused themselves from testifying
before said Board as clearly emphasized in the very first clause of Section 5
of P.D. 1886, and as at that point of time, there was no reason for the declarant
to anticipate or speculate that there would be any criminal charge or any
proceeding instituted against them, it would therefore, be unnatural and
illogical to expect that private respondents would even contemplate the need
of prefacing their declarations with an invocation before the Fact Finding
Board of their privilege against self-incrimination.
In fact for a declarant to announce his claim of the aforestated privilege prior
to or while testifying before said Fact Finding Board, would irresistibly create
an inference and convey an impression that said witness is burdened with his
own awareness that he stands already incriminated in some wrong. To insist
therefore, even in the absence yet of any proceeding against him, that the
witness invoke the said privilege before the Agrava Fact Finding Board,
would be obviously self-demeaning. Such an effect could not have been
intended by Section 5 of P.D. 1886, which was even meant to grant to the
witness a benefit rather than a burden. It is more reasonable therefore, to
conclude that the privilege against self-incrimination would be accorded to
said witness after he has invoked the same in a subsequent proceeding
wherein he has been charged of a wrong doing, except in a case for perjury.
It is only at such time when the necessity of invoking the mantle of the
privilege or the immunity afforded to him by law would arise.
It cannot also be rightfully concluded that private respondents had
intentionally relinquished or abandoned the said right which they claimed
before the Sandiganbayan. The fact that the issue of when and before what
forum should such claim to the right against self-incrimination be necessarily
presented has provoked much discussion and debate because of divergent
views. This has even prompted the submissions to the Court of opinions of
amicus curiae or friends of the court as to how Section 5 of Presidential
Decree 1886 should be construed and applied which are however different
from and contrary to the views expressed by the Justices of the
Sandiganbayan and other legal luminaries. These conflicting views negate the
proposition that there was an effective waiver made by the private
respondents of their rights.
It has earlier been stated by this Court that to be effective, such waiver must
be certain and unequivocal and intelligently, understandably and willingly
made. (Chavez vs. Court of Appeals, et al., 24 SCRA 663). In the same cited
case, it has been stated that courts indulge in every reasonable presumption
against waiver of fundamental constitutional rights and that we do not
presume acquiescence in the loss of fundamental rights (Citing Johnson vs.
Zerbst 304 U.S. 458, 464, 82 L. ed. 1461, 1466). Furthermore, whether the
alleged waiver is express or implied, it must be intentional. (Davison vs.
Klaess 20 N.E. 2d. 744, 748, 280 N.Y. 252; 92 CJS, 1058).
I find it difficult to accept that private respondents had at any time, ever
intended to relinquish or abandon their right against self-incrimination.
148

PATAJO, J., concurring:
I vote for the dismissal of the petition in these consolidated cases. Said
petitions do not merit being given due course and should be dismissed
outright.
I hold the view that the testimonies and evidence given before the Agrava
Board are inadmissible as evidence against those who testified or gave said
evidence irrespective of whether said persons were subpoenaed or invited. I
believe it is not a condition sine quo non to the non-admissibility of said
evidence that at the time they testified or gave evidence before the Agrava
Board that they had invoked their privilege against self-incrimination.
The Agrava Board was created as an independent ad hoc fact finding board
to determine all the facts and circumstances surrounding the assassination of
former Senator Benigno S. Aquino, Jr. on August 21, 1983. It was given
plenary powers to allow for a free, unlimited and exhaustive investigation
into all the aspects of said tragedy. It was given the power to issue subpoena
or subpoena duces tecum and "other compulsory processes" requiring the
attendance and testimony of witnesses and the production of any evidence
relative to any matter under investigation by said Board.
Those who have been subpoenaed to appear and testify or produce any
documentary evidence before the Board shall not be excused from testifying
or presenting evidence before said Board on the ground that their testimony
or evidence may tend to incriminate them or subject them to penalty or
forfeiture. I believe an invitation from the Board is as much a compulsory
process 1 to appear and testify before the Board as a subpoena and one
receiving said invitation cannot also excuse himself from appearing and
testifying before the Board. Petitioners appear to share this view when they
said in subparagraph (c), paragraph 7 of their petition in G.R. No. L-71208-
09.
(c) People were either invited or issued subpoenas, depending upon
their rank and office, to give testimony before the Board and among those
invited were respondents General Fabian C. Ver and Major General Olivas
while the rest of the military respondents were issued subpoenas.
Unquestionably, it was the intention of the decree creating the Board to
investigate the Aquino assassination to encourage all who have some
information on any "aspect of said tragedy" to furnish the Board said
information whether they are subpoenaed or issued other forms of
compulsory process such as an invitation and to do so without fear that what
they will say may be used against them. It is in this context that Section 5 of
PD No. 1886 should be viewed. When they testified before the Board, they
were given full assurance that whatever they say before the Board will not be
used against them. Only if they testify falsely that they may be prosecuted for
perjury. This is to prevent people from preventing the Board from finding out
the truth about the Aquino assassination by giving false leads or information
for ulterior reasons.
Actually Section 5 of PD No. 1886 falls under that category of statutes which
do not pronounce an entire immunity by forbidding punishment or
prosecution for any testimony or evidence given in connection with the
investigation of certain offenses more widely known as immunity statutes,
but merely prohibit in any criminal prosecution the use of the testimony of
the witness. Immunity statutes as well as statutes prohibiting the use of
testimony in any subsequent criminal prosecution have been the expedients
resorted for the investigation of many offenses, chiefly those whose proof or
punishment were otherwise impracticable because of the implication in the
offense itself of all who could bear useful testimony.
The expediency and practical utility of this mode of obtaining evidence may
as a measure of legislation, be open to argument. But the tradition of it as a
lawful method of annulling the privilege against self-incrimination is
unquestioned in English history." ignore on Evidence, Vol. III, p. 469.
Speaking of this kind of privilege of non-admission of testimony given by the
witness in subsequent prosecutions as allowed by the common law and
modified by subsequent statutes, State vs. Quarles 13 Ark 307, 311, said:
The privilege in question, in its greatest scope, as allowed by the common
law and no one, be he witness or accused, can pretend to claim it beyond its
scope at the common law never did contemplate that the witness might not
be proved guilty of the very crime about which he may be called to testify;
but only that the witness should not be compelled to produce the evidence to
prove himself guilty of that crime. His privilege, therefore, was not an
149
exemption from the consequences of a crime that he might have committed;
but only an exemption from the necessity of himself producing the evidence
to establish his own crime ... So long as it might be lawful to produce in
evidence against an accused party whatever he might before have voluntarily
said as a witness on a prosecution against another, there were no means by
which the privilege could be made available short of a claim by the witness
to be silent; and as that was the rule of the common law, this was the common-
law mode of making the privilege available. And that silence was but a mode
of making the privilege available, and was not of the essence of the privilege
itself, is conclusively proven by all that current of enlightened authority, to
which we yield our fullest assent, which holds that the privilege has ceased
when the crime has been pardoned, when the witness has been tried and
acquitted, or is adjudged guilty, or when the prosecution, to which he was
exposed, has been barred by lapse of time ... But the Legislature has so
changed the common-law rule, by the enactment in question in the
substitution of a rule that the testimony required to be given by the act, shall
never be used against the witness for the purpose of procuring his conviction
for the crime or misdemeanor to which it relates, that it is no longer necessary
for him to claim his privilege as to such testimony, in order to prevent its
being afterwards used against him. And the only question that can possibly
arise under the present state of the law, as applicable to the case now before
us, is as to whether our statutory regulations afford sufficient protection to
the witness, responsive to this new rule and to his constitutional guarantee
against compulsory self-accusation ...
Considering the objectives sought to be achieved by PD No. 1886 the
provision thereof making testimony and evidence given before the Board
inadmissible in evidence against the ones giving the same, provides
protection beyond that granted by the Constitutional provision against self-
incrimination, otherwise it will be constitutionally suspect. Counselman vs.
Hitchcock, 142 US 547, 35 L Ed 1110.
Of relevance are the observations of the District Court, N.D. Illinois, in
United States vs. Armour & Co., 112 Fed 808, 821, 822:
All of these immunity acts are relied upon by the individual defendants, and,
while expressed in, slightly varying language, they all mean the same thing,
and each of them is a substitute for the privilege contained in that clause of
the fifth amendment to the Constitution, reading:
'Nor shall any person be compelled in any criminal case to be a witness
against himself.'
This fifth amendment deals with one of the most cherished rights of the
American citizen, and has been construed by the courts to mean that the
witness shall have the right to remain silent when questioned upon any
subject where the answer would tend to incriminate him. Congress by the
immunity laws in question, and by each of them, has taken away the privilege
contained in the amended it is conceded in argument that this cannot be done
without giving to the citizen by way of immunity something as broad and
valuable as the privilege thus destroyed We are not without authority on this
question. By a previous act, Congress undertook to take away the
constitutional privilege by giving the citizen an equivalent, and the Supreme
Court held in the case of Counselman v. Hitchcock 142 U.S. 547, 12 Sup. Ct.
195, 35 I Ed., 1110, that the substitution so given was not an equivalent. Then,
at various times, the immunity acts in question were passed by Congress with
full knowledge that in furnishing a substitute for this great right of the citizen,
it must give something as broad as the privilege taken away. It might be
broader, but it could not be narrower.
Now, in my judgment, the immunity law is broader than the privilege given
by the fifth amendment, which the act was intended to substitute. The
privilege of the amendment permits a refusal to answer. The act wipes out the
offense about which the witness might have refused to answer. The privilege
permits a refusal only as to incriminating evidence. The act gives immunity
for evidence of or concerning the matter covered by the incident and the
evidence need not be self-incriminating. The privilege must be personally
claimed by the witness at the time. The immunity flows to the witness by
action of law and without any claim on his part. Brown v. Walker, 161 U.S.
591, 16 Sup. Ct. 644, 40 L. Ed. 819; Hale vs. Henkel (recently decided) 26
Sup. Ct. 370, 50 L. Ed. -; State v. Quarles 13 Ark. 307, quoted in 142 U.S.
567, 12 Sup. Ct. 199 (35 L. Ed. 1110); People Sharp, 107 N.Y. 427, 14 N.E.
319, 1 Am. St. Rep. 851; Brown v. Walker approved in Lamson v. Boyden,
160 I11. 613, 620, 621, 43 N.E. 781: People v. Butler, St. Foundry, 201 I11.
236, 248, 66 N.E. 349.
I am further of opinion that the immunity given by the act must be as broad
as the liabilities imposed by the act. The act calls upon the citizen to answer
any 'lawful requirement' of the Commissioner. 'Require' means to ask of right
and by authority. Webster's Dictionary. Tenn. Coal Co. v. Saller (C.C.) 37
150
Fed. 545, 547. Anything is a requirement by a public officer which brings
home to the person called upon that the officer is there officially and desires
compliance. 'Demand' and' require' are synonymous. Miller v. Davis, 88 Me.
454, 34 Atl. 265. The citizen may be punished for refusal to answer such
lawful requirement. I am of opinion that when the Commissioner of
Corporations, who has power to compel, makes his demand, it is the duty of
the witness to obey.
The contention has been made that in order to get immunity the citizen shall
wait until the compulsion becomes irresistible. That is the effect of the
government contention. I am not able to bring my mind to accept that
doctrine. If I am right in saying that immunity flows from the law l, without
any claim on the part of the defendant and at different times that has been
conceded here in argument then no act of any kind on his part which amounts
to a claim of immunity, which amounts to setting up a claim of immunity is
demanded by the law. The law never puts a premium on contumacy. A person
does not become a favored citizen by resistance to a lawful requirement. On
the contrary, the policy of the law favors the willing giving of evidence
whenever an officer entitled to make a demand makes it upon a citizen who
has no right to refuse. And it would be absurd and un-American to favor the
citizen who resists and places obstacles in the way of the government as
against the citizen who, with a full knowledge of the law, obeys without
resistance the demand of an officer who has the legal right to make the
demand for something which the citizen has no legal right to refuse. This,
then, is the proposition to which we are led. When an officer, who has a legal
right to make a demand, makes such demand upon a citizen who has no legal
light to refuse, and that citizen answers under such conditions, he answers
under compulsion of the law.
There is no merit then to the contention that private respondents should be
invoked the privilege against self-incrimination before the Agrava Board for
precisely PD No. 1886 had explicitly provided that the testimony of those
who testified before the Board can not be used against them. It will be a
meaningless act of supererogation to require that said witnesses before
answering any question addressed to them must invoke their privilege against
self-incrimination. The phrase "after having invoked his privilege against
self-incrimination" in Section 5 of PD No. 1886 to be consistent with the
intention of said decree, should refer to the time that the testimony of the
witness will be used against him in another proceeding, such as the cases now
pending before the Sandiganbayan. It could not refer to the proceedings
before the Agrava Board because no one is being accused before said Board
and no matter how self-incriminating the testimony of said witness is, he runs
no risk of being prejudiced, much less convicted by the Agrava Board. It is
in the prosecution of cases based on the report of said Board that the witness
should invoke his right against self-incrimination. These private respondents
did just that when they moved for the exclusion in evidence of their statement
before the Agrava Board. Any other interpretation would defeat the very
purpose of PD No. 1886.
TEEHANKEE, J., dissenting:
The majority decision is based on erroneous premises, viz. what the case at
bar presents a "novel question;" that "this Court has not been previously
called upon to rule on issues involving immunity statute" and is burdened
with the monumental task" of "laying the criteria ... (to) build future
jurisprudence on a heretofore unexplored area of judicial inquiry." 1 The fact
is that we have a wealth of settled jurisprudence and precedents, Philippine
and foreign, that control the determination of the simple issue at bar and call
for the setting aside of the exclusion order issued by respondent court
(Sandiganbayan) which wrongly rules as totally and absolutely inadmissible
the testimonies given by private respondents General Ver and Olivas and their
six co- respondents (all charged as accessories) as well as all the documents,
records and other evidence produced by them before the Fact-Finding Board,
notwithstanding that all were represented by counsel 2 and none of them
invoked the privilege or right against self- incrimination or made any claim
or objection at the time of his testimony before the Board that any question
propounded to him and which he willingly answered called for an
incriminating answer against himself.
The following vital considerations based on settled jurisprudence and
precedents show that respondent court acted with gross error and
misconception of the applicable principles of the right against self-
incrimination:
1. Respondent court grossly disregarded the settled guidelines laid
down for trial courts by this Court of Appeal vs. Paylo 3 thru Mr. Justice
J.B.L. Reyes, speaking for a unanimous Court, Chat
151
By so doing [ordering the exclusion of the proferred confessions of the two
accused upon a ground not raised by counsel but motu proprio by the trial
court, i.e. lack of independent proof of conspiracy] the [trial] court
overlooked that the right to objection is a mere privilege which the parties
may waive; and if the ground for objection is known and not seasonably
made, the objection is deemed waived and the [trial] court has no power, on
its own motion, to disregard the evidence (Marella vs. Reyes, 12 Phil. 1) ...
Suffice it to say that the lower court should have allowed such confessions to
be given in evidence at least as against the parties who made them, and admit
the same conditionally to establish conspiracy, in order to give the
prosecution a chance to get into the record all the relevant evidence at its
disposal to probe the charges. At any rate, in the final determination and
consideration of the case, the trial court should be able to distinguish the
admissible from the inadmissible, and reject what, under the rules of
evidence, should be excluded.
Trial courts should be liberal in the matter of admission of proof and avoid
the premature and precipitate exclusion of evidence on doubtful objections to
its admissibility, citing the Court's long-standing basic ruling and policy in
Prats & Co. vs. Phoenix Ins. Co. 4 that reception and admission of evidence
objected to on doubtful or technical grounds is ultimately the less harmful
course to either litigant, since the Supreme Court upon appeal would then
have all the materials before it necessary to make a correct judgment (instead
of returning the case for a new trial which only prolongs the determination of
the case); and
There is greater reason to adhere to such policy in criminal cases where
questions arise as to admissibility of evidence for the prosecution, for the
unjustified exclusion of evidence may lead to the erroneous acquittal of the
accused or the dismissal of the charges, from which the People can no longer
appeal 5
2. The right against self-incrimination is found in the first sentence of
section 20 of the Bill of Rights of the 1973 Constitution stating that "No
person shall be compelled to be a witness against himself." This single
sentence constituted the whole text of section 18 of the Bill of Rights of the
19,7,5 Constitution. This right against self-incrimination has a settled
meaning in jurisprudence which is fully applicable here since the right against
self-incrimination was first enforced here as an inviolable rule" in U.S.
President McKinley's instructions under date of April 7, 1900 to the Taft
Commission. 6 As recounted by the late Mr. Justice Conrado Sanchez as
ponente for a unanimous Court in the leading 1968 case of Chavez vs. Court
of Appeals 7, "Mr. Justice Malcolm, in expressive language, tells us that this
maxim was recognized in England in the early days 'in a revolt against the
thumbscrew and the rack.' An old Philippine case [1904] speaks of this
constitutional injunction as 'older than the Government of the United States;'
as having 'its origin in a protest against the inquisitorial methods of
interrogating the accused person;' and as having been adopted in the
Philippines 'to wipe out such practices as formerly prevailed in these Islands
of requiring accused persons to submit to judicial examinations, and to give
testimony regarding the offenses will which they were charged.' " But Mr.
Justice Sanchez equally stressed that "(an) accused occupies a different tier
of protection from an ordinary witness. Whereas an ordinary witness may be
compelled to take the witness stand and claim the privilege as each question
requiring an incriminating answer is shot at him, 8 an accused may altogether
refuse to take the witness stand and refuse to answer any and all questions."
9
As restated by Mr. Justice J.B.L. Reyes for a unanimous Court in Suarez vs.
Tengco, 10 "No legal impediment exists against a litigant calling any of the
adverse parties to be his witness. ... True, an accused in a criminal case may
not be compelled to testify, or to so much as utter a word, even for his own
defense (U.S. vs, Junio, 1 Phil. 50; U.S. vs. Luzon, 4 Phil. 344: U.S. vs.
Binayoh 35 Phil. 23; Sec. l(c), Rule 111, Rules of Court). But while the
constitutional guaranty against self-incrimination protects a person in all
types of cases, be they criminal, civil, or administrative (Art. 111, Sec. 1, No.
18, Phil. constitution: Bermudez vs. Castillo, 64 Phil, 483), said privilege in,
proceedings other than a criminal case against him who invokes it, is
considered an option of refusal to answer incriminating question, and not a
prohibition of inquiry.
Except in criminal cases, there is no rule prohibiting a party litigant from
utilizing his adversary as witness. As a matter of fact, section 83 of Rule 123,
Rules of Court expressly authorizes a party to call an adverse party to the
witness stand and interrogate him. This rule is, of course, subject to the
constitutional injunction not to compel any person to testify against himself.
But it is established that the privilege against self-incrimination must be
invoked at the proper time, and the proper time to invoke it is when a question
calling for a incriminating answer is propounded. This has to be so, because
before a question is asked there would be no way of telling whether the
152
information to be elicited from the witness is self-incriminating or not. As
stated in Jones on Evidence (Vol. 6, pp. 4926-4927), a person who has been
summoned to testify 'cannot decline to appear, nor can he decline to be sworn
as a witness' and 'no claim of privilege can be made until a question calling
for a incriminating answer is asked, at that time, and, generally speaking, at
that time only, the claim of privilege may properly be interposed.' (Gonzales
vs. Sec. of Labor, L-6409, February 5, 1954, 11 cit. in Navarro, Criminal
Procedure, p. 302.)'
Suarez was cited with favor and reaffirmed in Bagadiong vs. Gonzales, 12
wherein once again the Court, with the concurrence in the result of the now
Chief Justice, under similar facts held that the petitioner (provincial treasurer)
could not refuse to take the stand as an adverse party in a civil case since the
privilege against self-incrimination "in proceedings other than a criminal case
against him who invokes it, is considered an option to refuse to answer
incriminating questions, and not a prohibition of inquiry" and "must be
invoked when a question calling for an incriminating answer is propounded,
because before a question is asked, there would be no way of telling whether
the information to be elicited from the witness is self-incriminating or not."
The Court therein denied "the petition to prohibit respondent judge from
directing petitioner to take the witness stand and testify ... without prejudice
to petitioner's properly invoking the guaranty against self-incrimination when
questions are propounded to him on the stand. Costs against the petitioner."
3. All the respondents at bar were in this category of ordinary witnesses
in the hearings of the Fact-Finding Board. They were not accused in any
criminal case nor were they persons under custodial interrogation who under
the second part of section 20 of the Bill of Rights (consisting of three
additional sentences 13) were given additional rights to silence and counsel
and to be informed of such rights and to the out-lawing of any confession
obtained in violation of the rights guaranteed in the cited section, by virtue of
the incorporation into the Bill of Rights of the rights granted in the rulings of
the U.S. Supreme Court in the Miranda-Escobedo cases. As noted by former
Chief Justice Enrique M. Fernando, "(I)t amounts to an acceptance of the
applicability in this jurisdiction of the epochal American Supreme Court
decision in Miranda vs. Arizona, the opinion being rendered by Chief Justice
Warren. It is thus now a part of our fundamental law. Such doctrine was
promulgated in response to the question of the admissibility of statements
obtained from an individual interrogated under police custody, considering
that such a time and under the stress of such conditions, his right against self-
incrimination could be rendered futile." 14 The Miranda pronouncements
thus became necessarily a part and parcel of the additional rights granted in
the cited section 20, as made by the late U.S. Chief Justice Warren in the
Miranda case thus: "The prosecution may not use statements, whether
exculpatory or inculpatory, stemming from custodial interrogation of the
defendant unless it demonstrates the use of procedural safeguards effective to
secure the privilege against self-incrimination. By custodial interrogation we
mean 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. " 15 These additional Miranda rights could not be invoked
by respondents, as the members of the Fact-Finding Board were not law
enforcement officers nor were respondents under custodial interrogation.
As ordinary witnesses before the Fact-Finding Board and under the settled
jurisprudence above-cited, they could not invoke the right to silence and
refuse to take the witness stand. Their right and privilege (which is not self-
executory or automatic ipso jure) was, while testifying, whether voluntarily
or by subpoena, to invoke the privilege and refuse to answer as and when a
question calling for an incriminating answer is propounded. Failure to invoke
the privilege which is personal does automatically result in its loss ipso facto.
The law, usage and settled jurisprudence uniformly require that the privilege
must be asserted or else is lost. The court or board upon its invocation still
has to pass upon and rule upon the proper application of the privilege. As
restated by Francisco, the rule and exceptions are: "Certainly, where the
witness, on oath declares his belief that the answer to the question would
criminate or tend to criminate him, the court cannot compel him to answer,
unless it is clear perfectly, from a careful consideration of all the
circumstances of the case, that the witness is mistaken, or is acting in bad
faith, and that the answer cannot possibly have any such tendency. " 16
4. The view that withal, it is best, although not required, that a warning
to the witness of his option to refuse an answer to incriminating questions as
advanced even by the Tanodbayan at the hearing dates back to a century ago
and has been long discarded as "witnesses are usually well enough advised
beforehand by counsel as to their rights when such issues impend" and "as
general knowledge spread among the masses and the preparation for
testimony became more thorough." Thus, "ignore, the bible on the law of
evidence so remarks and adds that "there is no reason for letting a wholesome
custom degenerate into a technical rule." —
153
It is plausible to argue that the witness should be warned and notified, when
a incriminating fact is inquired about, that he has an option to refuse an
answer; and this view was often insisted upon, a century ago, by leaders at
the Bar,
xxx xxx xxx
But there are opposing considerations. In the first place, such a warning
would be an anomaly; it is not given for any other privilege; witnesses are in
other respects supposed to know their rights; and why not here? In the next
place, it is not called for by principle, since, until the witness refuses, it can
hardly be said that he is compelled to answer; nor is it material that he
believes himself compelled; for the Court's action, and not the witness' state
of mind, must be the test of compulsion. Again, the question can at any rate
only be one of judicial propriety of conduct, for no one supposes that an
answer given under such an erroneous belief should be struck out for lack of
the warning. Finally, in practical convenience, there is no demand for such
rule; witnesses are usually well enough advised beforehand by counsel as to
their rights when such issues impend, and judges are too much concerned
with other responsibilities to be burdened with the provision of individual
witnesses' knowledge; the risk of their being in ignorance should fall rather
upon the party summoning than the party opposing.
Nevertheless, it is plain that the old practice was to give such a warning, when
it appeared to be needed. But, as general knowledge spread among the
masses, and the preparation for testimony became more thorough, this
practice seems to have disappeared in England, so far at least as any general
rule was concerned.
In the United States, both the rule and the trial custom vary in the different
jurisdictions. No doubt a capable and painstaking judge will give the warning,
where need appears, but there is no reason for letting a wholesome custom
degenerate into a technical rule. 17
But from the environmental facts and circumstances of the Fact-Finding
Board hearings, to require such a warning to the witness of his option of
refusal to answer incriminatory questions would have been an exercise in
absurdity and futility, As is a matter of public knowledge, respondents had
concluded in their investigation that Galman was the assassin of the late
Senator Aquino. As observed by former Senator Ambrosio Padilla as amicus
curiae at the hearing on the merits of August 15, 1985, they were all too eager
to testify and make a strong effort to gain support from the Fact-Finding
Board and the public for the military version and report that the assassin was
Galman who was forthwith gunned down by the military escorts and guards
at the tarmac. It would have been ridiculous, if not bordering on officiousness
and impropriety, to warn them as the highest ranking military officers of their
option of refusal to answer incriminatory questions and also as the majority
holds, 18 of their right to remain silent. When respondents generals appeared
before the Board, respondent Ver precisely made the opening statement that
GENERAL VER:
I welcome this opportunity, Madame Justice, members of this Honorable
Board, Dean, Gentlemen this opportunity to assist ... this Honorable Board in
the quest for truth and justice, We all deplore this tragic incident which is
now the subject of inquiry, This Board, this Honorable Board is mandated to
conduct a free, full and exhaustive investigation into the matter under
investigation We all hope that my testimony, madame, will somehow dispel
any misconception, or any misinformation surrounding this tragic incident. I
am now ready to answer your questions.
JUSTICE AGRAVA:
Now, General, at the outset, we give the right and the privilege for every
witness to be assisted by counsel Do you have your counsel with you this
morning?
GENERAL VER:
I did not bring any counsel, madame, but ... if I need a counsel, madame, I
could probably look for... probably ...
JUSTICE AGRAVA:
Yes?
GENERAL VER:
I may call Fiscal Parena or the Public Coordinator. I was talking to Atty. Tan
to assist me, in the protection of my constitutional rights ...
154

JUSTICE AGRAVA:
Yes.
GENERAL VER:
... if it is necessary:
ATTY. TAN:
Your Honor, please, it is part of the function of this office to help the witness
if he doesn't have counsel, and so, if the General is willing to have me, I will
happily serve as counsel, Your Honor.
JUSTICE AGRAVA:
All right.
GENERAL VER:
Thank you. 19
Respondent Olivas likewise testified before the Board in response to its
invitation to assist it in determining the true facts and circumstances
surrounding the double killing.
6. The majority decision would go around this by asserting without
basis in the record that "(A)ll the private respondents, except Generals Ver
and Olivas, are members of the military contingent that escorted Sen. Aquino
while embarking from the plane that brought him home to Manila on that
fateful day. Being at the scene of the crime as such, they were among the first
line of suspects in the subject assassination. General Ver on the other hand,
being the highest military authority of his co-petitioners labored under the
same suspicion and so with General Olivas, the first designated investigator
of the tragedy, but whom others suspected, felt and believed to have bungled
the case. The papers, especially the foreign media, and rumors from ugly
wagging tongues, all point to them as having, in one way or another
participated or have something to do, in the alleged conspiracy that brought
about the assassination. Could there still be any doubt then that their being
asked to testify, was to determine whether they were really conspirators and
if so, the extent of their participation in the said conspiracy?" In fact, the
respondent court's decision and separate opinions as well as the majority
decision at bar and the separate concurring opinions all fail to specify the
particular portions of the testimonies of respondents or any specific question
and answer that can be in any way deemed to be self-incriminating. Indeed,
even if we assumed arguendo that they were warned of their right against
self-incrimination and tried absurdly to invoke the same, there is no specific
question and answer by way of testimony that could be pointed to them as
having been made under compulsion for the simple reason that their
testimony was in full support of their own military report that Galman was
Aquino's killer and for which they were trying to gain the Board's acceptance.
In the all too brief and inadequate deliberations held on August 20 and 21,
1985 after the hearing on the merits of August 15, 1985, without reaching a
definite conclusion, the ponente reported and I share this view from a cursory
examination, for want of material time, of the excluded testimonies only since
the excluded documents, records and other evidence produced by them were
not before the Court that there is nothing in the excluded testimonies that
could in any way be deemed self-incriminatory perse. So there would be no
legal basis whatever for their exclusion. But the ponente circulated only last
August 26th at noon his draft for dismissal of the petitions which were filed
only last month. And its release has been set for August 30th.
7. There has not been enough time to weigh and ponder on the far-
reaching consequences of the decision at bar. The decision orders the total
and unqualified exclusion of the testimonies and evidence produced before
the Fact-Finding Board by the eight respondents charged as accessories "even
though (they) failed to claim (their) privilege before giving the incriminating
testimony" (citing 21 Am. Jur. 2d. 218). But the cited compilation of
American State and Federal Law expressly cautions that "The question
whether a witness must claim exemption . on from self-incrimination to be
entitled to immunity from subsequent prosecution must in each case be
determined in the light of constitutional and statutory provisions in the
jurisdiction where the question arises" (21 Am. Jur. 2d. 151). It recites on the
same cited page that "Under a statute granting immunity to persons who have
been compelled to testify, one who has appeared voluntarily and testified
without claiming his privilege against self-incrimination or one who has
appeared and testified pursuant to a void subpoena or one addressed to
another person, without claiming the privilege, cannot say he has been
compelled to testify, and therefore, he is not entitled to immunity." And the
155
necessity of claiming the privilege against self-incrimination before an
administrative officer or board such as the Fact Finding Board is recognized
to be essential, thus:
This is not only equally true as for the case of testimony in a judicial trial, but
the explicitness is here even more essential, and particularly where the
administrative officer makes a general demand for documents or testimony
upon a broad class of topics. The reason is clear. The officer has testimonial
powers to extract a general mass of facts, or which some, many, or most will
certainly be innocent and unprivileged, some may be privileged
communications (e.g., between attorney and client) whose privilege remains
unaffected by the statute defining his powers, and some may be privileged as
self-incriminating but liable to become demandable by overriding this
privilege with a grant of immunity. Among these mass of facts, then, the
officer will seek those which are relevant to his administrative inquiry; he
cannot know which of them fall within one or another privilege in particular,
which of them tend to criminate at all, or to criminate a particular person; if
such facts are there, he may not desire or be authorized to exercised the option
of granting immunity so as to obtain them; his primary function and power is
to obtain the relevant facts at large, and his power to obtain a special and
limited class of facts by grant of immunity is only a secondary one, and one
which he will not exercise till a cause arises, if even then.
For these reasons of practical sense, then, as well as for the inherent
requirements of principle already noticed for judicial officers, it is
particularly true for an inquiry by an administrative officer that the witness
must explicitly claim his privilege, and specifically the privilege against self-
incrimination, and must then be overridden in that claim, before immunity
can take effect. (VII Wigmore on Evidence, 2282, pp. 517-518)
The concurrence of Justice Vera Cruz sounds even more ominous thus:
I believe that where evidence is produced by a witness in accordance with the
conditions of the statute granting immunity such as P.D. No. 1886, as
amended, its immunity provisions attach instantly and it is entirely immaterial
what use the investigation authority makes of it (People ex rel. Massarsky v.
Adams, 47 N.Y.S. 2d 375, 62 N.E. 2d 244).
Consequently, the evidence, given before the Agrava Board by the accused
in the instant cases namely, Generals Fabian Ver and Prospero Olivas, and
Sergeants Pablo Martinez, Tomas Fernandez, Leonardo Mojica, Pepito Torio,
Prospero Bona and Aniceto Acupido cannot be used against them and this
proscription did attach instantly when they testified before the same Board.
Verily, the prohibition stands, irrespective of the purpose for which the
prosecution would like to use this evidence.
The total and unqualified exclusion of the testimony and evidence granted by
respondent court and sustained by the majority decision herein refers
expressly to the eight respondents charged as accessories. Would not this
unprecedented grant of immunity and exclusion of testimony be now claimed
by the rest of the twenty-two accused charged as principals except for the
lone civilian? As reported by the press, respondent court has suspended its
trial and placed the pressure on the Court to rush its decision, as "(T)he so-
called 'trial of the century' has been delayed since last week on motion of the
defense panel which had argued that the high court's decision on the
admissibility of Ver's testimonies was a vital prerequisite to the presentation
of witnesses for the defense. " 20 Would this not result in the People holding
an empty bag of excluded testimonies and evidence, since to all intents and
purposes all respondents-accused testified before the Fact-Finding Board?
Would their testimonies be inadmissible for purposes even of impeaching
such testimony as they may now give before respondent court? These
ponderous questions need not confront us had we but required respondent
court to hew to the settled procedure and doctrine of Yatco (supra, par. I
hereof) of giving the prosecution a chance to get into the record its relevant
evidence until the final determination and consideration of the case, for the
unjustified exclusion of evidence of the prosecution may lead to the erroneous
acquittal of the accused or dismissal of the charges, from which the People
can no longer appeal.
8. The alleged "ambiguous phraseology" of section 5 of P.D. 1886
cited in respondent court's questioned order and bolstered by the majority
decision's "novel" conclusion and ruling that the cited section quoted therein
21 requires a claim from the witness of the privilege against self-
incrimination but "forecloses under threat of contempt proceedings [under
section 4] against anyone who makes such a claim. But the strong testimonial
compulsion imposed by section 5 of P.D. 1886 viewed in the light, of the
actions provided in section 4, infringes upon the witness' right against self-
incrimination. As a rule, such infringement of the constitutional right renders
inoperative the testimonial compulsion, meaning, the witness cannot be
compelled to answer UNLESS a co-extensive protection in the form of
156
IMMUNITY is offered. Hence, under the oppressive compulsion of P.D.
1886, immunity must in fact be offered to the witness before he can be
required to answer, so as to safeguard his sacred constitutional right. But in
this case, the compulsion has already produced its desired results the private
respondents had all testified without offer of immunity. Their constitutional
rights are, therefore, in jeopardy. The only way to cure the law of its
unconstitutional effects is to construe it in the manner as if IMMUNITY had
in fact been offered. We hold, therefore, that in view of the potent sanctions
imposed on the refusal to testify or to answer questions under Sec. 4 of P.D.
1886, the testimonies compelled thereby are deemed immunized under
Section 5 of the same law. The applicability of the immunity granted by P.D.
1886 cannot be made to depend on a claim of the privilege against self-
incrimination which the same law practically strips away from the witness. "
Emphasis supplied).
It bears emphasis that none of respondents made any such claim against self-
incrimination. The "oppressive compulsion" if it may be so-called, consists
of a maximum penalty of P200. fine and/or 30 days imprisonment for direct
contempt. As indicated, it would be ridiculous for any respondent to 1 make
such claim when his testimony was but in full support of their own military
theory and report that Galman killed Aquino.
The language of the cited section 22 is plain and simple. It excuses no one
from testifying and producing books and records but grants him immunity
from prosecution (except for perjury) after having invoked his privilege
against self-incrimination " There is nothing oppressive about such
compulsion in exchange for immunity provided the witness invokes his and
aims his privilege a against self-incrimination.
In the Court's Resolution of July 9, 1985, Mr. Justice Aquino, voting to
dismiss outright the petitions. opined that The clause 'concerning which lie is
compelled to testify after having invoked his privilege against self-
incrimination' is surplusage. It is in conflict with the first clause which, as
already stated, gives immunity to the witness except in case of perjury. So,
section 5 should be read as if that clause were not there.This is contrary to the
rules of statutory construction that there is no room for construction when tile
text is plain and simple, i.e. requires invocation and that the provisions must
be taken in context and all the words taken into account and given their full
meaning. The Anti-Gambling Law, Act No. 1757, enacted on October 9,
1907 by the Philippine Commission (probably the first Philippine immunity
statute) granted such absolute immunity and does not contain the conditional
clause requiring that the witness invoke his privilege against self-
incrimination. Section 10 of the cited Act reads:
Sec. 10. Upon any investigation or proceeding for violation of this Act no
person shall be excused from giving testimony upon the ground that such
testimony would tend to convict him of a crime, but such testimony cannot
be received against him upon any criminal investigation or proceeding;
Provided, however, That no person so testifying shall be exempt from
prosecution or punishment for perjury committed in the course of any
proceeding or investigation had by virtue of [his Act. (1 CPS [Rev. Ed.], 190)
But when the statute grants conditional immunity (and not absolute as in the
above-quoted section 10 of the Anti-Gambling Act.), then it explicitly
contains the cited conditional clause in section 5 of P.D. 1886 granting
immunity only when "he is compelled to testify after having invoked his
privilege against self-incrimination. "
This is but in accord with long-settled Philippine jurisprudence cited above
(supra. paragraph 2 hereof), that the witness has an option of refusal to answer
incriminatory questions, which he loses ipso facto if he does not invoke the
privilege and nevertheless answers the questions. Here, in review of the
national and international importance of the case with the country's very
prestige at stake, the P.D. added the incentive of offering immunity: "The
purpose of immunity provisions is to aid prosecuting officers by inducing
criminals or their confederates to turn state's evidence and tell on each other,
to enable prosecuting officers to procure evidence which would otherwise be
denied to them because of the constitutional right against self-incrimination,
and at the same time to protect every person from gluing testimony which
directly or indirectly would be helpful to the prosecution in securing an
indictment or a conviction. The provisions for immunity are or should be as
broad as or co-extensive with the constitutional provisions granting the
privilege against self-incrimination." (21 Am. Jur. 2d. Criminal Law, sec.
148). It is bad enough that no state's evidence turned up to tell on his
confederates in exchange of immunity. But to call the cited section " a booby
trap for the unsuspecting or unwary witness" unless it was construed as
granting absolute and unconditional immunity from the very fact of merely
testifying as a witness before the Board without claiming immunity nor
giving any incriminatory information that would aid the state to determine
the true facts about Aquino's assassination would be a sell-out. It would make
157
a shambles of the letter and spirit as well as the salutary intent and objective
of the Decree to ferret out the truth and obtain state witnesses.
9. The truncated and distorted reading of the cited section 5 which
consists of a single integrated paragraph and splitting it into two isolated parts
so as to allow the privilege against self-incrimination (which was already lost
for failure to claim it in the Board hearings) to be resurrected and raised in a
much later time frame and "subsequent criminal proceeding" is against all
usage and rules of statutory construction, not to mention the long line of
above-cited jurisprudence to the contrary. And if there still be doubt, we need
only reproduce hereunder the similar wording of Senate Joint Resolution 137
(Public Law 88-202) after which section 5 of P.D. 1886 was patterned. Said
law was enacted by the U.S. Congress in December 1963 to empower the
Warren Commission to issue subpoenas requiring the testimony of witness
and the production of evidence relating to any matter under its investigation.
The Report of the President's Commission on the Assassination of President
John F. Kennedy in its foreword on page X stated that "In addition, the
resolution authorized the Commission to compel testimony from witnesses
claiming the privilege against self-incrimination under the fifth amendment
to the U.S. Constitution by providing for the grant of immunity to persons
testifying under such compulsion." (Emphasis supplied). The cited Public
Law reads:
(e) No person shall be excused from attending and testifying or from
producing books, records, correspondence, documents, or other evidence in
obedience to a subpoena, on the ground that the testimony or evidence
required of him may tend to incriminate him or subject him to a penalty or
forfeiture but no individual shall be prosecuted or subjected to any penalty or
forfeiture (except demotion or removal from office) for or on account of any
transaction matter, or thing concerning which he is compelled, after having
claimed his privilege against self-incrimination to testify or produce
evidence, except that such individual so testifying shall not be exempt from
prosecution and punishment for perjury committed in so testifying.
(Emphasis supplied).
10. As already indicated above, none of the respondents, public and
private, has indicated the specific portions of their testimony that they have
been "oppressively compelled" to glue, in alleged violation of their privilege
against self-incrimination. The reason for this is that they all testified
voluntarily and eagerly to support the military report and version that Galman
killed Senator Aquino. The Board unanimously rejected the military report
and found that the killings were the product of criminal conspiracy. A brief
flashback is herein appropriate: Within 60 seconds from his being led away
by soldiers from his plane that had just landed at the Manila International
Airport on Sunday, August 21, 1983 at past one p.m., former Senator Benigno
S. Aquino, Jr. who was coming home after three years of self-exile in the U.S.
laid dead face down on the tarmac, with his brain smashed by a bullet fired
point blank into the back of his head by a murderous assassin. 23 Also lying
dead on the tarmac, face up, near the senator was another man, to be Identified
much later as Rolando Galman, whom the soldiers admittedly gunned down.
The military pointed to him as Aquino's assassin, who had somehow
allegedly penetrated the air-tight security of close to 2000 men ringing the
airport. The military version met with great public disbelief and skepticism.
The first fact-finding commission created under Administrative Order No.
469 dated August 24, 1983 and P.D. 1879 dated August 27, 1983 was the
object of several suits charging bias and that the President "had already
prejudged the case, by rejecting the version of foreign media that it is one of
the soldiers, supposed to guard Aquino, who fatally shot him." 24 The said
commission was dissolved per P.D. 1886, dated October 14, 1983 (later
amended by P.D. 1903 dated February 8, 1984) which created the ad hoc
Fact-Finding Board with plenary powers to investigate "the treacherous and
vicious assassination (which) has to all Filipinos become a national tragedy
and national shame ... (and) to determine the facts and circumstances
surrounding the killing and to allow for a free, unlimited and exhaustive
investigation into all the aspects of said tragedy." The Board after extensive
hearings, submitted to the President their majority report on October 24,
1984, while the chairman former Court of Appeals Justice Corazon Agrava
submitted her minority report one day earlier on October 23, 1984. All five
members of the Board unanimously rejected the official military version that
Galman was the assassin and instead found that there was criminal
conspiracy. Their main difference of opinion is that the four-member majority
found twenty-five military men (headed by respondents Generals Ver, Olivas
and Luther Custodia) and one civilian "indictable for the premeditated killing
of Senator Benigno S. Aquino, Jr. and Rolando Galman at the MIA on August
21, 1983." The chairman's report confined the conspiracy to seven men
headed by General Custodia. The Tanodbayan, after conducting the
preliminary investigation, adopted the Board's majority report recommending
the indictment of the accused as "involved in this conspiracy, either as
principals, upon the theory that the act of one is the act of all, or as
accessories, for attempting to hide the corpus of the offense." The eight
158
accessories so indicted are the private respondents herein named headed by
respondents Ver and Olivas. (The chairman in her minority report had found
that "(T)he indications are that the plotters had agreed that only one would be
the assassin; that the others can either point to Galman as the killer; or they
can state that they did not see the shooting; and that they will give false
testimony to mislead and confuse.
11. Only the former lawyers of the Fact-Finding Board created under
P.D. No. 1886, consisting of Messrs. Andres R. Narvasa, Bienvenido A. Tan,
Jr., Mario E. Ongkiko and Francisco A. Villa have given us the answer that
there is nothing incriminatory per se in the testimonies of the respondents, in
the Memorandum submitted by them, to wit:
I. The so-called 'Galman Theory that it was Rolando Galman who
killed Senator Aquino is either true or untrue, a matter the
SANDIGANBAYAN will have to resolve.
II. If the 'Galman Theory' be true as advocated by the military officers
concerned then the testimony of Ver, et al. is true. It is not self-incriminatory.
There would then be no reason to exclude it.
If, on the other hand, the theory be untrue as the prosecution in turn advocates
then the testimony of Ver, et al. is untrue. It is incriminatory of them, because
by giving it and thereby seeking to hide the crime, they incriminated
themselves. Withal there would also be no reason to exclude it. Surely, after
their plot to deceive the Board had been exposed, they should not now be
allowed to use the law to bring about exclusion of the very proof of their
deception.
In short, the testimonies of respondents could only be deemed incriminating
if it be found that they sought thereby to hide or cover up the crime and thus
incriminate themselves, as accessories to the murder of Senator Aquino. The
former Fact-Finding Board lawyers amplify their theory, as follows:
5. The plain language of Section 5, PD 1886 precludes its
interpretation as extending immunity to all testimony or evidence produced
before the Board in obedience to subpoena regardless of whether the witness
giving such evidence invokes the privilege against self-incrimination or not.
—
6. The fact is, the invocation by Ver, et al. of such right would have
been self-defeating first, it would have prevented them from presenting
evidence in substantiation of the 'Galman Theory,' which they wished the
Board to accept; and second, it might have exposed to some extent their real
objective, which was to deceive the Board.
7. It would have been incongruous for Ver, et al. to have claimed that
their testimony would incriminate them as accessories to the murder of
Aquino when they were, by testifying, actually in process of committing that
precise crime, becoming accessories.
8. Neither PD 1886 nor the Constitution should be used as a shield for
crime, fraud or trickery.
9. The foregoing propositions were ignored by the
SANDIGANBAYAN. Instead, with all due respect, it has —
a. given Section 5, PD 1886 a strained construction not justified by and
contrary to its plain language;
b. given Section 20, Article IV, Constitution, a meaning at odds with
its plain terms and contrary to relevant decisions of this Honorable Supreme
Court; and
c. sanctioned the use of legal provisions to shield persons from
criminal liability arising from their perfidious testimony before the Fact-
Finding Board.
There is no legal ground nor justification for the exclusion order. It is for
respondent court, upon consideration of the evidence for the People, without
any exclusion, and of the evidence for the defense in due course, to render its
verdict of guilty or not guilty.
With a word of commendation for the former Fact-Finding Board lawyers
and former Senator Ambrosio Padilla and Atty. Ramon Gonzales, whose
memoranda as amid curiae, have been of great assistance, I vote, accordingly,
to grant the petitions at bar and to set aside the questioned exclusion order.
159
MELENCIO-HERRERA, J., dissenting:
I vote to grant the Petitions and to reverse the ruling of the Sandiganbayan.
The resolution of the issue revolves around the interpretation to be given to
Sec. 5 of PD No. 1886, reading as follows:
SEC. 5. No person shall be excused from attending and testifying or from
producing books, records, correspondence, documents, or other evidence in
obedience to a subpoena issued by the Board on the grounds that his
testimony or the evidence required of him may tend to incriminate him or
subject him to penalty or forfeiture; but his testimony or any evidence
produced by him shall not be used against him in connection with any
transaction, matter, or thing concerning which he is compelled, after having
invoked his privilege against self-incrimination, to testify or produce
evidence, except that such an individual so testifying shall not be exempt
from prosecution and punishment for perjury committed in so testifying, nor
shall he be exempt from demotion or removal from office. (Emphasis
supplied)
As I read the law, Section 5 does not require that the person testifying before
the Agrava Fact Finding Board (the Board, for short) shall first invoke the
privilege against self-incrimination. Under said statute it is obvious that he
has no such privilege.
But what is the effect of the second part providing that his testimony or any
evidence produced by him shall not be used against him in connection with
any transaction, matter or thing concerning which he is compelled, after
having invoked his privilege against self-incrimination, to testify or produce
evidence, except in case of perjury?
To my mind, the above portion does not grant to a person who has testified
before the Board absolute or total immunity. It should not operate as a shield
against criminal liability specially since, under Section 12 of the same
Decree, the Board may initiate the filing of the proper complaint if its finding
so warrant. Thus,
SEC. 12.The findings of the Board shall be made public. Should the findings
warrant the prosecution of any person the Board may initiate the filing of the
proper complaint with the appropriate government agency. ... (Emphasis
supplied)
The inquiry before the Board was a general one. It was not directed against
any particular individual or individuals. Private respondents did not testify
therein as suspects or as accused persons. There should therefore be no
hindrance to a criminal prosecution.
It has been held that where an inquiry by a grand jury is a general one and is
not directed against a particular individual the fact that on the basis of the
information elicited, grounds for a criminal prosecution may evolve against
a witness, may not serve as a bar to such prosecution (U.S. v. Okin D.C.N.J.,
154 F. Supp. 553; Benson v. Goldstein, 124 N.Y.S. 2d 452) even though he
testified before the grand jury without being warned of his constitutional
privileges against self- incrimination. (U.S. v. Okin supra) (Emphasis
supplied)
The right against self incrimination is not a prohibition of inquiry but an
option of refusal to answer incriminating questions Cabal vs. Kapunan, 6
SCRA 1059 [1962]). The kernel of the privilege is testimonial compulsion.
Whether or not any specific portion of the testimonies of private respondents
is incriminating should be determined by the Sandiganbayan itself. The claim
against self-incrimination should be invoked when a specific question, which
is incriminating in character, is put to a witness in the subsequent proceeding.
There should be no automatic "immunity bath" of the entire testimony before
the Board for immunity does not extend to such of the evidence as is not
privileged.
... But it is established that the privilege against self-incrimination must be
invoked at the proper time, and the proper time to invoke it is when a question
calling for an incriminating answer is propounded. This has to be so, because
before a question is asked there would be no way of telling whether the
information to be elicited from the witness is self-incriminating or not. As
stated in Jones on Evidence (Vol. 6, pp. 4926-4927), a person who has been
summoned to testify 'cannot decline to appear, nor can be decline to be sworn
as a witness' and 'no claim or privilege can be made until a question calling
for a incriminating answer is asked; at that time, and generally speaking, at
that time only, the claim of privilege may be interposed. (Gonzales vs. Sec.
of Labor, et al., 94 Phil. 325, 326 [19541).
160
Moreover, the issue actually addresses itself to a question of admissibility or
competency of evidence and not to its credibility. Whether the evidence so
admitted is to be given any probative weight or credence is best addressed to
the Sandiganbayan. It should be recalled that the Board was not unanimous
in its assessment of the testimonies given.
There are additional considerations. While the right against self-incrimination
is indubitably one of the most fundamental of human rights, Section 5 of PD
No. 1886 should be construed so as to effect a practical and beneficent
purpose and not in such a manner as to hinder or obstruct the administration
of criminal justice.
... Any statute which, while it compels him to testify, protects the witness if
he does disclose the circumstances of his offense and the sources from which
or the means by which evidence of its commission or of his connection with
it may be obtained or made effectual for his subsequent prosecution and
conviction is sufficient to comply with the constitutional requirements. Such
a statute, however should be construed to effect a practical and beneficent
purpose, namely, at the same time to secure the witness in his constitutional
rights and to permit the prosecuting officer to secure evidence of a crime. It
should not be construed so as to unduly impede, hinder, or obstruct the
administration of criminal justice." Brown v. Walker 161 US 591, 16 Sup.
Ct. 644, 40 L. Ed. 819. (People ex rel. Hunt vs. Lane, 116 N.Y.S. 990, 132
App. Div. 406)
The objective in all this exercise is to arrive at the truth. "Though the
constitutional provisions for the protection of one who appears ... must be
liberally and fairly applied, the interests of the people are also entitled to
consideration" (Wharton's Criminal Evidence, 11th Ed., Vol. 1, p. 609;
People vs. Coyle 15 N.Y.S. 2d 441, 172 Mis 593). Specially so since, in the
language of PD No. 1886 itself, the "treacherous and vicious assassination of
former Senator Benigno S. Aquino, Jr. on August 21, 1983, has to all
Filipinos become a national tragedy and national shame. "
In the interest of eliciting the truth, the excluded testimonies should be
admitted, leaving it to the Sandiganbayan to determine which specific
questions and answers are to be excluded because they are incriminatory, and
which should be given credibility, in found to be competent and admissible.
RELOVA, J., dissenting:
The issue raised in these two petitions is whether the testimonies and other
evidence produced by the private respondents before the Agrava Board may
be used as evidence against them before the Sandiganbayan
Respondent Sandiganbayan rejected their testimonies on the ground that
"under statutes providing in substance that no person shall be excused from
testifying or furnishing evidence on the ground that the testimony or evidence
may tend to incriminate him, but that no person shall be subject to indictment
or prosecution for anything concerning which he may testify or furnish
evidence, it has been held that one who testifies concerning criminal offenses
when required to do so is entitled to immunity from prosecution even though
he fails to claim his privilege before giving the incriminating testimony (21
Am Jur 2d 218). He could not be required, in order to gain the immunity
which the law afforded, to go though the formality of an objection or protest
which, however made, would be useless (VIII Wigmore 516)." (p. 4,
Resolution of Sandiganbayan)
Section 5 of Presidential Decree No. 1886 provides that:
SEC. 5. No person shall be excused from attending and testifying or from
producing books, records, correspondence, documents, or other evidence in
obedience to a subpoena issued by the Board on the ground that his testimony
or the evidence required of him may tend to incriminate him or subject him
to penalty or forfeiture; but his testimony or any evidence produced by him
shall not be used against him in connection with any transaction, matter or
thing concerning which he is compelled, after having invoked his privilege
against self- incrimination to testify or produce evidence ... (Emphasis
supplied.)
Pursuant to the above Presidential Decree no one can refuse to testify or
furnish evidence before the Fact Finding Board. However, his testimony or
any evidence produced shall not be used against him after he invoked the
privilege against self-incrimination. Stated differently, the privilege against
self-incrimination must be invoked when the question at the hearing before
the Board, calling for an incriminating answer is propounded; otherwise,
before any question is asked of the witness, he would not know whether the
information to be elicited from him is incriminating or not.
161

In the case of Gonzales vs. Secretary of Labor, et al., 94 Phil. 325, this Court
held that "the privilege against self-incrimination must be invoked at the
proper time, and the proper time to invoke it is when question calling for a
incriminating answer is propounded. This has to be so, because before a
question is asked there would be no way of telling whether the information
to be elicited from the witness is self-incriminating or not. As stated in Jones
on Evidence (Vol. 6, pp. 4926-4927), a person who has been summoned to
testify 'cannot decline to appear, nor can he decline to be sworn as a witness'
and 'no claim of privilege can be made until a question calling for a
incriminating answer is asked; at that time, and generally speaking, at that
time only, the claim of privilege may properly be interposed.'" And, since it
is a personal right to be exercised only by the witness, this privilege against
self-incrimination may be waived by him and, when so waived, cannot
thereafter be asserted. The privilege is waived by his voluntary offer to testify
by, answering questions without objecting and/or claiming the privilege.
When private respondents gave testimonies before the Board they were not
defendants but witnesses invited and/or subpoenaed "to ventilate the truth
thorougly free, independent and dispassionate investigation." They could not
refuse or withhold answers to questions propounded to them unless the
inquiry calls for an incriminating answer and a timely objection is raised.
In the case at bar, since the private respondents answered questions from the
Fact Finding Board without claiming the privilege against self-incrimination
they cannot now be allowed to invoke the immunity clause provided in
Section 5 of Presidential Decree No. 1886.
I vote to grant the petitions.
Separate Opinions
MAKASIAR, C.J., concurring:
To admit private respondents' testimonies and evidence before the Fact-
Finding Board (FFB) against them in the criminal prosecution pending before
the Sandiganbayan, would violate their constitutional or human rights the
right to procedural due process, the right to remain silent, and the right against
self- incrimination.
That their testimonies and other evidence they submitted before the FFB in
these criminal cases are incriminatory, is confirmed by the very fact that such
testimonies and evidence were the very bases of the majority report of the
FFB recommending the prosecution of private respondents as accessories.
It should be stressed that the basic purposes of the right against self-
incrimination are (1) humanity or humanitarian reasons to prevent a witness
or accused from being coerced, whether physically, morally, and/or
psychologically, into incriminating himself, and (2) to protect the witness or
accused from committing perjury, because the first law of nature is self-
preservation.
The utilization in the prosecution against them before the Sandiganbayan of
the testimonies and other evidence of private respondents before the FFB
collides with Section 1, Section 17 and Section 20 of the Bill of Rights of the
1973 Constitution:
Section 1. No person shall be deprived of life, liberty or property
without due process of law, nor shall any person be denied the equal of the
laws.
xxx xxx xxx
Section 17, No person shall be held to answer for a criminal offense
without due process of law.
xxx xxx xxx
Section 20. No person shall be compelled to be a witness against
himself. Any person under investigation for the commission of an offense
shall have the right to remain silent and to counsel, and to be informed of
such right. No force, violence, threat, intimidation, or any other means which
vitiates the free will shall be used against him. Any confession obtained in
violation of this Section shall be inadmissible in evidence.
162
The Bill of Rights constitutes the reservation of the sovereign people against,
as well as the limitation on, the delegated powers of government. These rights
thus enshrined need no express assertion. On the contrary, the police and
prosecution officers of the country should respect these constitutional
liberties as directed in the recent decision in the Hildawa and Valmonte cases
(G.R. Nos. 67766 and 70881, August 14, 1985). The established
jurisprudence is that waiver by the citizen of his constitutional rights should
be clear, categorical, knowing, and intelligent (Johnson vs. Zerbst, 304 US
458, 464, cited in Abriol vs. Homeres, 84 Phil. 525 [1949] and in Chavez vs.
CA, 24 SCRA 663, 682-683).
The use of testimonies and other evidence of private respondents before the
FFB against them in the criminal cases subsequently filed before the
Sandiganbayan would trench upon the constitutional guarantees that "no
person shall be deprived of life, liberty, or property without due process of
law ... that "no person shall be held to answer for a criminal offense without
due process of law" and that (Section 17, Article IV, 1973 Constitution), that
"no person shall be compelled to be a witness against himself. ..." and that "
a person has the right to remain silent ..." (Section 20, Article IV, 1973
Constitution).
There can be no implied waiver of a citizen's right against self-incrimination
or of his right to remain silent.
Any such renunciation cannot be predicated on such a slender or tenuous reed
as a dubious implication. Otherwise, it would be easier to lose the human
rights guaranteed by the Bill of Rights than to protect or preserve them; it
would be easier to enslave the citizen than for him to remain free. Such a
result was never intended by the Founding Fathers.
The first sentence of Section 20 of the Bill of Rights stating that "no person
shall be compelled to be a witness against himself," applies to both the
ordinary witness and the suspect under custodial investigation.
In support of the rule that there can be no implied waiver of the right against
self-incrimination and all other constitutional rights by the witness or by the
accused, is the fact that the right against double jeopardy can only be
renounced by the accused if the criminal case against him is dismissed or
otherwise terminated with his express consent. Without such express consent
to the dismissal or termination of the case, the accused can always invoke his
constitutional right against double jeopardy.
If Section 5 of P.D. 1886 were interpreted otherwise, said section would
become a booby trap for the unsuspecting or unwary witness, A witness
summoned either by subpoena or by Invitation to testify before the FFB under
Section 5, cannot refuse, under pain of contempt, to testify or produce
evidence required of him on the ground that his testimony or evidence may
tend to incriminate or subject him to a penalty or forfeiture; because the same
Section 5 prohibits the use of such testimony or evidence which may tend to
incriminate him in any criminal prosecution that may be filed against him.
The law or decree cannot diminish the scope and extent of the guarantee
against self-incrimination or the right to remain silent or the right against
being held to answer for a criminal offense without due process of law, or
against deprivation of his life, liberty or property without due process of law.
As a matter of fact, numerous decisions culled by American jurisprudence
are partial to the rule that immunity statutes which compel a citizen to testify,
should provide an immunity from prosecution that is as co-extensive, as total
and as absolute as the guarantees themselves (Jones Law on Evidence,
Chapter XVIII, Section 863, pp. 1621-1623; Kastigar vs. US 1972, 406 US
441).
Even if the witness testified pursuant to an invitation, the invitation does not
remove the veiled threat of compulsion, because as stated in the Chavez case,
supra.
Compulsion as it is understood here does not necessarily connote the use of
violence; it may be the product of unintentional statements. Pressures which
operate to overbear his will, disable him from making a free and rational
choice, or impair his capacity for rational judgment would in our opinion be
sufficient. So is moral coercion attending to force testimony from the
unwilling lips of the defendant (Chavez vs. Court of Appeals, 24 SCRA 663,
679).
The summons issued to private respondents has been euphemistically called
as an invitation, instead of a subpoena or subpoena duces tecum, as a sign of
respect for the important and high positions occupied by private respondents.
But the effect of such an invitation thus worded is the same as a subpoena or
subpoena duces tecum. Precisely, the phraseology of Section 5 of P.D. 1886
163
entices the unsuspecting private respondents to testify before the FFB, by
dangling in the same Section 5 the assurance that their testimony or the
evidence given by them will not be used against them in a criminal
prosecution that may be instituted against them.
At the very least, their consent to testify was under such misapprehension.
Hence, there can be no clear, categorical, knowing and intelligent waiver of
the right to remain silent, against self-incrimination, against being held to
answer for a criminal offense without due process of law, and against being
deprived of life, liberty or property without due process of law under such
misapprehension.
In any event, Section 5 of P.D. 1886 creates a doubt, which doubt is
accentuated by the difference of opinion thereon among the counsels in these
cases and among members of this Court. And it is basic in criminal law that
doubts should be resolved liberally in favor of the accused and strictly against
the government.
The procedural due process both under Sections 1 and 17 of the Bill of Rights,
Article IV of the 1973 Constitution, simply means, in the language of Justice
Frankfurter, the sporting Idea of fair play. The FFB and its counsel did not
inform the private respondents herein of their right to remain silent and their
right against self-incrimination, and that their testimonies may be utilized
against them in a court of law, before they testified. This is not fair to them,
and hence, they were denied procedural due process.
It should be stressed that the FFB was merely a fact-finding agency for the
purpose of gathering all the possible facts that may lead to the Identity of the
culprit. Such testimonies may provide leads for the FFB, its counsels and
agents to follow up. The FFB and its counsels cannot rely solely on such
testimonies to be used against the private respondents in these criminal cases.
It should be recalled that the FFB had ample funds for the purpose of
accomplishing its object. As a matter of fact. it refunded several million pesos
to the government after it concluded its investigation. The Board and its
counsel could have utilized the said amount to appoint additional agents to
look for witnesses to the assassination. In this respect, the FFB counsel could
be faulted in not utilizing the funds appropriated for them to ferret out all
evidence that will Identify the culprit or culprits. The failure of the FFB's
counsel to use said funds reflects on the initiative and resourcefulness of its
counsel. He could prosecute private respondents on evidence other than their
testimony and the evidence they gave before the FFB.
As heretofore stated, the private respondents were compelled to testify before
the FFB whether by subpoena or by invitation which has the effect of a
subpoena as provided for in Section 5 of P.D. 1886; because private
respondents then believed, by reading the entire Section 5, that the testimony
they gave before the FFB could not be used against them in the criminal cases
subsequently filed before the Sandiganbayan. Because the Board was merely
a fact-finding board and that it was riot conducting a criminal prosecution the
private respondents were under the impression that there was no need for
them to invoke their rights to remain silent, against self-incrimination and
against being held for a criminal offense without due process of law.
It should be recalled that the counsel of the FFB after submitting the majority
report, refused to cooperate with the Tanodbayan in these cases with the
pompous declaration that, after submitting their majority report, he
automatically became functus oficio. Was his refusal to cooperate with, and
assist, the Tanodbayan in the prosecution of these cases, born of the
realization that the FFB majority report is as weak as it was precipitate? And
when the Tanodbayan has now his back to the wall, as it were, by the ruling
of the respondent Sandiganbayan excluding the testimonies and other
evidence of private respondents herein on the ground that the use of their
testimonies and other evidence will incriminate them, the FFB counsel,
without being requested by the Tanodbayan, now files a memorandum in
support of the position of the Tanodbayan. what is the reason for this turn-
about to save his report from the fire which they started with such
enthusiasm?
As above emphasized, it is the duty of the police and the prosecuting
authorities to respect their rights under the Constitution as we stated in the
recent Hildawa and Valmonte cases, supra.
The grant of immunity under Section 5 of P.D. 1886 would be meaningless
if we follow the posture of petitioners herein. Such a posture would be correct
if the phrase "after having invoked his privilege against self- incrimination"
were transposed as the opening clause of Section 5 to read a follows "After
having invoked his privilege against self-incrimination, no person shall be
excused from attending and testifying ... etc."
164
Said Section 5 has two clauses and contemplates two proceedings. The first
clause from "No person shall be excused ... etc." up to "penalty or forfeiture
refers to the proceeding before the FFB. The second clause after the semi-
colon following the word "forfeiture which begins with but his testimony or
any evidence produced by him shall not be used against him in connection
with any transaction, matter, or thing concerning which he is compelled, after
having invoked his privilege against self-incrimination to testify . refers to a
subsequent criminal proceeding against him which second clause guarantees
him against the use of his testimony in such criminal prosecution, but does
not immunize him from such prosecution based on other evidence.
The private respondents herein, if the contention of the prosecution were
sustained, would be fried in their own fat. Consequently, the petition should
be dismissed.
CONCEPCION, JR., J., concurring:
1. Let me preface my opinion by quoting from my dissent in Pimentel.
1 cause him harm.
1. We are committed to the mandate of the Rule of Law. We resolve
controversies before Us without considering what is or what might be the
popular decision. No. We never do. We only consider the facts and the law.
Always the facts and the law.
2. The issue before Us is not I repeat not the guilt or innocence of Gen.
Fabian C. Ver, Major Gen. Prospero Olivas, and others for their alleged
participation in the assassination of former Senator Benigno S. Aquino, Jr.
3. The issue is: Are the testimonies given by them before the Agrava
Board admissible in evidence against them in their trial before the
Sandiganbayan?
4. The issue therefore is purely a question of law. It involves the
interpretation of Sec. 5, P.D. No. 1886 and calls for the application of the
Rule of Law.
5. Sec. 5, P.D. No. 1886 reads:
No person shall be excused from attending and testifying or from producing
books, records, correspondence, documents, or other evidence in obedience
to a subpoena issued by the Board on the ground that his testimony or the
evidence required of him may tend to incriminate him or subject him to
penalty or forfeiture; but his testimony or any evidence produced by him shall
not be used against him in connection with any transaction, matter or thing
concerning which he is compelled. after having invoked his privilege against
self-incrimination, to testify or produce evidence, except that such individual
so testifying shall not be exempt from prosecution and punishment for perjury
committed in so testifying, nor shall he be exempt from demotion or removal
from office.
6. This section means that any person who is invited or summoned to
appear must obey and testify as to what he knows. Even if the testimony tends
to incriminate him he must testify. Even if he claims his constitutional right
against self-incrimination, he still must testify. However, his testimony
cannot be used against him in any subsequent proceeding, provided that at
the time it is being presented, he invokes his privilege against self-
incrimination. His testimony, no matter what it may be, cannot in any way
The only exception is if the testimony he gave is false, in which case he can
be prosecuted and punished for perjury. He may also be demoted or removed
from office.
7. The testimonies given by private respondents before the Agrava
Board are therefore not admissible against them in their trial before the
Sandiganbayan, having invoked their privilege against self-incrimination.
PLANA, J., concurring:
I would like to underscore some considerations underlying my concurrence:
1. According to the Constitution, no person shall be compelled to be a
witness against himself. But the law (PD 1886) which created the Agrava
Board decrees that no person shall be excused from testifying on the ground
of self- incrimination. If the law had stopped after this command, it would
have been plainly at variance with the Constitution and void. lt was to ward
off such a Constitutional infirmity that the law provided for immunity against
165
the use of coerced testimony or other evidence, an immunity which, to be
constitutionally adequate, must give at least the same measure of protection
as the fundamental guarantee against self-incrimination.
2. Presidential Decree 1886 was not intended either to restrict or
expand the constitutional guarantee against self-incrimination. On the one
hand, a law cannot restrict a constitutional provision. On the other hand, PD
1886 was adopted precisely to coerce the production of evidence that
hopefully would unmask the killers of Senator Aquino, although the
compulsory process is accompanied by "use" immunity.
3. It is argued that the right against self- incrimination must have been
invoked before the Agrava Board if the use of evidence given therein against
the witness in a subsequent criminal prosecution is to be barred. I did not
agree.
I fail to see why to preserve pursuant to law (PD 1886) one's constitutional
right against self-incrimination, one has to offer resistance to giving
testimony a resistance which the said law itself says is futile and cannot
prevail, as no witness by its specific injunction can refuse to testify.
4. The constitutional right against self-incrimination may be waived
expressly. It may also be waived impliedly by speaking when one has the
option to hold his tongue. Waiver by implication presupposes the existence
of the right to keep silent. Thus, when one speaks because the law orders him
to do so, his action is not really voluntary and therefore his testimony should
not be deemed an implied waiver of his constitutional right against self-
incrimination.
5. Presidential Decree 1886 does not give private respondents absolute
immunity from prosecution, It only bars the use against them of the evidence
that was elicited from them by the Agrava Board. If there are other evidence
available, private respondents are subject to indictment and conviction.
6. Moreover, the evidence given to the Agrava Board is not, in my
view, completedly immunized. What PD 1886 bars from use is only the
testimony of the witness who testified before the Agrava Board and whatever
was presented as part of his testimony, as such. PD 1886 could not have
intended to convert non-confidential official documents into shielded public
records that cannot be used as evidence against private respondents, by the
mere fact that they were admitted in evidence as part of private respondents'
testimony before the Agrava Board. In other words, evidence otherwise
available to the prosecution, such as official documents, do not become
barred just because they have been referred to in the course of the testimony
of private respondents and admitted in evidence as part of their testimony
They may still be subpoenaed and offered in evidence. Conceivably, some
objections might be raised; but the evidence will be unfettered by the
exclusionary rule in PD 1886.
ESCOLIN, J., concurring:
I concur in the dismissal of the petitions. The admission in evidence of the
testimonies of private respondents given before the Agrava Board would
constitute a violation of their right against self- incrimination guaranteed
under Section 20, Article IV of the Constitution. I subscribe to the majority
view that Section 5 of P.D. 1886 cannot be constitutionally tenable, unless a
grant of immunity is read into it vis-a-vis the compulsion it imposes upon a
witness to testify. Otherwise stated, Section 5 of P.D. 1886 should be
interpreted as an immunity statute, which, while depriving one of the right to
remain silent, provides an immunity from prosecution that is as co-extensive,
as total and as absolute as the guarantees themselves. (Jones Law on
Evidence, Chapter XVIII, Section 863, pp. 1621-1623, Kastigar v. U.S.,
1972, 406 US 441).
Clearly, this is how the private respondents understood the legal provision
under consideration. For ably assisted as they were by counsel, they would
not have allowed themselves to be deliberately dragged into what the Chief
Justice would call a "booby trap". Viewed from another angle, therefore, it
could not be truly said that private respondents had waived their right against
self- incrimination in a manner that is clear, categorical, knowing and
intelligent. (Johnson v. Zerbst, 304 US 458, 464, cited in Abriol v. Homeres,
84 Phil. 525 and Chavez v. CA, 24 SCRA 663).
GUTIERREZ, JR., J., concurring:
I concur in the majority opinion penned by Justice Serafin R. Cuevas and in
the pithy separate opinion of Justice Nestor B. Alampay but would like to add
some personal observations.
166

This case furnishes an opportunity to appreciate the workings of our criminal
justice system.
The prosecutions which led to this petition serve as a timely reminder that all
of us-civilian or military, layman or judge, powerful or helpless- need the Bill
of Rights. And should the time ever come when like the respondents we may
have to invoke the Constitution's protection, the guarantees of basic rights
must be readily available, in their full strength and pristine glory, unaffected
by what is currently popular or decreed and heedless of whoever may be
involved
In many petitions filed with this Court and lower courts, the military has often
been charged with riding roughshod over the basic rights of citizens. Officers
and enlisted men in the frontlines of the fight against subversion or rebellion
may, in the heat of combat, see no need to be concerned over such ,niceties"
as due process, unreasonable searches and seizures, freedom of expression,
and right to counsel. They are best reminded that these rights are not luxuries
to be discarded in times of crisis. These rights are the bedrock of a free and
civilized society. They are the reason why we fight so hard to preserve our
system of government. And as earlier stated, there may come times when we
may have to personally invoke these basic freedoms for ourselves. When we
deny a right to an accused, we deny it to ourselves.
The decision of the Court underscores the importance of keeping inviolate
the protections given by the Bill of Rights. Acts which erode or sacrifice
constitutional rights under seductive claims of preserving or enhancing
political and economic stability must be resisted. Any lessening of freedom
will not at all increase stability. The liberties of individuals cannot be
preserved by denying them.
The dividing line between legitimate dissent or opposition on one hand and
subversion or rebellion on the other may be difficult to pinpoint during
troubled times. The lesson of this petition is that those charged with
suppressing the rebellion and those who sit in courts of justice should ever be
vigilant in not lumping legitimate dissenters and rebels together in one
indiscriminate classification.
An abiding concern for principles of liberty and justice is especially
imperative in periods of crisis and in times of transition. And all persons from
the mighty to the lowy must be given the fullest measure of protection under
the Bill of Rights if our constitutional guarantees are to have any meaning.
In addition to the right against self- incrimination, of not being compelled to
be a witness against one's self, so ably discussed by Justice Cuevas in the
Court's opinion, I am constrained by considerations of basic fairness to vote
against granting the petition.
The private respondents were called to testify before the Agrava Commission.
The decree creating the commission stated that no person may refuse to attend
and testify or to produce evidence before it on the ground that what he says
or produces may incriminate him. But since the witness is compelled to give
all he knows or possesses in effect shorn by law of his right not to incriminate
himself the decree states that the evidence wrung from that witness may not
be used against him later. This is, simply speaking, what the petition is all
about.
The respondents may be prosecuted as indeed they have been prosecuted.
They may eventually be convicted if the evidence warrants conviction.
however, they may not be convicted solely on the evidence which came from
their own mouths or was produced by their own hands. The evidence must
come from other sources. It would be the height of unfairness and contrary to
due process if a man is required to state what he knows even if it would
incriminate him, is promised immunity if he talks freely, and is later
convicted solely on the testimony he gave under such a promise of immunity.
I believe that P.D. 1886 is the first Immunity Act to be enacted in the
Philippines. It may be relevant, therefore, to refer to American decisions
expounding on immunity statutes, more so when a comparison of P.D. 1886
with such statutes as the U.S. Immunity Act of 1954, 68 Stat. 745, 18
U.S.C.A. Section 3486, shows a similarity in the protection given by the
statutes.
The U.S. Immunity Act of 1954 was enacted to assist federal grand juries in
their investigations of attempts to endanger the national security or defense
of the United States by treason, sabotage, espionage, sedition, seditious
conspiracy, and violations of various laws on internal security, atomic or
nuclear energy, and immigration and nationality. The law stated that a witness
shall not be excused from testifying or from producing books, papers, or other
167
evidence on the ground that it may tend to incriminate him or subject him to
a penalty or forfeiture. The statute then provides:
But no such witness shall be prosecuted or subjected to any penalty or
forfeiture for or on account of any transaction, matter, or thing concerning
which he is compelled, after having claimed his privilege against self-
incrimination, to testify or produce evidence nor shall testimony so compelled
be used as evidence in any criminal proceeding ... against him in any court.
The American statute provides immunity against prosecution, penalties, and
use of the testimony. P.D. 1886 is of more limited scope. Only the use of the
compelled testimony is proscribed. The witness may still be prosecuted but
the prosecution will have to look for evidence other than the words of the
accused given before the Agrava Commission.
In Brown v. Walker (161 U.S. 591) the U.S. Supreme Court was confronted
with the validity of the 1893 Immunity Act. Brown was subpoenaed to testify
before a grand jury investigating railroad anomalies. lie refused to testify on
grounds of self- incrimination, arguing that the Immunity Act compelling him
to testify was unconstitutional. The Court ruled that "(W)hile the
constitutional provision in question is justly regarded as one of the most
valuable prerogatives of the citizen, its object is fully accomplished by the
statutory immunity and we are therefore of opinion that the witness was
compellable to answer." In other words, the statutory immunity takes the
place of the invocation of the constitutional guarantee. There is no need at the
time of taking testimony to invoke the Fifth Amendment because it would be
denied any way and the witness would be compelled to testify. It would be
absurd to invoke a protection which cannot be availed of when compelled to
testify. The time to invoke the immunity is when the testimony is being used
contrary to the granted immunity. Protected by the statutory immunity, a
witness cannot even insist on his right to remain silent when testifying.
In Ullmann v. United States (350 U.S. 422), the court interpreted the
Immunity Act of 1954 and stated.
xxx xxx xxx
... Since that time the Court's holding in Brown v. Walker has never been
challenged; the case and the doctrine it announced have consistently and
without question been treated as definitive by this Court, in opinions written,
among others, by Holmes and Brandeis, Justices. See, e.g., McCarthy v.
Arndstein 226 U.S. 34, 42; Heike v. United States, 227 U.S. 131, 142. The
1893 statute has become part of our constitutional fabric and has been
included in substantially the same terms, in virtually all of the major
regulatory enactments of the Federal Government.' Shapiro v. United States,
335 U.S. 1, 6. For a partial list of these statutes, see, Id., 335 U.S. at pages 6-
7, note 4. Moreover, the States, with one exception a case decided prior to
Brown v. Walker have, under their own constitutions, enunciated the same
doctrine, 8 Wigmore, Evidence (3d ed.), 2281, and have passed numerous
statutes compelling testimony in exchange for immunity in the form either of
complete amnesty or of prohibition of the use of the compelled testimony.
For a list of such statutes, see 8 Wigmore, Evidence (3d ed.), 2281, n. 11 (pp.
478-501) and Pocket Supplement thereto, 2281, n. 11 (pp. 147-157).
(Emphasis supplied)
xxx xxx xxx
It is interesting to note how the American Supreme Court in Ullmann treated
the immunity not only against the use of the testimony (as under P.D. 1886)
but even against prosecution.
xxx xxx xxx
Petitioner, however, attempts to distinguish Brown v. Walker. He argues that
this case is different from Brown v. Walker because the impact of the
disabilities imposed by federal and state authorities and the public in general
such as loss of job, expulsion from labor unions, state registration and
investigation statutes, passport eligibility and general public opprobrium-is
so oppressive that the statute does not give him true immunity. This, he
alleges, is significantly different from the impact of testifying on the auditor
in Brown v. Walker, who could the next day resume his job with reputation
unaffected. But, as this Court has often held, the immunity granted need only
remove those sanctions which generate the fear justifying the invocation of
the privilege 'The interdiction of the other Amendment operates only here a
witness may possibly expose him to a criminal charge. But if the criminality
has already been taken away, the amendment ceased to apply.' Hale v. Henkel
201 U.S. 43, 67. Here, since the Immunity Act protects a witness who is
compelled to answer to the extent of his constitutional immunity, he has of
course, when a particular sanction is sought to be imposed against him, the
right to claim that it is criminal in nature. (Emphasis supplied).
168

In United States v. Murdock (284 U.S. 141), the court ruled that "the principle
established is that full and complete immunity against prosecution by the
government compelling the witness to answer is equivalent to the protection
furnished by the rule against compulsory self-incrimination.
P.D. 1886, being an immunity statute should not be given a strained or absurd
interpretation in order to achieve a certain result. If the immunity given by
the decree is equivalent to the protection furnished by the right against self-
incrimination, then, paraphrasing Justice Frankfurter in Ullmann, the same
protection given by one of the great landmarks in man's struggle to make
himself civilized must not be interpreted in a hostile or niggardly spirit,
xxx xxx xxx
... Too many, even those who should be better advised, view this privilege as
a shelter for wrongdoers. They too readily assume that those who invoke it
are either guilty of crime or commit perjury in claiming the privilege. Such a
view does scant honor to the patriots who sponsored the Bill of Rights as a
condition to acceptance of the Constitution by the ratifying States. The
Founders of the Nation were not naive or disregard ful of the interest of justice
...
I, therefore, join the majority in dismissing the petition.
DE LA FUENTE, J., concurring:
No person shall be compelled to be a witness against himself." 1 This basic
right against self- incrimination, which supplanted the inquisitorial methods
of interrogating the accused as practiced during the Spanish regime, has
become an indispensable part of our laws since 1900. Pursuant thereto, an
accused in a criminal case has the right not only to refuse to answer
incriminating questions but also to refuse to take the witness stand. He cannot
be compelled even to utter a word in his defense. 2 As stressed in Chavez vs.
Court of Appeals, 3 the rule may otherwise be stated as the constitutional
right of the accused to remain silent. " The accused can forego testimony 4
without any adverse implication drawn from his decision to do so, The burden
is on the State to establish the guilt of the accused beyond reasonable doubt;
the prosecution must look elsewhere for other "evidence independently and
freely secured," The rule forbids what has been considered as "the certainly
inhuman procedure of compelling a person 'to furnish the missing evidence
necessary for his conviction'." According to Justice Harlan, it was intended
"to shield the guilty and imprudent as well as the innocent and foresighted."
5 Transplanted in this country with the advent of American sovereignty 6 and
firmly imbedded in our fundamental law, 7 the said privilege against
compulsory self-incrimination, which is predicated on grounds of public
policy and humanity, 8 "is fundamental to our scheme of justice" 9 and is one
of the procedural guarantees of our accusatorial system.
1. As I see it, what the prosecution proposed to do in these cases was
to present, as evidence of the alleged accessorial acts of private respondents,
the transcripts of their respective testimonies before the Agrava Board.
Confronted by the apparent unwillingness of said respondents to be called to
the witness stand in subsequent criminal proceedings, the prosecution sought
to put into the record of these criminal cases (in lieu of private respondents'
testimonies) the said transcripts and other evidence given by them in the
course of their testimony before the Agrava Board. If allowed over and
despite private respondents' objection, this would be a clear infringement of
the constitutional guarantee that they can invoke in said criminal proceedings,
as all of them did. Since the prosecution cannot require said respondents to
testify in the criminal cases before the Sandiganbayan, it stands to reason that
it is equally disabled from indirectly compelling respondents to give evidence
against themselves by using their Agrava Board testimonies. The prosecution
must present evidence "derived from a legitimate source wholly independent
of the compelled testimony." 10
2. It is contended, however, that these self- incriminatory testimonies
were given voluntarily because they did not claim the constitutional
guarantee before or while giving testimony to the Agrava Board.
Voluntariness, I think. cannot be inferred simply from such failure to invoke
the privilege. There was no fair warning or notice to the declarant that his
testimony would be used against him if incriminatory, unless the privilege is
invoked beforehand or during his testimony. If they were properly warned
and still gave testimony without t invoking the privilege, then it would be
clear that they knowingly waived the privilege. Otherwise, it meant at the
most a willingness on their part to help the Agrava Board in its fact-finding
investigation without waiving (a) the immunity granted by law, and (b) the
constitutional guarantee against self- incrimination in case of subsequent
prosecution based on their self-incriminatory testimony. For waiver, it is
169
wellsettled, to be effective. "must be certain, unequivocal and intelligently,
understandably and willingly made. " 11 Mere submission to an illegal search
or seizure "is not consent or waiver of objection. 12 The prosecution has the
burden to prove otherwise. The same standard should be observed in self-
incrimination cases.
PD No. 1886 (as amended), which created that "independent ad hoc fact-
finding Board," vested it with "plenary powers to determine the facts and
circumstances surrounding the killing [of former Senator Aquino] and to
allow for a free, unlimited and exhaustive investigation into all aspects of said
tragedy." In consonance with these objectives, the law declared that the
privilege was unavailable to an Agrava Board "witness", as follows: "No
person shall be excused from attending and testifying or from producing other
evidence on the ground that his testimony or any evidence requested of him
may tend to incriminate him, " 13 etc. At the same time, the Board was
empowered to summarily hold and punish any person in direct contempt for
"refusal to be sworn or to answer as a witness," its judgment being "final and
unappealable."
Quite plainly, the constitutional right against compulsory self-incrimination
could not be invoked by Agrava Board witnesses, The privilege was
suspended or temporarily taken away for purposes of the investigation, in
order that the Board would have access to all relevant evidence and all
sources of information, not excluding compelled incriminatory statements of
probable and possible or potential defendants. An Agrava Board witness was,
under the terms of the quoted provision, placed in a dilemma: (1) to answer
truthfully all questions including those tending to be self-incriminatory, since
he cannot invoke the privilege; (2) to lie and become liable criminally for
perjury; and (3) to insist on his right to remain silent and be summarily
punished by the Board for direct contempt. It is plain that such a witness was
under compulsion to give self-incriminatory testimony. It was not voluntary.
Precisely because of its coerced nature (an infringement of his constitutional
right against self- incrimination), PD No. 1886 promised. in exchange or as a
substitute for the privilege, limited immunity (as provided in the next
succeeding clause, same section), to wit:
... but his testimony or any evidence produced by him shall not be used
against him in connection with any transaction, matter or thing concerning
which he was compelled, after having invoked his privilege against self-
incrimination, to testify or produce evidence. 14
Such immunity 15 would bar the prosecution's use against the witness of his
said testimony in subsequent criminal proceedings (wherein he is charged
with offenses related to his testimony). Nevertheless, this would not operate
to change the involuntary nature of his self- incriminatory testimony. As far
as the witness is concerned, it was "coerced", not freely given, because he
was not fully accorded the "liberty of choice." The law withheld his basic
freedom to choose between testifying and remaining silent without the risk
of being punished for direct contempt to forego testimony which could
possibly be to his detriment.
3. I cannot agree with the proposition that the privilege should be
invoked by the witness before or while giving testimony to the Agrava Board.
Section 5 should be reasonably construed and fairly applied to the cases at
bar, in the light of the accused's constitutional right against compulsory self-
incrimination. The formula of limited-immunity in-lieu-of-the-privilege
contained in said section rendered unnecessary or superfluous, the invocation
of the privilege before the Board. Under said formula, the witness was
deprived of the privilege to protect himself against inquisitorial interrogation
into matters that a targeted defendant or virtual respondent can keep to
himself in ordinary investigations or proceedings.
Even if the provision is susceptible of an interpretation in support of the
petitioner's stand, it appears that the time for invoking the privilege is not
clear enough or certain from the language of the law. Equally plausible and
logical is the contrary view that it may be invoked later on when it became
apparent that the prosecution intended to use the testimony given before the
Board to secure conviction of the declarant in the subsequent criminal
proceedings. The privilege cannot be deemed waived by implication merely
as a consequence of failure to claim it before the Board. It bears emphasis
that the right of an accused "witnesses" against compulsory self-incrimination
is predicated on the constitutional guarantee, not on the special law in
question.
3. In the United States, the generally accepted approach in Fifth
Amendment Cases (involving the constitutional guarantee under
consideration) was stated as follows in Johnson vs Zerbst:" 16 It has been
pointed out that 'courts indulge in every reasonable presumption against a
waiver of the fundamental rights and that we do not presume acquiescence in
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the loss of such fundamental rights.'" Because, as Dean Griswold of Harvard
Law School (later, Solicitor General of the United States) eloquently puts it:
[T]he privilege against self-incrimination is one of the great landmark,s in
man's struggles to make himself civilized ... [W]e do not make even the most
hardened criminal sign his own death warrant, or dig his own grave ... We
have through the course of history developed a considerable feeling of the
dignity and intrinsic importance of the individual man. Even the evil man is
a human being. 17
In this jurisdiction, more than four decades ago, the late Justice Jose P.
Laurela nationalist, constitutionalist and eminent jurist, whose incisive and
authoritative opinions on constitutional questions are often cited by the bench
and the bar- voted to sustain a claim of the constitutional guarantee in
Bermudez vs. Castillo. 18 In his concurrence, he said inter alia:
(1) As between two possible and equally rational constructions, that
should prevail which is more in consonance with the purpose intended to be
carried out by the Constitution. The provision ... should be construed with the
utmost liberality in favor of the right of the individual intended to be secured.
...
(2) I am averse to the enlargement of the rule allegedly calculated to
gauge more fully the credibility of a witness if the witness would thereby be
forced to furnish the means for his own destruction. Unless the evidence is
voluntarily given, the policy of the constitution is one of protection on
humanitarian considerations and grounds of public policy...
(3) The privilege should not be disregarded merely because it often
affords a shelter to the guilty and may prevent the disclosure of wrongdoing.
Courts can not, under the guise of protecting the public interest and furthering
the ends of justice, treat a sacred privilege as if it were mere excrescence in
the Constitution. (Emphasis supplied; at page 493.)
In sum, considering the pertinent legal provisions and judicial
pronouncements as well as the climate prevailing when the private
respondents testified before the Agrava Board, I find it unavoidable to reach
the conclusion that they did so under legal, moral and psychological
compulsion. Their compelled testimonies before the Agrava Board cannot
thereafter be used against them in the cases at bar in view of the immunity
granted by P.D. No. 1886. They were not obliged to invoke then and there
the constitutional guarantee. If they did, that would have sufficed to afford
them adequate protection. If they did not, they could do so later on when the
Government prosecutors (in spite of the statutory grant of immunity) decided
in the subsequent criminal proceedings, to use against them their Agrava
Board testimonies. For, as earlier stated, there was no intelligent and knowing
waiver on their part of their constitutional right against self-incrimination.
Accordingly, and for other reasons well stated in the main separate
concurring opinions, I vote to dismiss the petitions.
ALAMPAY, J., concurring:
I vote for the dismissal of the petition in these consolidated cases.
What appears to be the basic and principal issue to which the consideration
of the Court is addressed to is the singular question of whether testimonies
adduced by the private respondents before the Ad Hoc Agrava Fact Finding
Board and sought to be introduced against them in the Sandiganbayan
wherein they have been accused were rightfully excluded as evidence against
them.
I find untenable the insistence of the petitioner Tanodbayan that the private
respondents should have claimed the right against self-incrimination before
the said Fact Finding Board and that having omitted doing so, the said
privilege afforded to them by law can no longer be invoked by them before
the Sandiganbayan.
The right claimed by private respondents rests on the fundamental principle
that no person shall be compelled to be a witness against himself as so stated
in our Constitution and from the fact that Section 5 of P.D. 1886 disallows
the use against him of such testimony or any evidence produced by him
before the said Fact Finding Board, except for perjury. Petitioner argues
however, that there was a waiver of this right to self-incrimination when
respondents proceeded to give their testimonies on various dates before the
Agrava Fact Finding Board without formally invoking on said occasions their
right against self-incrimination.
171
As private respondents could not have excused themselves from testifying
before said Board as clearly emphasized in the very first clause of Section 5
of P.D. 1886, and as at that point of time, there was no reason for the declarant
to anticipate or speculate that there would be any criminal charge or any
proceeding instituted against them, it would therefore, be unnatural and
illogical to expect that private respondents would even contemplate the need
of prefacing their declarations with an invocation before the Fact Finding
Board of their privilege against self-incrimination.
In fact for a declarant to announce his claim of the aforestated privilege prior
to or while testifying before said Fact Finding Board, would irresistibly create
an inference and convey an impression that said witness is burdened with his
own awareness that he stands already incriminated in some wrong. To insist
therefore, even in the absence yet of any proceeding against him, that the
witness invoke the said privilege before the Agrava Fact Finding Board,
would be obviously self-demeaning. Such an effect could not have been
intended by Section 5 of P.D. 1886, which was even meant to grant to the
witness a benefit rather than a burden. It is more reasonable therefore, to
conclude that the privilege against self-incrimination would be accorded to
said witness after he has invoked the same in a subsequent proceeding
wherein he has been charged of a wrong doing, except in a case for perjury.
It is only at such time when the necessity of invoking the mantle of the
privilege or the immunity afforded to him by law would arise.
It cannot also be rightfully concluded that private respondents had
intentionally relinquished or abandoned the said right which they claimed
before the Sandiganbayan. The fact that the issue of when and before what
forum should such claim to the right against self-incrimination be necessarily
presented has provoked much discussion and debate because of divergent
views. This has even prompted the submissions to the Court of opinions of
amicus curiae or friends of the court as to how Section 5 of Presidential
Decree 1886 should be construed and applied which are however different
from and contrary to the views expressed by the Justices of the
Sandiganbayan and other legal luminaries. These conflicting views negate the
proposition that there was an effective waiver made by the private
respondents of their rights.
It has earlier been stated by this Court that to be effective, such waiver must
be certain and unequivocal and intelligently, understandably and willingly
made. (Chavez vs. Court of Appeals, et al., 24 SCRA 663). In the same cited
case, it has been stated that courts indulge in every reasonable presumption
against waiver of fundamental constitutional rights and that we do not
presume acquiescence in the loss of fundamental rights (Citing Johnson vs.
Zerbst 304 U.S. 458, 464, 82 L. ed. 1461, 1466). Furthermore, whether the
alleged waiver is express or implied, it must be intentional. (Davison vs.
Klaess 20 N.E. 2d. 744, 748, 280 N.Y. 252; 92 CJS, 1058).
I find it difficult to accept that private respondents had at any time, ever
intended to relinquish or abandon their right against self-incrimination.
PATAJO, J., concurring:
I vote for the dismissal of the petition in these consolidated cases. Said
petitions do not merit being given due course and should be dismissed
outright.
I hold the view that the testimonies and evidence given before the Agrava
Board are inadmissible as evidence against those who testified or gave said
evidence irrespective of whether said persons were subpoenaed or invited. I
believe it is not a condition sine quo non to the non-admissibility of said
evidence that at the time they testified or gave evidence before the Agrava
Board that they had invoked their privilege against self-incrimination.
The Agrava Board was created as an independent ad hoc fact finding board
to determine all the facts and circumstances surrounding the assassination of
former Senator Benigno S. Aquino, Jr. on August 21, 1983. It was given
plenary powers to allow for a free, unlimited and exhaustive investigation
into all the aspects of said tragedy. It was given the power to issue subpoena
or subpoena duces tecum and "other compulsory processes" requiring the
attendance and testimony of witnesses and the production of any evidence
relative to any matter under investigation by said Board.
Those who have been subpoenaed to appear and testify or produce any
documentary evidence before the Board shall not be excused from testifying
or presenting evidence before said Board on the ground that their testimony
or evidence may tend to incriminate them or subject them to penalty or
forfeiture. I believe an invitation from the Board is as much a compulsory
process 1 to appear and testify before the Board as a subpoena and one
receiving said invitation cannot also excuse himself from appearing and
172
testifying before the Board. Petitioners appear to share this view when they
said in subparagraph (c), paragraph 7 of their petition in G.R. No. L-71208-
09.
(c) People were either invited or issued subpoenas, depending upon
their rank and office, to give testimony before the Board and among those
invited were respondents General Fabian C. Ver and Major General Olivas
while the rest of the military respondents were issued subpoenas.
Unquestionably, it was the intention of the decree creating the Board to
investigate the Aquino assassination to encourage all who have some
information on any "aspect of said tragedy" to furnish the Board said
information whether they are subpoenaed or issued other forms of
compulsory process such as an invitation and to do so without fear that what
they will say may be used against them. It is in this context that Section 5 of
PD No. 1886 should be viewed. When they testified before the Board, they
were given full assurance that whatever they say before the Board will not be
used against them. Only if they testify falsely that they may be prosecuted for
perjury. This is to prevent people from preventing the Board from finding out
the truth about the Aquino assassination by giving false leads or information
for ulterior reasons.
Actually Section 5 of PD No. 1886 falls under that category of statutes which
do not pronounce an entire immunity by forbidding punishment or
prosecution for any testimony or evidence given in connection with the
investigation of certain offenses more widely known as immunity statutes,
but merely prohibit in any criminal prosecution the use of the testimony of
the witness. Immunity statutes as well as statutes prohibiting the use of
testimony in any subsequent criminal prosecution have been the expedients
resorted for the investigation of many offenses, chiefly those whose proof or
punishment were otherwise impracticable because of the implication in the
offense itself of all who could bear useful testimony.
The expediency and practical utility of this mode of obtaining evidence may
as a measure of legislation, be open to argument. But the tradition of it as a
lawful method of annulling the privilege against self-incrimination is
unquestioned in English history." ignore on Evidence, Vol. III, p. 469.
Speaking of this kind of privilege of non-admission of testimony given by the
witness in subsequent prosecutions as allowed by the common law and
modified by subsequent statutes, State vs. Quarles 13 Ark 307, 311, said:
The privilege in question, in its greatest scope, as allowed by the common
law and no one, be he witness or accused, can pretend to claim it beyond its
scope at the common law never did contemplate that the witness might not
be proved guilty of the very crime about which he may be called to testify;
but only that the witness should not be compelled to produce the evidence to
prove himself guilty of that crime. His privilege, therefore, was not an
exemption from the consequences of a crime that he might have committed;
but only an exemption from the necessity of himself producing the evidence
to establish his own crime ... So long as it might be lawful to produce in
evidence against an accused party whatever he might before have voluntarily
said as a witness on a prosecution against another, there were no means by
which the privilege could be made available short of a claim by the witness
to be silent; and as that was the rule of the common law, this was the common-
law mode of making the privilege available. And that silence was but a mode
of making the privilege available, and was not of the essence of the privilege
itself, is conclusively proven by all that current of enlightened authority, to
which we yield our fullest assent, which holds that the privilege has ceased
when the crime has been pardoned, when the witness has been tried and
acquitted, or is adjudged guilty, or when the prosecution, to which he was
exposed, has been barred by lapse of time ... But the Legislature has so
changed the common-law rule, by the enactment in question in the
substitution of a rule that the testimony required to be given by the act, shall
never be used against the witness for the purpose of procuring his conviction
for the crime or misdemeanor to which it relates, that it is no longer necessary
for him to claim his privilege as to such testimony, in order to prevent its
being afterwards used against him. And the only question that can possibly
arise under the present state of the law, as applicable to the case now before
us, is as to whether our statutory regulations afford sufficient protection to
the witness, responsive to this new rule and to his constitutional guarantee
against compulsory self-accusation ...
Considering the objectives sought to be achieved by PD No. 1886 the
provision thereof making testimony and evidence given before the Board
inadmissible in evidence against the ones giving the same, provides
protection beyond that granted by the Constitutional provision against self-
173
incrimination, otherwise it will be constitutionally suspect. Counselman vs.
Hitchcock, 142 US 547, 35 L Ed 1110.
Of relevance are the observations of the District Court, N.D. Illinois, in
United States vs. Armour & Co., 112 Fed 808, 821, 822:
All of these immunity acts are relied upon by the individual defendants, and,
while expressed in, slightly varying language, they all mean the same thing,
and each of them is a substitute for the privilege contained in that clause of
the fifth amendment to the Constitution, reading:
'Nor shall any person be compelled in any criminal case to be a witness
against himself.'
This fifth amendment deals with one of the most cherished rights of the
American citizen, and has been construed by the courts to mean that the
witness shall have the right to remain silent when questioned upon any
subject where the answer would tend to incriminate him. Congress by the
immunity laws in question, and by each of them, has taken away the privilege
contained in the amended it is conceded in argument that this cannot be done
without giving to the citizen by way of immunity something as broad and
valuable as the privilege thus destroyed We are not without authority on this
question. By a previous act, Congress undertook to take away the
constitutional privilege by giving the citizen an equivalent, and the Supreme
Court held in the case of Counselman v. Hitchcock 142 U.S. 547, 12 Sup. Ct.
195, 35 I Ed., 1110, that the substitution so given was not an equivalent. Then,
at various times, the immunity acts in question were passed by Congress with
full knowledge that in furnishing a substitute for this great right of the citizen,
it must give something as broad as the privilege taken away. It might be
broader, but it could not be narrower.
Now, in my judgment, the immunity law is broader than the privilege given
by the fifth amendment, which the act was intended to substitute. The
privilege of the amendment permits a refusal to answer. The act wipes out the
offense about which the witness might have refused to answer. The privilege
permits a refusal only as to incriminating evidence. The act gives immunity
for evidence of or concerning the matter covered by the incident and the
evidence need not be self-incriminating. The privilege must be personally
claimed by the witness at the time. The immunity flows to the witness by
action of law and without any claim on his part. Brown v. Walker, 161 U.S.
591, 16 Sup. Ct. 644, 40 L. Ed. 819; Hale vs. Henkel (recently decided) 26
Sup. Ct. 370, 50 L. Ed. -; State v. Quarles 13 Ark. 307, quoted in 142 U.S.
567, 12 Sup. Ct. 199 (35 L. Ed. 1110); People Sharp, 107 N.Y. 427, 14 N.E.
319, 1 Am. St. Rep. 851; Brown v. Walker approved in Lamson v. Boyden,
160 I11. 613, 620, 621, 43 N.E. 781: People v. Butler, St. Foundry, 201 I11.
236, 248, 66 N.E. 349.
I am further of opinion that the immunity given by the act must be as broad
as the liabilities imposed by the act. The act calls upon the citizen to answer
any 'lawful requirement' of the Commissioner. 'Require' means to ask of right
and by authority. Webster's Dictionary. Tenn. Coal Co. v. Saller (C.C.) 37
Fed. 545, 547. Anything is a requirement by a public officer which brings
home to the person called upon that the officer is there officially and desires
compliance. 'Demand' and' require' are synonymous. Miller v. Davis, 88 Me.
454, 34 Atl. 265. The citizen may be punished for refusal to answer such
lawful requirement. I am of opinion that when the Commissioner of
Corporations, who has power to compel, makes his demand, it is the duty of
the witness to obey.
The contention has been made that in order to get immunity the citizen shall
wait until the compulsion becomes irresistible. That is the effect of the
government contention. I am not able to bring my mind to accept that
doctrine. If I am right in saying that immunity flows from the law l, without
any claim on the part of the defendant and at different times that has been
conceded here in argument then no act of any kind on his part which amounts
to a claim of immunity, which amounts to setting up a claim of immunity is
demanded by the law. The law never puts a premium on contumacy. A person
does not become a favored citizen by resistance to a lawful requirement. On
the contrary, the policy of the law favors the willing giving of evidence
whenever an officer entitled to make a demand makes it upon a citizen who
has no right to refuse. And it would be absurd and un-American to favor the
citizen who resists and places obstacles in the way of the government as
against the citizen who, with a full knowledge of the law, obeys without
resistance the demand of an officer who has the legal right to make the
demand for something which the citizen has no legal right to refuse. This,
then, is the proposition to which we are led. When an officer, who has a legal
right to make a demand, makes such demand upon a citizen who has no legal
light to refuse, and that citizen answers under such conditions, he answers
under compulsion of the law.
174
There is no merit then to the contention that private respondents should be
invoked the privilege against self-incrimination before the Agrava Board for
precisely PD No. 1886 had explicitly provided that the testimony of those
who testified before the Board can not be used against them. It will be a
meaningless act of supererogation to require that said witnesses before
answering any question addressed to them must invoke their privilege against
self-incrimination. The phrase "after having invoked his privilege against
self-incrimination" in Section 5 of PD No. 1886 to be consistent with the
intention of said decree, should refer to the time that the testimony of the
witness will be used against him in another proceeding, such as the cases now
pending before the Sandiganbayan. It could not refer to the proceedings
before the Agrava Board because no one is being accused before said Board
and no matter how self-incriminating the testimony of said witness is, he runs
no risk of being prejudiced, much less convicted by the Agrava Board. It is
in the prosecution of cases based on the report of said Board that the witness
should invoke his right against self-incrimination. These private respondents
did just that when they moved for the exclusion in evidence of their statement
before the Agrava Board. Any other interpretation would defeat the very
purpose of PD No. 1886.
TEEHANKEE, J., dissenting:
The majority decision is based on erroneous premises, viz. what the case at
bar presents a "novel question;" that "this Court has not been previously
called upon to rule on issues involving immunity statute" and is burdened
with the monumental task" of "laying the criteria ... (to) build future
jurisprudence on a heretofore unexplored area of judicial inquiry." 1 The fact
is that we have a wealth of settled jurisprudence and precedents, Philippine
and foreign, that control the determination of the simple issue at bar and call
for the setting aside of the exclusion order issued by respondent court
(Sandiganbayan) which wrongly rules as totally and absolutely inadmissible
the testimonies given by private respondents General Ver and Olivas and their
six co- respondents (all charged as accessories) as well as all the documents,
records and other evidence produced by them before the Fact-Finding Board,
notwithstanding that all were represented by counsel 2 and none of them
invoked the privilege or right against self- incrimination or made any claim
or objection at the time of his testimony before the Board that any question
propounded to him and which he willingly answered called for an
incriminating answer against himself.
The following vital considerations based on settled jurisprudence and
precedents show that respondent court acted with gross error and
misconception of the applicable principles of the right against self-
incrimination:
1. Respondent court grossly disregarded the settled guidelines laid
down for trial courts by this Court of Appeal vs. Paylo 3 thru Mr. Justice
J.B.L. Reyes, speaking for a unanimous Court, Chat
By so doing [ordering the exclusion of the proferred confessions of the two
accused upon a ground not raised by counsel but motu proprio by the trial
court, i.e. lack of independent proof of conspiracy] the [trial] court
overlooked that the right to objection is a mere privilege which the parties
may waive; and if the ground for objection is known and not seasonably
made, the objection is deemed waived and the [trial] court has no power, on
its own motion, to disregard the evidence (Marella vs. Reyes, 12 Phil. 1) ...
Suffice it to say that the lower court should have allowed such confessions to
be given in evidence at least as against the parties who made them, and admit
the same conditionally to establish conspiracy, in order to give the
prosecution a chance to get into the record all the relevant evidence at its
disposal to probe the charges. At any rate, in the final determination and
consideration of the case, the trial court should be able to distinguish the
admissible from the inadmissible, and reject what, under the rules of
evidence, should be excluded.
Trial courts should be liberal in the matter of admission of proof and avoid
the premature and precipitate exclusion of evidence on doubtful objections to
its admissibility, citing the Court's long-standing basic ruling and policy in
Prats & Co. vs. Phoenix Ins. Co. 4 that reception and admission of evidence
objected to on doubtful or technical grounds is ultimately the less harmful
course to either litigant, since the Supreme Court upon appeal would then
have all the materials before it necessary to make a correct judgment (instead
of returning the case for a new trial which only prolongs the determination of
the case); and
There is greater reason to adhere to such policy in criminal cases where
questions arise as to admissibility of evidence for the prosecution, for the
unjustified exclusion of evidence may lead to the erroneous acquittal of the
175
accused or the dismissal of the charges, from which the People can no longer
appeal 5
2. The right against self-incrimination is found in the first sentence of
section 20 of the Bill of Rights of the 1973 Constitution stating that "No
person shall be compelled to be a witness against himself." This single
sentence constituted the whole text of section 18 of the Bill of Rights of the
19,7,5 Constitution. This right against self-incrimination has a settled
meaning in jurisprudence which is fully applicable here since the right against
self-incrimination was first enforced here as an inviolable rule" in U.S.
President McKinley's instructions under date of April 7, 1900 to the Taft
Commission. 6 As recounted by the late Mr. Justice Conrado Sanchez as
ponente for a unanimous Court in the leading 1968 case of Chavez vs. Court
of Appeals 7, "Mr. Justice Malcolm, in expressive language, tells us that this
maxim was recognized in England in the early days 'in a revolt against the
thumbscrew and the rack.' An old Philippine case [1904] speaks of this
constitutional injunction as 'older than the Government of the United States;'
as having 'its origin in a protest against the inquisitorial methods of
interrogating the accused person;' and as having been adopted in the
Philippines 'to wipe out such practices as formerly prevailed in these Islands
of requiring accused persons to submit to judicial examinations, and to give
testimony regarding the offenses will which they were charged.' " But Mr.
Justice Sanchez equally stressed that "(an) accused occupies a different tier
of protection from an ordinary witness. Whereas an ordinary witness may be
compelled to take the witness stand and claim the privilege as each question
requiring an incriminating answer is shot at him, 8 an accused may altogether
refuse to take the witness stand and refuse to answer any and all questions."
9 incriminating questions, and not a prohibition of inquiry" and "must be
As restated by Mr. Justice J.B.L. Reyes for a unanimous Court in Suarez vs.
Tengco, 10 "No legal impediment exists against a litigant calling any of the
adverse parties to be his witness. ... True, an accused in a criminal case may
not be compelled to testify, or to so much as utter a word, even for his own
defense (U.S. vs, Junio, 1 Phil. 50; U.S. vs. Luzon, 4 Phil. 344: U.S. vs.
Binayoh 35 Phil. 23; Sec. l(c), Rule 111, Rules of Court). But while the
constitutional guaranty against self-incrimination protects a person in all
types of cases, be they criminal, civil, or administrative (Art. 111, Sec. 1, No.
18, Phil. constitution: Bermudez vs. Castillo, 64 Phil, 483), said privilege in,
proceedings other than a criminal case against him who invokes it, is
considered an option of refusal to answer incriminating question, and not a
prohibition of inquiry.
Except in criminal cases, there is no rule prohibiting a party litigant from
utilizing his adversary as witness. As a matter of fact, section 83 of Rule 123,
Rules of Court expressly authorizes a party to call an adverse party to the
witness stand and interrogate him. This rule is, of course, subject to the
constitutional injunction not to compel any person to testify against himself.
But it is established that the privilege against self-incrimination must be
invoked at the proper time, and the proper time to invoke it is when a question
calling for a incriminating answer is propounded. This has to be so, because
before a question is asked there would be no way of telling whether the
information to be elicited from the witness is self-incriminating or not. As
stated in Jones on Evidence (Vol. 6, pp. 4926-4927), a person who has been
summoned to testify 'cannot decline to appear, nor can he decline to be sworn
as a witness' and 'no claim of privilege can be made until a question calling
for a incriminating answer is asked, at that time, and, generally speaking, at
that time only, the claim of privilege may properly be interposed.' (Gonzales
vs. Sec. of Labor, L-6409, February 5, 1954, 11 cit. in Navarro, Criminal
Procedure, p. 302.)'
Suarez was cited with favor and reaffirmed in Bagadiong vs. Gonzales, 12
wherein once again the Court, with the concurrence in the result of the now
Chief Justice, under similar facts held that the petitioner (provincial treasurer)
could not refuse to take the stand as an adverse party in a civil case since the
privilege against self-incrimination "in proceedings other than a criminal case
against him who invokes it, is considered an option to refuse to answer
invoked when a question calling for an incriminating answer is propounded,
because before a question is asked, there would be no way of telling whether
the information to be elicited from the witness is self-incriminating or not."
The Court therein denied "the petition to prohibit respondent judge from
directing petitioner to take the witness stand and testify ... without prejudice
to petitioner's properly invoking the guaranty against self-incrimination when
questions are propounded to him on the stand. Costs against the petitioner."
3. All the respondents at bar were in this category of ordinary witnesses
in the hearings of the Fact-Finding Board. They were not accused in any
criminal case nor were they persons under custodial interrogation who under
the second part of section 20 of the Bill of Rights (consisting of three
176
additional sentences 13) were given additional rights to silence and counsel
and to be informed of such rights and to the out-lawing of any confession
obtained in violation of the rights guaranteed in the cited section, by virtue of
the incorporation into the Bill of Rights of the rights granted in the rulings of
the U.S. Supreme Court in the Miranda-Escobedo cases. As noted by former
Chief Justice Enrique M. Fernando, "(I)t amounts to an acceptance of the
applicability in this jurisdiction of the epochal American Supreme Court
decision in Miranda vs. Arizona, the opinion being rendered by Chief Justice
Warren. It is thus now a part of our fundamental law. Such doctrine was
promulgated in response to the question of the admissibility of statements
obtained from an individual interrogated under police custody, considering
that such a time and under the stress of such conditions, his right against self-
incrimination could be rendered futile." 14 The Miranda pronouncements
thus became necessarily a part and parcel of the additional rights granted in
the cited section 20, as made by the late U.S. Chief Justice Warren in the
Miranda case thus: "The prosecution may not use statements, whether
exculpatory or inculpatory, stemming from custodial interrogation of the
defendant unless it demonstrates the use of procedural safeguards effective to
secure the privilege against self-incrimination. By custodial interrogation we
mean 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. " 15 These additional Miranda rights could not be invoked
by respondents, as the members of the Fact-Finding Board were not law
enforcement officers nor were respondents under custodial interrogation.
As ordinary witnesses before the Fact-Finding Board and under the settled
jurisprudence above-cited, they could not invoke the right to silence and
refuse to take the witness stand. Their right and privilege (which is not self-
executory or automatic ipso jure) was, while testifying, whether voluntarily
or by subpoena, to invoke the privilege and refuse to answer as and when a
question calling for an incriminating answer is propounded. Failure to invoke
the privilege which is personal does automatically result in its loss ipso facto.
The law, usage and settled jurisprudence uniformly require that the privilege
must be asserted or else is lost. The court or board upon its invocation still
has to pass upon and rule upon the proper application of the privilege. As
restated by Francisco, the rule and exceptions are: "Certainly, where the
witness, on oath declares his belief that the answer to the question would
criminate or tend to criminate him, the court cannot compel him to answer,
unless it is clear perfectly, from a careful consideration of all the
circumstances of the case, that the witness is mistaken, or is acting in bad
faith, and that the answer cannot possibly have any such tendency. " 16
4. The view that withal, it is best, although not required, that a warning
to the witness of his option to refuse an answer to incriminating questions as
advanced even by the Tanodbayan at the hearing dates back to a century ago
and has been long discarded as "witnesses are usually well enough advised
beforehand by counsel as to their rights when such issues impend" and "as
general knowledge spread among the masses and the preparation for
testimony became more thorough." Thus, "ignore, the bible on the law of
evidence so remarks and adds that "there is no reason for letting a wholesome
custom degenerate into a technical rule." —
It is plausible to argue that the witness should be warned and notified, when
a incriminating fact is inquired about, that he has an option to refuse an
answer; and this view was often insisted upon, a century ago, by leaders at
the Bar,
xxx xxx xxx
But there are opposing considerations. In the first place, such a warning
would be an anomaly; it is not given for any other privilege; witnesses are in
other respects supposed to know their rights; and why not here? In the next
place, it is not called for by principle, since, until the witness refuses, it can
hardly be said that he is compelled to answer; nor is it material that he
believes himself compelled; for the Court's action, and not the witness' state
of mind, must be the test of compulsion. Again, the question can at any rate
only be one of judicial propriety of conduct, for no one supposes that an
answer given under such an erroneous belief should be struck out for lack of
the warning. Finally, in practical convenience, there is no demand for such
rule; witnesses are usually well enough advised beforehand by counsel as to
their rights when such issues impend, and judges are too much concerned
with other responsibilities to be burdened with the provision of individual
witnesses' knowledge; the risk of their being in ignorance should fall rather
upon the party summoning than the party opposing.
Nevertheless, it is plain that the old practice was to give such a warning, when
it appeared to be needed. But, as general knowledge spread among the
masses, and the preparation for testimony became more thorough, this
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practice seems to have disappeared in England, so far at least as any general
rule was concerned. GENERAL VER:

In the United States, both the rule and the trial custom vary in the different I did not bring any counsel, madame, but ... if I need a counsel, madame, I
jurisdictions. No doubt a capable and painstaking judge will give the warning, could probably look for... probably ...
where need appears, but there is no reason for letting a wholesome custom
degenerate into a technical rule. 17 JUSTICE AGRAVA:

But from the environmental facts and circumstances of the Fact-Finding Yes?
Board hearings, to require such a warning to the witness of his option of
refusal to answer incriminatory questions would have been an exercise in GENERAL VER:
absurdity and futility, As is a matter of public knowledge, respondents had
concluded in their investigation that Galman was the assassin of the late I may call Fiscal Parena or the Public Coordinator. I was talking to Atty. Tan
Senator Aquino. As observed by former Senator Ambrosio Padilla as amicus to assist me, in the protection of my constitutional rights ...
curiae at the hearing on the merits of August 15, 1985, they were all too eager
to testify and make a strong effort to gain support from the Fact-Finding JUSTICE AGRAVA:
Board and the public for the military version and report that the assassin was
Galman who was forthwith gunned down by the military escorts and guards Yes.
at the tarmac. It would have been ridiculous, if not bordering on officiousness
and impropriety, to warn them as the highest ranking military officers of their GENERAL VER:
option of refusal to answer incriminatory questions and also as the majority
holds, 18 of their right to remain silent. When respondents generals appeared ... if it is necessary:
before the Board, respondent Ver precisely made the opening statement that
ATTY. TAN:
GENERAL VER:
Your Honor, please, it is part of the function of this office to help the witness
I welcome this opportunity, Madame Justice, members of this Honorable if he doesn't have counsel, and so, if the General is willing to have me, I will
Board, Dean, Gentlemen this opportunity to assist ... this Honorable Board in happily serve as counsel, Your Honor.
the quest for truth and justice, We all deplore this tragic incident which is
now the subject of inquiry, This Board, this Honorable Board is mandated to JUSTICE AGRAVA:
conduct a free, full and exhaustive investigation into the matter under
investigation We all hope that my testimony, madame, will somehow dispel All right.
any misconception, or any misinformation surrounding this tragic incident. I
am now ready to answer your questions. GENERAL VER:

JUSTICE AGRAVA: Thank you. 19

Now, General, at the outset, we give the right and the privilege for every Respondent Olivas likewise testified before the Board in response to its
witness to be assisted by counsel Do you have your counsel with you this invitation to assist it in determining the true facts and circumstances
morning? surrounding the double killing.

178

6. The majority decision would go around this by asserting without
basis in the record that "(A)ll the private respondents, except Generals Ver
and Olivas, are members of the military contingent that escorted Sen. Aquino
while embarking from the plane that brought him home to Manila on that
fateful day. Being at the scene of the crime as such, they were among the first
line of suspects in the subject assassination. General Ver on the other hand,
being the highest military authority of his co-petitioners labored under the
same suspicion and so with General Olivas, the first designated investigator
of the tragedy, but whom others suspected, felt and believed to have bungled
the case. The papers, especially the foreign media, and rumors from ugly
wagging tongues, all point to them as having, in one way or another
participated or have something to do, in the alleged conspiracy that brought
about the assassination. Could there still be any doubt then that their being
asked to testify, was to determine whether they were really conspirators and
if so, the extent of their participation in the said conspiracy?" In fact, the
respondent court's decision and separate opinions as well as the majority
decision at bar and the separate concurring opinions all fail to specify the
particular portions of the testimonies of respondents or any specific question
and answer that can be in any way deemed to be self-incriminating. Indeed,
even if we assumed arguendo that they were warned of their right against
self-incrimination and tried absurdly to invoke the same, there is no specific
question and answer by way of testimony that could be pointed to them as
having been made under compulsion for the simple reason that their
testimony was in full support of their own military report that Galman was
Aquino's killer and for which they were trying to gain the Board's acceptance.
In the all too brief and inadequate deliberations held on August 20 and 21,
1985 after the hearing on the merits of August 15, 1985, without reaching a
definite conclusion, the ponente reported and I share this view from a cursory
examination, for want of material time, of the excluded testimonies only since
the excluded documents, records and other evidence produced by them were
not before the Court that there is nothing in the excluded testimonies that
could in any way be deemed self-incriminatory perse. So there would be no
legal basis whatever for their exclusion. But the ponente circulated only last
August 26th at noon his draft for dismissal of the petitions which were filed
only last month. And its release has been set for August 30th.
7. There has not been enough time to weigh and ponder on the far-
reaching consequences of the decision at bar. The decision orders the total
and unqualified exclusion of the testimonies and evidence produced before
the Fact-Finding Board by the eight respondents charged as accessories "even
though (they) failed to claim (their) privilege before giving the incriminating
testimony" (citing 21 Am. Jur. 2d. 218). But the cited compilation of
American State and Federal Law expressly cautions that "The question
whether a witness must claim exemption . on from self-incrimination to be
entitled to immunity from subsequent prosecution must in each case be
determined in the light of constitutional and statutory provisions in the
jurisdiction where the question arises" (21 Am. Jur. 2d. 151). It recites on the
same cited page that "Under a statute granting immunity to persons who have
been compelled to testify, one who has appeared voluntarily and testified
without claiming his privilege against self-incrimination or one who has
appeared and testified pursuant to a void subpoena or one addressed to
another person, without claiming the privilege, cannot say he has been
compelled to testify, and therefore, he is not entitled to immunity." And the
necessity of claiming the privilege against self-incrimination before an
administrative officer or board such as the Fact Finding Board is recognized
to be essential, thus:
This is not only equally true as for the case of testimony in a judicial trial, but
the explicitness is here even more essential, and particularly where the
administrative officer makes a general demand for documents or testimony
upon a broad class of topics. The reason is clear. The officer has testimonial
powers to extract a general mass of facts, or which some, many, or most will
certainly be innocent and unprivileged, some may be privileged
communications (e.g., between attorney and client) whose privilege remains
unaffected by the statute defining his powers, and some may be privileged as
self-incriminating but liable to become demandable by overriding this
privilege with a grant of immunity. Among these mass of facts, then, the
officer will seek those which are relevant to his administrative inquiry; he
cannot know which of them fall within one or another privilege in particular,
which of them tend to criminate at all, or to criminate a particular person; if
such facts are there, he may not desire or be authorized to exercised the option
of granting immunity so as to obtain them; his primary function and power is
to obtain the relevant facts at large, and his power to obtain a special and
limited class of facts by grant of immunity is only a secondary one, and one
which he will not exercise till a cause arises, if even then.
For these reasons of practical sense, then, as well as for the inherent
requirements of principle already noticed for judicial officers, it is
particularly true for an inquiry by an administrative officer that the witness
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must explicitly claim his privilege, and specifically the privilege against self-
incrimination, and must then be overridden in that claim, before immunity
can take effect. (VII Wigmore on Evidence, 2282, pp. 517-518)
The concurrence of Justice Vera Cruz sounds even more ominous thus:
I believe that where evidence is produced by a witness in accordance with the
conditions of the statute granting immunity such as P.D. No. 1886, as
amended, its immunity provisions attach instantly and it is entirely immaterial
what use the investigation authority makes of it (People ex rel. Massarsky v.
Adams, 47 N.Y.S. 2d 375, 62 N.E. 2d 244).
Consequently, the evidence, given before the Agrava Board by the accused
in the instant cases namely, Generals Fabian Ver and Prospero Olivas, and
Sergeants Pablo Martinez, Tomas Fernandez, Leonardo Mojica, Pepito Torio,
Prospero Bona and Aniceto Acupido cannot be used against them and this
proscription did attach instantly when they testified before the same Board.
Verily, the prohibition stands, irrespective of the purpose for which the
prosecution would like to use this evidence.
The total and unqualified exclusion of the testimony and evidence granted by
respondent court and sustained by the majority decision herein refers
expressly to the eight respondents charged as accessories. Would not this
unprecedented grant of immunity and exclusion of testimony be now claimed
by the rest of the twenty-two accused charged as principals except for the
lone civilian? As reported by the press, respondent court has suspended its
trial and placed the pressure on the Court to rush its decision, as "(T)he so-
called 'trial of the century' has been delayed since last week on motion of the
defense panel which had argued that the high court's decision on the
admissibility of Ver's testimonies was a vital prerequisite to the presentation
of witnesses for the defense. " 20 Would this not result in the People holding
an empty bag of excluded testimonies and evidence, since to all intents and
purposes all respondents-accused testified before the Fact-Finding Board?
Would their testimonies be inadmissible for purposes even of impeaching
such testimony as they may now give before respondent court? These
ponderous questions need not confront us had we but required respondent
court to hew to the settled procedure and doctrine of Yatco (supra, par. I
hereof) of giving the prosecution a chance to get into the record its relevant
evidence until the final determination and consideration of the case, for the
unjustified exclusion of evidence of the prosecution may lead to the erroneous
acquittal of the accused or dismissal of the charges, from which the People
can no longer appeal.
8. The alleged "ambiguous phraseology" of section 5 of P.D. 1886
cited in respondent court's questioned order and bolstered by the majority
decision's "novel" conclusion and ruling that the cited section quoted therein
21 requires a claim from the witness of the privilege against self-
incrimination but "forecloses under threat of contempt proceedings [under
section 4] against anyone who makes such a claim. But the strong testimonial
compulsion imposed by section 5 of P.D. 1886 viewed in the light, of the
actions provided in section 4, infringes upon the witness' right against self-
incrimination. As a rule, such infringement of the constitutional right renders
inoperative the testimonial compulsion, meaning, the witness cannot be
compelled to answer UNLESS a co-extensive protection in the form of
IMMUNITY is offered. Hence, under the oppressive compulsion of P.D.
1886, immunity must in fact be offered to the witness before he can be
required to answer, so as to safeguard his sacred constitutional right. But in
this case, the compulsion has already produced its desired results the private
respondents had all testified without offer of immunity. Their constitutional
rights are, therefore, in jeopardy. The only way to cure the law of its
unconstitutional effects is to construe it in the manner as if IMMUNITY had
in fact been offered. We hold, therefore, that in view of the potent sanctions
imposed on the refusal to testify or to answer questions under Sec. 4 of P.D.
1886, the testimonies compelled thereby are deemed immunized under
Section 5 of the same law. The applicability of the immunity granted by P.D.
1886 cannot be made to depend on a claim of the privilege against self-
incrimination which the same law practically strips away from the witness. "
Emphasis supplied).
It bears emphasis that none of respondents made any such claim against self-
incrimination. The "oppressive compulsion" if it may be so-called, consists
of a maximum penalty of P200. fine and/or 30 days imprisonment for direct
contempt. As indicated, it would be ridiculous for any respondent to 1 make
such claim when his testimony was but in full support of their own military
theory and report that Galman killed Aquino.
The language of the cited section 22 is plain and simple. It excuses no one
from testifying and producing books and records but grants him immunity
from prosecution (except for perjury) after having invoked his privilege
against self-incrimination " There is nothing oppressive about such
180
compulsion in exchange for immunity provided the witness invokes his and
aims his privilege a against self-incrimination.
In the Court's Resolution of July 9, 1985, Mr. Justice Aquino, voting to
dismiss outright the petitions. opined that The clause 'concerning which lie is
compelled to testify after having invoked his privilege against self-
incrimination' is surplusage. It is in conflict with the first clause which, as
already stated, gives immunity to the witness except in case of perjury. So,
section 5 should be read as if that clause were not there.This is contrary to the
rules of statutory construction that there is no room for construction when tile
text is plain and simple, i.e. requires invocation and that the provisions must
be taken in context and all the words taken into account and given their full
meaning. The Anti-Gambling Law, Act No. 1757, enacted on October 9,
1907 by the Philippine Commission (probably the first Philippine immunity
statute) granted such absolute immunity and does not contain the conditional
clause requiring that the witness invoke his privilege against self-
incrimination. Section 10 of the cited Act reads:
Sec. 10. Upon any investigation or proceeding for violation of this Act no
person shall be excused from giving testimony upon the ground that such
testimony would tend to convict him of a crime, but such testimony cannot
be received against him upon any criminal investigation or proceeding;
Provided, however, That no person so testifying shall be exempt from
prosecution or punishment for perjury committed in the course of any
proceeding or investigation had by virtue of [his Act. (1 CPS [Rev. Ed.], 190)
But when the statute grants conditional immunity (and not absolute as in the
above-quoted section 10 of the Anti-Gambling Act.), then it explicitly
contains the cited conditional clause in section 5 of P.D. 1886 granting
immunity only when "he is compelled to testify after having invoked his
privilege against self-incrimination. "
This is but in accord with long-settled Philippine jurisprudence cited above
(supra. paragraph 2 hereof), that the witness has an option of refusal to answer
incriminatory questions, which he loses ipso facto if he does not invoke the
privilege and nevertheless answers the questions. Here, in review of the
national and international importance of the case with the country's very
prestige at stake, the P.D. added the incentive of offering immunity: "The
purpose of immunity provisions is to aid prosecuting officers by inducing
criminals or their confederates to turn state's evidence and tell on each other,
to enable prosecuting officers to procure evidence which would otherwise be
denied to them because of the constitutional right against self-incrimination,
and at the same time to protect every person from gluing testimony which
directly or indirectly would be helpful to the prosecution in securing an
indictment or a conviction. The provisions for immunity are or should be as
broad as or co-extensive with the constitutional provisions granting the
privilege against self-incrimination." (21 Am. Jur. 2d. Criminal Law, sec.
148). It is bad enough that no state's evidence turned up to tell on his
confederates in exchange of immunity. But to call the cited section " a booby
trap for the unsuspecting or unwary witness" unless it was construed as
granting absolute and unconditional immunity from the very fact of merely
testifying as a witness before the Board without claiming immunity nor
giving any incriminatory information that would aid the state to determine
the true facts about Aquino's assassination would be a sell-out. It would make
a shambles of the letter and spirit as well as the salutary intent and objective
of the Decree to ferret out the truth and obtain state witnesses.
9. The truncated and distorted reading of the cited section 5 which
consists of a single integrated paragraph and splitting it into two isolated parts
so as to allow the privilege against self-incrimination (which was already lost
for failure to claim it in the Board hearings) to be resurrected and raised in a
much later time frame and "subsequent criminal proceeding" is against all
usage and rules of statutory construction, not to mention the long line of
above-cited jurisprudence to the contrary. And if there still be doubt, we need
only reproduce hereunder the similar wording of Senate Joint Resolution 137
(Public Law 88-202) after which section 5 of P.D. 1886 was patterned. Said
law was enacted by the U.S. Congress in December 1963 to empower the
Warren Commission to issue subpoenas requiring the testimony of witness
and the production of evidence relating to any matter under its investigation.
The Report of the President's Commission on the Assassination of President
John F. Kennedy in its foreword on page X stated that "In addition, the
resolution authorized the Commission to compel testimony from witnesses
claiming the privilege against self-incrimination under the fifth amendment
to the U.S. Constitution by providing for the grant of immunity to persons
testifying under such compulsion." (Emphasis supplied). The cited Public
Law reads:
(e) No person shall be excused from attending and testifying or from
producing books, records, correspondence, documents, or other evidence in
obedience to a subpoena, on the ground that the testimony or evidence
181
required of him may tend to incriminate him or subject him to a penalty or
forfeiture but no individual shall be prosecuted or subjected to any penalty or
forfeiture (except demotion or removal from office) for or on account of any
transaction matter, or thing concerning which he is compelled, after having
claimed his privilege against self-incrimination to testify or produce
evidence, except that such individual so testifying shall not be exempt from
prosecution and punishment for perjury committed in so testifying.
(Emphasis supplied).
10. As already indicated above, none of the respondents, public and
private, has indicated the specific portions of their testimony that they have
been "oppressively compelled" to glue, in alleged violation of their privilege
against self-incrimination. The reason for this is that they all testified
voluntarily and eagerly to support the military report and version that Galman
killed Senator Aquino. The Board unanimously rejected the military report
and found that the killings were the product of criminal conspiracy. A brief
flashback is herein appropriate: Within 60 seconds from his being led away
by soldiers from his plane that had just landed at the Manila International
Airport on Sunday, August 21, 1983 at past one p.m., former Senator Benigno
S. Aquino, Jr. who was coming home after three years of self-exile in the U.S.
laid dead face down on the tarmac, with his brain smashed by a bullet fired
point blank into the back of his head by a murderous assassin. 23 Also lying
dead on the tarmac, face up, near the senator was another man, to be Identified
much later as Rolando Galman, whom the soldiers admittedly gunned down.
The military pointed to him as Aquino's assassin, who had somehow
allegedly penetrated the air-tight security of close to 2000 men ringing the
airport. The military version met with great public disbelief and skepticism.
The first fact-finding commission created under Administrative Order No.
469 dated August 24, 1983 and P.D. 1879 dated August 27, 1983 was the
object of several suits charging bias and that the President "had already
prejudged the case, by rejecting the version of foreign media that it is one of
the soldiers, supposed to guard Aquino, who fatally shot him." 24 The said
commission was dissolved per P.D. 1886, dated October 14, 1983 (later
amended by P.D. 1903 dated February 8, 1984) which created the ad hoc
Fact-Finding Board with plenary powers to investigate "the treacherous and
vicious assassination (which) has to all Filipinos become a national tragedy
and national shame ... (and) to determine the facts and circumstances
surrounding the killing and to allow for a free, unlimited and exhaustive
investigation into all the aspects of said tragedy." The Board after extensive
hearings, submitted to the President their majority report on October 24,
1984, while the chairman former Court of Appeals Justice Corazon Agrava
submitted her minority report one day earlier on October 23, 1984. All five
members of the Board unanimously rejected the official military version that
Galman was the assassin and instead found that there was criminal
conspiracy. Their main difference of opinion is that the four-member majority
found twenty-five military men (headed by respondents Generals Ver, Olivas
and Luther Custodia) and one civilian "indictable for the premeditated killing
of Senator Benigno S. Aquino, Jr. and Rolando Galman at the MIA on August
21, 1983." The chairman's report confined the conspiracy to seven men
headed by General Custodia. The Tanodbayan, after conducting the
preliminary investigation, adopted the Board's majority report recommending
the indictment of the accused as "involved in this conspiracy, either as
principals, upon the theory that the act of one is the act of all, or as
accessories, for attempting to hide the corpus of the offense." The eight
accessories so indicted are the private respondents herein named headed by
respondents Ver and Olivas. (The chairman in her minority report had found
that "(T)he indications are that the plotters had agreed that only one would be
the assassin; that the others can either point to Galman as the killer; or they
can state that they did not see the shooting; and that they will give false
testimony to mislead and confuse.
11. Only the former lawyers of the Fact-Finding Board created under
P.D. No. 1886, consisting of Messrs. Andres R. Narvasa, Bienvenido A. Tan,
Jr., Mario E. Ongkiko and Francisco A. Villa have given us the answer that
there is nothing incriminatory per se in the testimonies of the respondents, in
the Memorandum submitted by them, to wit:
I. The so-called 'Galman Theory that it was Rolando Galman who
killed Senator Aquino is either true or untrue, a matter the
SANDIGANBAYAN will have to resolve.
II. If the 'Galman Theory' be true as advocated by the military officers
concerned then the testimony of Ver, et al. is true. It is not self-incriminatory.
There would then be no reason to exclude it.
If, on the other hand, the theory be untrue as the prosecution in turn advocates
then the testimony of Ver, et al. is untrue. It is incriminatory of them, because
by giving it and thereby seeking to hide the crime, they incriminated
themselves. Withal there would also be no reason to exclude it. Surely, after
their plot to deceive the Board had been exposed, they should not now be
182
allowed to use the law to bring about exclusion of the very proof of their
deception.
In short, the testimonies of respondents could only be deemed incriminating
if it be found that they sought thereby to hide or cover up the crime and thus
incriminate themselves, as accessories to the murder of Senator Aquino. The
former Fact-Finding Board lawyers amplify their theory, as follows:
5. The plain language of Section 5, PD 1886 precludes its
interpretation as extending immunity to all testimony or evidence produced
before the Board in obedience to subpoena regardless of whether the witness
giving such evidence invokes the privilege against self-incrimination or not.
— to grant the petitions at bar and to set aside the questioned exclusion order.
6. The fact is, the invocation by Ver, et al. of such right would have
been self-defeating first, it would have prevented them from presenting
evidence in substantiation of the 'Galman Theory,' which they wished the
Board to accept; and second, it might have exposed to some extent their real
objective, which was to deceive the Board.
7. It would have been incongruous for Ver, et al. to have claimed that
their testimony would incriminate them as accessories to the murder of
Aquino when they were, by testifying, actually in process of committing that
precise crime, becoming accessories.
8. Neither PD 1886 nor the Constitution should be used as a shield for
crime, fraud or trickery.
9. The foregoing propositions were ignored by the
SANDIGANBAYAN. Instead, with all due respect, it has —
a. given Section 5, PD 1886 a strained construction not justified by and
contrary to its plain language;
b. given Section 20, Article IV, Constitution, a meaning at odds with
its plain terms and contrary to relevant decisions of this Honorable Supreme
Court; and
c. sanctioned the use of legal provisions to shield persons from
criminal liability arising from their perfidious testimony before the Fact-
Finding Board.
There is no legal ground nor justification for the exclusion order. It is for
respondent court, upon consideration of the evidence for the People, without
any exclusion, and of the evidence for the defense in due course, to render its
verdict of guilty or not guilty.
With a word of commendation for the former Fact-Finding Board lawyers
and former Senator Ambrosio Padilla and Atty. Ramon Gonzales, whose
memoranda as amid curiae, have been of great assistance, I vote, accordingly,
MELENCIO-HERRERA, J., dissenting:
I vote to grant the Petitions and to reverse the ruling of the Sandiganbayan.
The resolution of the issue revolves around the interpretation to be given to
Sec. 5 of PD No. 1886, reading as follows:
SEC. 5. No person shall be excused from attending and testifying or from
producing books, records, correspondence, documents, or other evidence in
obedience to a subpoena issued by the Board on the grounds that his
testimony or the evidence required of him may tend to incriminate him or
subject him to penalty or forfeiture; but his testimony or any evidence
produced by him shall not be used against him in connection with any
transaction, matter, or thing concerning which he is compelled, after having
invoked his privilege against self-incrimination, to testify or produce
evidence, except that such an individual so testifying shall not be exempt
from prosecution and punishment for perjury committed in so testifying, nor
shall he be exempt from demotion or removal from office. (Emphasis
supplied)
As I read the law, Section 5 does not require that the person testifying before
the Agrava Fact Finding Board (the Board, for short) shall first invoke the
privilege against self-incrimination. Under said statute it is obvious that he
has no such privilege.
183
But what is the effect of the second part providing that his testimony or any
evidence produced by him shall not be used against him in connection with
any transaction, matter or thing concerning which he is compelled, after
having invoked his privilege against self-incrimination, to testify or produce
evidence, except in case of perjury?
To my mind, the above portion does not grant to a person who has testified
before the Board absolute or total immunity. It should not operate as a shield
against criminal liability specially since, under Section 12 of the same
Decree, the Board may initiate the filing of the proper complaint if its finding
so warrant. Thus,
SEC. 12.The findings of the Board shall be made public. Should the findings
warrant the prosecution of any person the Board may initiate the filing of the
proper complaint with the appropriate government agency. ... (Emphasis
supplied)
The inquiry before the Board was a general one. It was not directed against
any particular individual or individuals. Private respondents did not testify
therein as suspects or as accused persons. There should therefore be no
hindrance to a criminal prosecution.
It has been held that where an inquiry by a grand jury is a general one and is
not directed against a particular individual the fact that on the basis of the
information elicited, grounds for a criminal prosecution may evolve against
a witness, may not serve as a bar to such prosecution (U.S. v. Okin D.C.N.J.,
154 F. Supp. 553; Benson v. Goldstein, 124 N.Y.S. 2d 452) even though he
testified before the grand jury without being warned of his constitutional
privileges against self- incrimination. (U.S. v. Okin supra) (Emphasis
supplied)
The right against self incrimination is not a prohibition of inquiry but an
option of refusal to answer incriminating questions Cabal vs. Kapunan, 6
SCRA 1059 [1962]). The kernel of the privilege is testimonial compulsion.
Whether or not any specific portion of the testimonies of private respondents
is incriminating should be determined by the Sandiganbayan itself. The claim
against self-incrimination should be invoked when a specific question, which
is incriminating in character, is put to a witness in the subsequent proceeding.
There should be no automatic "immunity bath" of the entire testimony before
the Board for immunity does not extend to such of the evidence as is not
privileged.
... But it is established that the privilege against self-incrimination must be
invoked at the proper time, and the proper time to invoke it is when a question
calling for an incriminating answer is propounded. This has to be so, because
before a question is asked there would be no way of telling whether the
information to be elicited from the witness is self-incriminating or not. As
stated in Jones on Evidence (Vol. 6, pp. 4926-4927), a person who has been
summoned to testify 'cannot decline to appear, nor can be decline to be sworn
as a witness' and 'no claim or privilege can be made until a question calling
for a incriminating answer is asked; at that time, and generally speaking, at
that time only, the claim of privilege may be interposed. (Gonzales vs. Sec.
of Labor, et al., 94 Phil. 325, 326 [19541).
Moreover, the issue actually addresses itself to a question of admissibility or
competency of evidence and not to its credibility. Whether the evidence so
admitted is to be given any probative weight or credence is best addressed to
the Sandiganbayan. It should be recalled that the Board was not unanimous
in its assessment of the testimonies given.
There are additional considerations. While the right against self-incrimination
is indubitably one of the most fundamental of human rights, Section 5 of PD
No. 1886 should be construed so as to effect a practical and beneficent
purpose and not in such a manner as to hinder or obstruct the administration
of criminal justice.
... Any statute which, while it compels him to testify, protects the witness if
he does disclose the circumstances of his offense and the sources from which
or the means by which evidence of its commission or of his connection with
it may be obtained or made effectual for his subsequent prosecution and
conviction is sufficient to comply with the constitutional requirements. Such
a statute, however should be construed to effect a practical and beneficent
purpose, namely, at the same time to secure the witness in his constitutional
rights and to permit the prosecuting officer to secure evidence of a crime. It
should not be construed so as to unduly impede, hinder, or obstruct the
administration of criminal justice." Brown v. Walker 161 US 591, 16 Sup.
Ct. 644, 40 L. Ed. 819. (People ex rel. Hunt vs. Lane, 116 N.Y.S. 990, 132
App. Div. 406)
184
The objective in all this exercise is to arrive at the truth. "Though the
constitutional provisions for the protection of one who appears ... must be
liberally and fairly applied, the interests of the people are also entitled to
consideration" (Wharton's Criminal Evidence, 11th Ed., Vol. 1, p. 609;
People vs. Coyle 15 N.Y.S. 2d 441, 172 Mis 593). Specially so since, in the
language of PD No. 1886 itself, the "treacherous and vicious assassination of
former Senator Benigno S. Aquino, Jr. on August 21, 1983, has to all
Filipinos become a national tragedy and national shame. "
In the interest of eliciting the truth, the excluded testimonies should be
admitted, leaving it to the Sandiganbayan to determine which specific
questions and answers are to be excluded because they are incriminatory, and
which should be given credibility, in found to be competent and admissible.
RELOVA, J., dissenting:
The issue raised in these two petitions is whether the testimonies and other
evidence produced by the private respondents before the Agrava Board may
be used as evidence against them before the Sandiganbayan
Respondent Sandiganbayan rejected their testimonies on the ground that
"under statutes providing in substance that no person shall be excused from
testifying or furnishing evidence on the ground that the testimony or evidence
may tend to incriminate him, but that no person shall be subject to indictment
or prosecution for anything concerning which he may testify or furnish
evidence, it has been held that one who testifies concerning criminal offenses
when required to do so is entitled to immunity from prosecution even though
he fails to claim his privilege before giving the incriminating testimony (21
Am Jur 2d 218). He could not be required, in order to gain the immunity
which the law afforded, to go though the formality of an objection or protest
which, however made, would be useless (VIII Wigmore 516)." (p. 4,
Resolution of Sandiganbayan)
Section 5 of Presidential Decree No. 1886 provides that:
SEC. 5. No person shall be excused from attending and testifying or from
producing books, records, correspondence, documents, or other evidence in
obedience to a subpoena issued by the Board on the ground that his testimony
or the evidence required of him may tend to incriminate him or subject him
to penalty or forfeiture; but his testimony or any evidence produced by him
shall not be used against him in connection with any transaction, matter or
thing concerning which he is compelled, after having invoked his privilege
against self- incrimination to testify or produce evidence ... (Emphasis
supplied.)
Pursuant to the above Presidential Decree no one can refuse to testify or
furnish evidence before the Fact Finding Board. However, his testimony or
any evidence produced shall not be used against him after he invoked the
privilege against self-incrimination. Stated differently, the privilege against
self-incrimination must be invoked when the question at the hearing before
the Board, calling for an incriminating answer is propounded; otherwise,
before any question is asked of the witness, he would not know whether the
information to be elicited from him is incriminating or not.
In the case of Gonzales vs. Secretary of Labor, et al., 94 Phil. 325, this Court
held that "the privilege against self-incrimination must be invoked at the
proper time, and the proper time to invoke it is when question calling for a
incriminating answer is propounded. This has to be so, because before a
question is asked there would be no way of telling whether the information
to be elicited from the witness is self-incriminating or not. As stated in Jones
on Evidence (Vol. 6, pp. 4926-4927), a person who has been summoned to
testify 'cannot decline to appear, nor can he decline to be sworn as a witness'
and 'no claim of privilege can be made until a question calling for a
incriminating answer is asked; at that time, and generally speaking, at that
time only, the claim of privilege may properly be interposed.'" And, since it
is a personal right to be exercised only by the witness, this privilege against
self-incrimination may be waived by him and, when so waived, cannot
thereafter be asserted. The privilege is waived by his voluntary offer to testify
by, answering questions without objecting and/or claiming the privilege.
When private respondents gave testimonies before the Board they were not
defendants but witnesses invited and/or subpoenaed "to ventilate the truth
thorougly free, independent and dispassionate investigation." They could not
refuse or withhold answers to questions propounded to them unless the
inquiry calls for an incriminating answer and a timely objection is raised.
In the case at bar, since the private respondents answered questions from the
Fact Finding Board without claiming the privilege against self-incrimination
185
they cannot now be allowed to invoke the immunity clause provided in
Section 5 of Presidential Decree No. 1886.

I vote to grant the petitions.

186
G.R. No. 100295 April 26, 1994
PLACIDO L. MAPA, JR., and J. LORENZO VERGARA, petitioners,
vs.
SANDIGANBAYAN, respondent.
Estelito P. Mendoza for Placido L. Mapa, Jr.
Filemon Flores for J. Lorenzo Vergara.
PUNO, J.:
The denial of the right to be free from further prosecution of a cooperative
witness who has been granted immunity is the core issue posed in this
petition. On balance are important rights in conflict: the right of an individual
who has surrendered his constitutional prerogative to be silent to the State to
be exempt from further prosecution; the right of the State to prosecute all
persons who appear to have committed a crime and its prerogative to revoke
the immunity it has granted to an accused for breach of agreement; and the
extent of the jurisdiction of the Sandiganbayan as an impartial tribunal to
review the grant of immunity extended by the PCGG to an accused.
First, the facts.
On January 20, 1987, petitioners Placido L. Mapa and Lorenzo Vergara,
together with Gregorio Ma. Araneta III, Fernando Balatbat, Ramon Aviado,
Jr., Dominador Lopez, Jr., Fernando Maramag, Jr., and Jose Crisanto, Jr.,
were charged with violation of the Anti-Graft and Corrupt Practices Act (R.A.
3019) as amended, docketed as Case No. 11960 in the respondent court, as
follows:
That on or about and during the period from March 1985 and March 1986, in
Metro Manila, Philippines, and within the jurisdiction of the Honorable
Sandiganbayan, accused Placido L. Mapa, Jr., J. Lorenzo Vergara, Ramon F.
Aviado, Jr., Dominador Lopez, Jr., Fernando Maramag, Jr., Jose C. Crisanto,
Jr., acting in various capacities as management officials of the Philippine
National Bank (PNB), National Investment and Development Corporation
(NIDC) and/or Pantranco North Express Inc. (PNEI), all government-owned
and controlled corporations, as well as Dolores Potenciano of BLTB, acting
in concert in the performance of their duties, in utter neglect of their fiduciary
responsibilities, and with intent to gain, conspiring and confederating with
one another and with accused Gregorio Ma. Araneta III, son-in-law of former
President Ferdinand E. Marcos and therefore related to the deposed President
by affinity within the third degree, and Fernando Balatbat, did then and there,
willfully and unlawfully, with manifest partiality and evident bad faith,
without proper board resolution and in disregard of better offers, promote and
facilitate the sale of a major portion of the public utility assets of the
Pantranco Express, Inc., for a consideration of SEVEN HUNDRED
SEVENTY-FIVE MILLION (P775,000,000.00) PESOS, Philippine
Currency, to the North Express Transport, Inc. (NETI), which the accused
knew to be a newly organized paper corporation with a purported paid-up
capital of only FIVE MILLION (P5,000,000.00) PESOS and owned and
controlled by accused Gregorio Ma. Araneta III, by misleading, inducing
and/or unduly influencing the Board of Directors of PNB, NIDC and PNEI
into approving a Memorandum of Agreement and later a Purchase Agreement
with manifestly and grossly disadvantageous terms and conditions which
made possible the premature delivery of said PNEI assets to NETI without
any down payment, and which, inter alia, allowed NETI to operate PNEI's
franchises and utilize, even before the execution of the said Purchase
Agreement, not only the PNEI assets subject of the proposed sale, but also
other utility buses and properties of PNEI not covered by the sale, thereby
allowing NETI to derive an income from said operation between the period
of actual delivery and execution of the Purchase Agreement of the sum of
EIGHTY-FIVE MILLION SIX HUNDRED EIGHTY-NINE THOUSAND,
ONE HUNDRED EIGHTY (P85,689,180.00) PESOS before the actual
payment of the agreed FIFTY-FIVE MILLION (P55,000,000.00) PESOS
down payment, thereby giving accused Gregorio Ma. Araneta III
unwarranted benefits, advantages and/or preferences and causing undue
injury to the damage and prejudice of the Government in the amount of
FOUR HUNDRED MILLION (P400,000,000.00) PESOS, and such other
amounts as may be awarded by the Court.
CONTRARY TO LAW.
Except for petitioner Araneta, all the accused in Criminal Case
No. 11960 were arraigned. Their trial started on September 20, 1988.
In the interim, the late President Ferdinand E. Marcos and Mrs. Imelda R.
Marcos were charged in New York with violations of the Racketeer
187
Influenced and Corrupt Organization Act (RICO) by transporting to the
United States and concealing the investment of money through cronies and
offshore organizations. To insure the conviction of the Marcoses, the
prosecution solicited the testimonies of witnesses. Among these witnesses
were petitioners Vergara and Mapa. Petitioner Vergara was interviewed in
1987 by PCGG lawyers Kendall and Severina Rivera and by United States
Prosecutor Charles La Bella. Petitioner Mapa was interviewed on November
14, 1988 and August 11, 1989 also by Prosecutor La Bella at the behest of
former Secretary of Justice Sedfrey Ordonez and former PCGG Chairman
Mateo Caparas. After their interviews, petitioners were requested to testify in
the said RICO cases against the former First Couple. They were promised
immunity from further criminal prosecution. They agreed.
On May 16, 1990, the Philippine Government through the PCGG, and the
petitioners formalized their separate agreements in writing. The agreement
with petitioner Mapa provided:
WHEREAS, REPUBLIC has requested MAPA to make himself available as
a witness in the case entitled "United States of America vs. Ferdinand E.
Marcos, et al.," more particularly in the on-going trial of the case;
WHEREAS, MAPA is a defendant or respondent in several civil and criminal
cases which the REPUBLIC has filed or intends to file in relation to this
participation in various contracts that are alleged to have resulted in the
accumulation of ill-gotten wealth by Ferdinand and Imelda Marcos in
violation of Philippine laws, rules and regulations;
WHEREAS, on the basis of MAPA's express intent to make himself available
as witness in the case entitled "United States of America vs. Ferdinand E.
Marcos, et al.," and in light of REPUBLIC's re-appraisal of the civil and
criminal cases which it has filed or intends to file against MAPA under the
terms and conditions herein below set forth.
NOW, THEREFORE, for and in consideration of the foregoing premises, the
parties agree as follows:
1. MAPA shall make himself available as a witness in the case entitled
"United States of America vs. Ferdinand E. Marcos, et al."
2. In consideration of the same, REPUBLIC grants MAPA immunity
from investigation, prosecution and punishment for any offense with
reference to which his testimony and information are given, including any
offense and commission of which any information, directly or indirectly
derived from such testimony or other information is used as basis thereof,
except a prosecution for perjury and/or giving false testimony.
3. Likewise, in consideration of such cooperation, and in light of
REPUBLIC’s review of the cases both civil and criminal which it has filed
or intends to file against MAPA within the purview of Executive Orders Nos.
1, 2, 14 and 14-A, the REPUBLIC shall cause the dismissal or exclusion of
MAPA as party defendant or respondent in all PCGG initiated civil cases and
criminal proceeding or investigation.
4. The immunity has been granted by the REPUBLIC to MAPA on the
basis of and relying on MAPA's promise of cooperation as described herein.
In case of breach of his commitment to fully cooperate and make himself
available as a witness in the case entitled "United States of America vs.
Ferdinand E. Marcos, et al.", the immunity herein granted shall forthwith be
deemed revoked, and of no force and effect.
5. The parties agree that the grant of immunity from criminal
prosecution to MAPA and his exclusion from PCGG initiated civil cases and
criminal proceeding or investigations has been undertaken in the exercise of
the PCGG's authority under Executive Order Nos. 1, 2, 14 and 14-A.
Accordingly, nothing herein shall be construed as an admission by MAPA of
any criminal or civil liability.
The agreement with petitioner Vergara stated:
WHEREAS, REPUBLIC has requested VERGARA to make himself
available as a witness in the case entitled "United States of America vs.
Ferdinand E. Marcos, et al.," more particularly in the on-going trial of the
case;
WHEREAS, Vergara is a defendant in Criminal Case No. 11960 entitled
"People vs. Gregorio Ma. Araneta, et al.", now pending before the
Sandiganbayan, Second Division;
188
WHEREAS, on the basis of VERGARA’s express intent to make himself
available as witness in the case entitled "United States of America vs.
Ferdinand E. Marcos, et al.," and in the light of REPUBLIC's re-appraisal of
VERGARA's participation in Criminal Case No. 11960, the REPUBLIC
approved to grant immunity to VERGARA under the terms and conditions
hereinbelow set forth.
NOW, THEREFORE, for and in consideration of the foregoing premises, the
parties agree as follows:
1. VERGARA shall make himself available as a witness in the case
entitled "United States of America vs. Ferdinand E. Marcos, et al."
2. In consideration of the same, REPUBLIC grants VERGARA
immunity from investigation, prosecution and punishment for any offense
with reference to which his testimony and information are given, including
any offense and commission of which any information, directly or indirectly
derived from such testimony or other information is used as basis thereof,
except a prosecution for perjury and/or giving false testimony.
3. Likewise, in consideration of such cooperation, and in light of
REPUBLIC’s review of VERGARA’s participation in Criminal Case No.
11960, the REPUBLIC shall cause the dismissal of VERGARA from
Criminal Case No. 11960.
4. The immunity has been granted by the REPUBLIC to VERGARA
on the basis of and relying on VERGARA's promise of cooperation as
described herein. In case of breach of h is commitment to fully cooperate and
make himself available as a witness in the case entitled "United States of
America vs. Ferdinand E. Marcos, et al.", the immunity herein granted shall
forthwith be deemed revoked, and of no force and effect.
5. The parties agree that the grant of immunity from civil and criminal
prosecution to VERGARA and his exclusion from Criminal Case No. 11960
has been undertaken in the exercise of the PCGG's authority under Executive
Orders Nos. 1, 2, 14 and 14-A. Accordingly, nothing herein shall be construed
as a admission by VERGARA of any criminal liability.
On the same day, May 16, 1990, former PCGG Chairman Mateo Caparas
wrote to petitioner Mapa the following letter:
Dear Sir:
With reference to the agreement executed between yourself and the Republic
of the Philippines on May 16, 1990, we would like to confirm
that among the criminal cases which the Republic agrees to cause the
dismissal of the case entitled "People of the Philippines vs. Mr. Gregorio Ma.
Araneta III, et. al., " Criminal Case No. 11960 of the Sandiganbayan. We
understand that in that case the prosecution is in the process of closing its
evidence with the submission of its offer of documentary evidence and that it
is your intention thereupon to submit a Motion to Dismiss for failure of the
prosecution to prove its case. We affirm that if, because of the situation of the
case, it would not be possible for the Republic to file the necessary motion to
cause the dismissal thereof, then we shall upon submission of your Motion to
Dismiss offer no objection to its favorable consideration by the court in
relation to you.
We also affirm our understanding that we shall arrange with the U.S.
prosecutors the grant of immunity in your favor no less broad or extensive
than that granted to Mr. Jaime C. Laya.
Very truly yours,
(SGD.) M.A.T. Caparas
A similar letter was sent to petitioner Vergara.
The petitioners complied with their respective undertaking. They travelled to
New York to testify against the Marcoses. Their travel fare and hotel
accommodations were even furnished by the PCGG. But despite their
availability and willingness to testify, the US prosecutors decided not to call
them to the witness stand. The result was a debacle for the US prosecutors
and the PCGG. Mrs.Imelda Marcos was acquitted by the jury. Earlier, former
President Marcos was delisted as an accused as he died in the course of the
proceedings.
The legal struggle shifted back to the prosecution of petitioners in Criminal
Case No. 11960 before the respondent court. On the basis of the immunity
granted to them, petitioners filed a Joint Motion to Dismiss on October 22,
189
1990. Deputized PCGG prosecutors Vivencio B. Dionido and Angel J. Parazo
filed a Manifestation interposing no objection to petitioners' Motion, viz:
That herein accused Placido L. Mapa, Jr. and J. Lorenzo Vergara were
granted immunity by the Presidential Commission on Good Government
from criminal liability arising from cases which PCGG had or intends to file
against them;
The PCGG, therefore, interposes no objection to the Joint Motion to Dismiss
filed by accused Placido L. Mapa, Jr. and J. Lorenzo Vergara in Criminal
Case No. 11960-PCGG by reason of the immunity aforestated.
Despite PCGG's concurrence, the respondent court denied the Joint Motion
to Dismiss, by a vote of 4-1. 1 Petitioners were undaunted. On April 8, 1991,
they filed a Motion for Reconsideration. This was followed on May 23, 1991,
by a Supplement to the Motion for Reconsideration. The deputized
prosecutors again filed a Manifestation reiterating PCGG's acquiescence to
petitioners' Motion for Reconsideration. Respondent court, however, refused
to budge from its prior position. It denied petitioners' motions.
Hence, this recourse where petitioners charge the respondent court with grave
abuse of discretion in denying their Motion to Dismiss and Motion for
Reconsideration. They pose the following issues:
2.00.a. Does the fact that the information provided by petitioners to the
Presidential Commission on Good Government (PCGG) did not refer to
Criminal Case No. 11960 make the immunity granted to them inapplicable to
Criminal Case No. 11960?
2.00.b. Is it necessary that information furnished the PCGG, which would
become basis of the grant of immunity, be submitted to the Sandiganbayan in
order that it may determine whether such information is necessary to ascertain
or prove the guilt or liability of a respondent, defendant or an accused in an
action involving the recovery of ill-gotten wealth?
2.00.c. Does the fact that the prosecution in the RICO cases did not actually
present petitioners as witnesses abrogate the immunity granted to them?
2.00.d. Was the immunity granted to petitioners too late considering that
when it was granted, the prosecution in Criminal Case
No. 11960 had already rested its case?"
The proceedings before us took a new wrinkle with the appointment of Atty.
David Castro as Chairman of PCGG. In its Comment dated January 6, 1992,
the PCGG somersaulted from its stance supporting the petitioners. Its
Comment states:
1. The Presidential Commission on Good Government has indeed
granted Messrs. Placido L. Mapa, Jr., and Jesus Lorenzo Vergara immunity
from investigation, prosecution and punishment for any offense for which
civil and criminal cases have been or to be filed against them within the
purview of Executive Orders Nos. 1, 2, 14 and 14-A but such immunity is
conditional.
2. The conditions for giving such immunity is the cooperation said
petitioners shall give to said Commission by way of information and
testimony in cases now pending or to be filed before the Sandiganbayan
against other defendants therein to prove the latter's acquisition or
accumulation of property or properties in violation of existing laws.
3. Failure on the part of petitioners Placido Mapa, Jr. and Jesus Vergara
to testify in favor of the government and against other defendants on matters
referred to in the immediately preceding paragraph nullifies the immunity
granted to both defendants (emphasis supplied).
It reiterated its breakaway from petitioners in its Comment to the Reply of
petitioners dated June 10, 1992, where it adopted the respondent
Sandiganbayan's questioned Resolution and Concurring Opinions dated
March 6, 1991. It further stressed that "[T]he granting of 'Immunity' from
criminal liability and/or prosecution is a matter subject to the court's judicious
determination and approval, after applying the test of compliance and the
standard of reasonableness with the rigid requirements for such grant under
Section 5 of Executive Order No. 14-A, as amended." The Solicitor General
defended the stance of the PCGG and the respondent court.
We find merit in the petition.
The practice of granting government, its officials, and some accused or
respondents immunity from suits, has a long history.
190
We begin with the Constitution which expressly grants some of these
immunities. Article XVI, section 3 provides that "the State may not be sued
without its consent." The classic justification for the non-suability of the State
is that provided by Mr. Justice Oliver Wendell Holmes: ". . . there can be no
legal right against the authority which makes the law on which the right
depends." 2 Article VI, section 11 of the Constitution also grants
parliamentary immunities, viz: "A Senator or Member of the House of
Representatives shall, in all offenses punishable by not more than six years
imprisonment, be privileged from arrest while the Congress is in session. No
member shall be questioned nor be held liable in any other place for any
speech or debate in the Congress or in
any committee thereof." Mr. Justice Isagani A. Cruz explains the rationale for
this immunity in the following manners: ". . . The first is intended to ensure
representation of the constituents of the member of the Congress by
preventing attempts to keep him from attending its sessions. The second
enables the legislator to express views bearing upon the public interest
without fear of accountability outside the halls of the legislature for his
inability to support his statements with the usual evidence required in the
court of justice. In other words, he is given more leeway than the ordinary
citizen in the ventilation of matters that ought to be divulged for the public
good."3 The President was also immunized from suit during his tenure in the
1973 Constitution.
Aside from the Constitution, Congress has enacted laws giving immunity to
witnesses to facilitate the solution of crimes with high political, social and
economic impact against the people. Some of these statutory grants are
related in the impugned Resolution. Thus, PD 749 provides:
Section 1. Any person who voluntarily gives information about any
violation of Articles 210, 211, 212 of the Revised Penal Code, Republic Act
No. 3019, as amended; Section 345 of the Internal Revenue Code and Section
3604 of the Tariff and Customs Code and other provisions of the said codes
penalizing abuse or dishonesty on the part of the public officials concerned;
and other laws, rules and regulations punishing acts of graft, corruption and
other forms of official abuse; and who willingly testified, such violator shall
be exempt from prosecution or punishment for the offense with reference to
which his information and testimony were given, and may plead or prove the
giving of such information and testimony in bar of such prosecution:
Provided, That this immunity may be enjoyed even in cases where the
information and the testimony are given against a person who is not a public
official but who is a principal or accomplice, or accessory in the commission
of any of the above-mentioned violations: Provided, further, That this
immunity may be enjoyed by such informant or witness notwithstanding that
he offered or gave bribe or gift to the public official or is an accomplice for
such gift or bribe-giving; And, Provided, finally, That the following
conditions concur:
1. The information must refer to consummated violations of any of the
above- mentioned provisions of law, rules and regulations;
2. The information and testimony are necessary for the conviction of
the accused public officer;
3. Such information and testimony are not yet in the possession of the
State;
4. Such information and testimony can be corroborated on its material
points; and
5. The informant or witness has not been previously convicted of a
crime involving moral turpitude.
Likewise, under PD No. 1886, the Agrava Fact Finding Board, created to
conduct a fact-finding inquiry in the Aquino-Galman double murder case,
was given the power to compel testimony of a witness. In exchange for his
testimony, such a witness was extended transactional immunity from later
prosecution. Section 5 of said PD No. 1886 states:
No person shall be excused from attending and testifying or from producing
books, records, correspondence, documents, or other evidence in obedience
to a subpoena issued by the Board on the ground that his testimony or the
evidence required of him may tend to incriminate him or subject him to
penalty or forfeiture; but his testimony or any evidence produced by him shall
not be used against him in connection with any transaction, matter or thing
concerning which he is compelled, after having invoked his privilege against
self-incrimination to testify or produce evidence, except that such individual
so testifying shall not be exempt from prosecution and punishment for perjury
committed in so testifying, nor shall he be exempt from prosecution and
punishment for perjury committed in so testifying, nor shall he be exempt
from demotion or removal from office.
191
Indeed, as early as April 16, 1951, R.A. 602, establishing a minimum wage
law, extended transactional immunity to persons who testify or produce
books, papers or other records and documents before the Secretary of Labor
or a Wage Board. A similar but not identical power is given to the prosecution
under section 9, Rule 119 of the 1985 Rules on Criminal Procedure to
discharge an accused to be utilized as a state witness.
Our immunity statutes are of American origin. In the United States, there are
two types of statutory immunity granted to a witness. They are the
transactional immunity and the used-and-derivative-use immunity.
Transactional immunity is broader in the scope of its protection. By its grant,
a witness can no longer be prosecuted for any offense whatsoever arising out
of the act or transaction. 4 In contrast, by the grant of use-and-derivative-use
immunity,
a witness is only assured that his or her particular testimony and
evidence derived from it will not be used against him or her in a subsequent
prosecution. 5 In Kastigar vs. US, 6 the rationale of these immunity grants is
well explained, viz:
The power of government to compel persons to testify in court or before
grand juries and other governmental agencies is firmly established in Anglo-
American jurisprudence . . . The power to compel testimony, and the
corresponding duty to testify, are recognized in the Sixth Amendment
requirements that an accused be confronted with the witnesses against him,
and have compulsory process for obtaining witnesses in his favor. . .
xxx xxx xxx
But the power to compel testimony is not absolute. There are a number of
exemptions from the testimonial duty, the most important
of which is the Fifth Amendment privilege against compulsory
self-incrimination. The privilege reflects a complex of our fundamental
values and aspirations, and marks an important advance in the development
of our liberty. It can be asserted in any proceeding, civil or criminal,
administrative or judicial, investigatory or adjudicatory; and it protects
against any disclosures that the witness reasonably believes could be used in
a criminal prosecution or could lead to other evidence that might be so used.
This Court has been zealous to safeguard the values that underlie the
privilege.
Immunity statutes, which have historical roots deep in Anglo-American
jurisprudence, are not incompatible with these values. Rather, they seek a
rational accommodation between the imperatives of the privilege and the
legitimate demands of government to compel citizens to testify. The existence
of these statutes reflects the importance of testimony, and the fact that many
offenses are of such a character that the only persons capable of giving useful
testimony are those implicated in the crime. Indeed, their origins were in the
context of such offenses, and their primary use has been to investigate such
offenses . . . (E)very State in the Union, as well as the District of Columbia
and Puerto Rico, has one of more such statutes. The commentators, and this
Court on several occasions, have characterized immunity statutes as essential
to the effective enforcement of various criminal statutes. . .
We shall now examine the powers granted to PCGG by Executive Order No.
14, as amended, to grant immunity from criminal prosecution. The pertinent
sections provide:
xxx xxx xxx
Sec. 2. Section 4 of Executive Order No. 14 dated May 7, 1986 is hereby
amended to read as follows:
Sec. 4. A witness may refuse on the basis of his privilege against self-
incrimination, to testify or provide other information in a proceeding before
the Sandiganbayan if the witness believes that such testimony or provision of
information would tend to incriminate him or subject him to prosecution.
Upon such refusal, the Sandiganbayan may order the witness to testify or
provide information.
The witness may not refuse to comply with the order on the basis of his
privilege against self-incrimination; but no testimony or other information
compelled under the order (or any information directly or indirectly derived
from such testimony, or other information) may be used against the witness
in any criminal case, except a prosecution for perjury, giving a false
statement, or otherwise failing to comply with the other.'
Sec. 3. Section 5 of Executive Order No. 14 dated May 7, 1986 is hereby
amended to read as follows:
192
Sec. 5. The Presidential Commission on Good Government is authorized to
grant immunity from criminal prosecution to any person who provides
information or testifies in any investigation conducted by such Commission
to establish the unlawful manner in which any respondent, defendant or
accused has acquired or accumulated the property or properties in question in
any case where such information or testimony is necessary to ascertain or
prove the latter's guilt or his civil liability. The immunity thereby granted
shall be continued to protect the witness who repeats such testimony before
the Sandiganbayan when required to do so by the latter or by the Commission.
There are obvious differences between the powers granted to the PCGG under
sections 4 and 5. Section 4 deals with the power which PCGG can use to
compel an unwilling witness to testify. On the other hand, section 5 speaks
of the power which PCGG can wield to secure information from a friendly
witness. Under section 4, the hostile witness compelled to testify is not
immunized from prosecution. He can still be prosecuted but "no testimony or
other information compelled under the order (or any information directly or
indirectly derived from such testimony or other information) may be used
against the witness in any criminal case . . . ." In contrast, under section 5, the
friendly witness is completely immunized from prosecution.
The case at bench involves an exercise of power by PCGG under
section 5, supra. Petitioners are not hostile but friendly witnesses. It is not
disputed that they furnished information to the PCGG during their interviews
conducted by PCGG lawyers and US prosecutor La Bella. Due to their
cooperation, they were extended immunity from prosecution by the PCGG.
In return, they flew to New York to testify in the RICO trial of Imelda
Marcos. As they were witnesses for the prosecution, their expenses were
shouldered by the PCGG itself. At the last minute, however, US prosecutor
La Bella decided to dispense with their testimony. The rest is history. The
prosecution failed to convict Mrs. Marcos.
The first issue is whether the respondent court has jurisdiction to review the
immunity granted by PCGG in favor of the petitioners. We sustain the
jurisdiction of the respondent court. To be sure, we have grappled with this
once slippery issue in the case of Republic vs. Sandiganbayan, 173 SCRA 76,
80-81, and we held:
We first ascertain whether or not the Sandiganbayan has jurisdiction to look
into the validity of the immunity granted by the PCGG to Jose Y. Campos
which was extended to his son, petitioner-intervenor herein,
Jose Campos, Jr.
xxx xxx xxx
The powers of the PCGG are not unlimited. Its jurisdiction over cases
involving ill-gotten wealth must be within the parameters stated in Executive
Order No. 14. Necessarily, the jurisdiction of the Sandiganbayan which is
tasked to handle the ill-gotten wealth cases must include the jurisdiction to
determine whether or not the PCGG exceeded its power to grant immunity
pursuant to the provisions of Executive Order No.14.
It should also be noted that the respondent court has already acquired
jurisdiction to try and decide Case No. 11960 where petitioners stand accused
of violating RA 3019. It has started receiving the evidence of the prosecution
against the petitioners. Petitioners, with the conformity of PCGG, then
claimed their immunity via a motion to dismiss addressed to the respondent
court. The motion to dismiss is thus a mere incident well within the
jurisdiction of the respondent court to resolve.
The next issue is a finer and more difficult one, i.e., gauging the range of the
power of the respondent court to review the exercise of discretion of the
PCGG granting immunity to petitioners pursuant to section 5 of E.O. No. 14,
as amended.
Respondent court, thru the Solicitor General, pushes the proposition that said
power of review is plenary in reach. It is urged that its plenitude and panoply
empower the respondent court to reverse the grant of immunity made by the
PCGG by supplanting the latter's judgment. The submission will warrant the
respondent court in examining the intrinsic quality of the given information
or testimony, i.e., whether it truly establishes the "unlawful manner" in which
the respondent, defendant or accused has acquired or accumulated the
property or properties in question. Likewise, it will give a warrant to the
respondent court to change the judgment made by the PCGG that the witness'
information or testimony is "necessary" to ascertain or prove the guilt or civil
liability of the respondent, defendant or accused.
193
We are not prepared to concede the correctness of this proposition. Neither
the text nor the texture of E.O. No. 14, as amended, lends color to the
suggested interpretation. Section 5 of E.O. No. 14, as amended, vests no such
role in respondent court. In instances, where the intent is to endow courts of
justice with the power to review and reverse tactical moves of the
prosecution, the law confers the power in clear and certain language. Thus,
under section 9 of Rule 119, the prosecution in the exercise of its discretion
may tactically decide to discharge an accused to be a state witness but its
decision is made subject to the approval of the court trying the case. It has to
file a proper motion and the motion may be denied by the court if the
prosecution fails to prove that it has satisfied the requirements of the rule on
discharge of a witness. The rule is crafted as to leave no iota of doubt on the
power of the court to interfere with the discretion of the prosecution on the
matter. In the case at bench, E.O. 14, as amended, is eloquently silent with
regard to the range and depth of the power of the respondent court to review
the exercise of discretion by the PCGG granting a section 5 immunity. This
silence argues against the thesis that the respondent court has full and
unlimited power to reverse PCGG's exercise of discretion granting a section
5 immunity. Legitimate power can not arise from a vacuum.
We observe that in contrast to our other laws on immunity, section 5 of E.O.
No. 14, as amended, confers on the PCGG the power to grant immunity alone
and on its own authority. The exercise of the power is not shared with any
other authority. Nor is its exercise subject to the approval or disapproval of
another agency of government. The basic reason for vesting the power
exclusively on the PCGG lies in the principles of separation of power. The
decision to grant immunity from prosecution forms a constituent part of the
prosecution process. It is essentially a tactical decision to forego prosecution
of a person for government to achieve a higher objective. It is a deliberate
renunciation of the right of the State to prosecute all who appear to be guilty
of having committed a crime. Its justification lies in the particular need of the
State to obtain the conviction of the more guilty criminals who, otherwise,
will probably elude the long arm of the law. Whether or not the delicate power
should be exercised, who should be extended the privilege, the timing of its
grant, are questions addressed solely to the sound judgment of the
prosecution. The power to prosecute includes the right to determine who shall
be prosecuted and the corollary right to decide whom not to prosecute. In
reviewing the exercise of prosecutorial discretion in these areas, the
jurisdiction of the respondent court is limited. For the business of a court of
justice is to be an impartial tribunal, and not to get involved with the success
or failure of the prosecution to prosecute. Every now and then, the
prosecution may err in the selection of its strategies, but such errors are not
for neutral courts to rectify, any more than courts should correct the blunders
of the defense. For fairness demands that courts keep the scales of justice at
equipoise between and among all litigants. Due process demands that courts
should strive to maintain the legal playing field perfectly even and perpetually
level.
Prescinding from these baseline propositions, we hold that in reviewing the
grant of a section 5 immunity made by the PCGG to the petitioners, the power
of the respondents court can go no further than to pass upon its procedural
regularity. The respondent court should only ascertain: (a) whether the person
claiming immunity has provided information or testimony in any
investigation conducted by the PCGG in the discharge of its functions;
(b) whether in the bona fide judgment of the PCGG, the information or
testimony given would establish the unlawful manner in which the
respondent, defendant or accused has acquired or accumulated the property
or properties in question; and (c) whether in the bona fide judgment of the
PCGG, such information or testimony is necessary to ascertain or prove the
guilt or civil liability of the respondent, defendant or accused. Respondent
court cannot substitute its judgment to the discretion of the PCGG without
involving itself in prosecution and without ceasing to be a court catering
untilted justice.
Applying this standard, we hold that the respondent court committed grave
abuse of discretion when it denied petitioners' motion to dismiss based on a
claim of immunity granted by the PCGG under section 5 of E.O. 14, as
amended.
The records show that petitioners provided information to the PCGG relating
to the prosecution of the RICO cases against the Marcoses in New York. They
gave the information in the course of interviews conducted by PCGG lawyers
Kendall and Severina Rivera and US prosecutor Charles
La Bella. They collaborated with the prosecution.
Sec. 5 requires that the information should relate to "any case" which PCGG
can prosecute as mandated by the Constitution and E.O. Nos. 1, 2, 14 and 14-
A. It does not limit said information to be given only in a case where the
informant is himself an accused or a respondent. Such a reading adopted by
194
the respondent court is unduly restrictive of the intendment of section 5 of
E.O.
No. 14, as amended, even as it is clearly in contravention of its plain language.
It is also fairly established that the pieces of information given by the
petitioners would in the judgment of the PCGG, establish the "unlawful
manner" with which the Marcoses acquired or accumulated their properties
and were "necessary" to prove their guilt. The totality of the circumstances of
the case established this element. Thus, after their interview, the PCGG was
obviously convinced of the evidentiary value of the information given by the
petitioners. It forthwith signed and sealed an agreement with petitioners
extending them immunity from prosecution. In the case of petitioner Mapa,
"the Republic shall cause the dismissal or exclusion of MAPA as party
defendant or respondent in all PCGG initiated civil cases and criminal
proceeding or investigation." In the case of petitioner Vergara, "the Republic
shall cause the dismissal of Vergara from Criminal Case No. 11960." This
commitment was reiterated by former Chairman Mateo Caparas of PCGG in
his May 16, 1990 letters to the petitioners, as related above. The parties'
agreements were then implemented. Petitioners travelled to New York to
testify in the RICO cases against the Marcoses. It was even the PCGG that
shouldered their expenses. All these circumstances prove the judgment of the
PCGG that the pieces of information given by petitioners would establish the
"unlawful manner" with which the Marcoses acquired their wealth.
Contrary to the ruling of the respondent court, the failure of petitioners to
testify in the RICO cases against the Marcoses in New York can not nullify
their immunity. They have satisfied the requirements both of the law and the
parties' implementing agreements. Under section 5 of E.O. No. 14, as
amended, their duty was to give information to the prosecution, and they did.
Under their Memorandum of Agreement, they promised to make themselves
available as witnesses in the said RICO cases, and they did. Petitioners were
ready to testify but they were not called to testify by the US prosecutors of
the RICO case. Their failure to testify was not of their own making. It was
brought about by the decision of the US prosecutors who may have thought
that their evidence was enough to convict the Marcoses. Since petitioners'
failure to testify was not of their own choosing nor was it due to any fault of
their own, justice and equity forbid that they be penalized by the withdrawal
of their immunity. Indeed, initially, the PCGG itself adopted the posture that
the immunity of petitioners stayed and should not be disturbed. It joined the
motion to dismiss filed by petitioners in the respondent court. When the
respondent court denied the motion, PCGG stuck to its previous position as
it again joined the petitioners in their motion for reconsideration. It is only in
this petition for review on certiorari that PCGG, after a change of Chairman,
flip-flopped in its position.
We also rule that there was nothing irregular when PCGG granted a section
5 immunity to petitioners while they were already undergoing trial in
Criminal Case No. 11960. Section 5 of E.O. 14, as amended, does not prohibit
the PCGG from granting immunity to persons already charged in court and
undergoing trial. As long as the privilege of immunity so given will in the
judgment of the PCGG assist it in attaining its greater objectives, the PCGG
is well within legal grounds to exercise this power at any stage of the
proceedings. This section 5 immunity frees and releases one from liability,
and as it inures to the benefit of an accused, it can be invoked at any time
after its acquisition and before his final conviction. Our regard for the rights
of an accused dictates this result. Thus, we have consistently held that laws
that decriminalize an act or a grant of amnesty may be given retroactive
effect. They constitute a bar against the further prosecution of their
beneficiaries' regardless of the appearance of their guilt. To be sure, the guilt
of the petitioners in Criminal Case No. 11960 has yet to be established beyond
doubt. The PCGG itself does not appear certain and confident of the strength
of its evidence against the petitioners in said criminal case. The records show
that petitioners Mapa was granted immunity not only because of the
information he gave to the prosecution but also ". . . in light of Republic's
review of the cases both civil and criminal which it has filed or intends to file
against . . ." him. Similarly, petitioner Vergara was granted immunity ". . . in
light of Republic's review of Vergara's participation in Criminal Case No.
11960 . . . ." After reviewing its evidence against the petitioners, PCGG
appears to have sensed the sterility of its efforts of continuing their
prosecution. Its former chairman, M.A.T. Caparas, learned that petitioners
would file a Motion to Dismiss Criminal Case No. 11960 after PCGG rest its
evidence, "for failure of the prosecution to prove its case." In his May 16,
1990 letters to the petitioners, he assured them that "we shall . . . offer no
objection to its favorable consideration." This is a patent admission that
petitioners' Motion to Dismiss has merit and that the PCGG cannot prove its
case against the petitioners in Criminal Case No. 11960.
Finally, we reject respondent court's ruling that the grant of section 5
immunity must be strictly construed against the petitioners. It simplistically
characterized the grant as special privilege, as if it was gifted by the
195
government, ex gratia. In taking this posture, it misread the raison d'etre and
the long pedigree of the right against self-incrimination vis-a-vis immunity
statutes.

The days of inquisitions brought about the most despicable abuses against
human rights. Not the least of these abuses is the expert use of coerced
confessions to send to the guillotine even the guiltless. To guard against the
recurrence of this totalitarian method, the right against self-incrimination was
ensconced in the fundamental laws of all civilized countries. Over the years,
however, came the need to assist government in its task of containing crime
for peace and order is a necessary matrix of public welfare. To accommodate
the need, the right against self-incrimination was stripped of its absoluteness.
Immunity statutes in varying shapes were enacted which would allow
government to compel a witness to testify despite his plea of the right
against self-incrimination. To insulate these statutes from the virus of
unconstitutionality, a witness is given what has come to be known as
transactional or a use-derivative-use immunity, as heretofore discussed. Quite
clearly, these immunity statutes are not a bonanza from government. Those
given the privilege of immunity paid a high price for it — the surrender of
their precious right to be silent. Our hierarchy of values demands that the right
against self-incrimination and the right to be silent should be accorded greater
respect and protection. Laws that tend to erode the force of these preeminent
rights must necessarily be given a liberal interpretation in favor of the
individual. The government has a right to solve crimes but it must do it,
rightly.

IN VIEW WHEREOF, the resolutions of the respondent court dated March

7, and June 3, 1991 are annulled and set aside and the Amended Information
against the petitioners in Criminal Case No. 11960 is ordered dismissed. No
costs.

196
JESUS T. TANCHANCO and G.R. Nos. 141675-96 a personwhether under the Constitution, a statute or a mere
contractrecognition thereof is required by the government and, if need be,
ROMEO R. LACSON, mandated by this Court.

Petitioners, Present:

Presently for consideration is what appears to be a broken covenant by the

State, made particularly by the Presidential Commission on Good
- versus - PUNO, J. Government (PCGG) to former National Food Authority (NFA)
Administrator Jesus Tanchanco (Tanchanco), one of the petitioners at bar.
Chairman, Granted, it is a covenant that should not be lightly undertaken, involving as it
does the grant of criminal immunity. Notwithstanding, the legal order has
AUSTRIA-MARTINEZ, never subscribed to the notion that promises are meant to be broken.

THE HONORABLE SANDI- CALLEJO, SR., We begin with the facts.

GANBAYAN (Second Division), TINGA, and

Tanchanco served as NFA Administrator from 1972 to 1986, during the
Respondent. CHICO-NAZARIO, JJ. presidency of Ferdinand Marcos. His co-petitioner Romeo Lacson (Lacson)
was the Deputy Administrator of the NFA when he was the Administrator.

Promulgated:
On 6 May 1988, Tanchanco and the PCGG entered into a Cooperation
Agreement,[1] occasioned by the desire of Tanchanco to cooperate with the
Philippine government in connection with the latters efforts in the location
November 25, 2005 and pursuit of government properties purloined by Ferdinand and Imelda
Marcos, their agents and others who hold property on their behalf. In the
x -----------------------------------------------------------------------x Cooperation Agreement, the parties stipulated as follows:

NOW, THEREFORE, in consideration of the mutual covenants contained

DECISION herein and intending to be legally bound hereby, the parties agree as follows:

TINGA, J.: 1. Tanchanco shall cooperate with any and all Philippine Government
investigations or prosecutions pursuant to Executive Order No. 1.
The Courts duty to enforce the law takes on greater imperative when in so
doing, it compels the execution of commitments made by the State to its
citizens. However the modality a right or privilege is granted by the State to

197
2. Cooperation means that Tanchanco shall provide complete,
candid and absolutely truthful disclosures, in response to any and all
questions and inquiries that may be put to him/her in connection with the
Philippines investigations, civil actions, criminal prosecutions, or any other
proceedings whether in the Philippines, the United States or elsewhere.
Further, upon the request of the Philippines, Tanchanco will offer such
cooperation in investigations and proceedings brought by other governments,
including but not limited to the United States and Switzerland.
Cooperation also means a disgorgement of assets, if any, acquired in violation
of Philippine laws, rules and regulations. Cooperation further means a full
disclosure of assets and liabilities, beneficially owned by Tanchanco. Any
assets not therein listed as Tanchancos personal property, and thereafter
discovered to be in Tanchancos name or under his/her legal or beneficial
control, directly or indirectly, as of the date of this Agreement, shall become
the property of the PCGG.
3. Should any of Tanchancos statements or testimonies be false,
misleading or materially incomplete, or should Tanchanco knowingly fail to
act with total honesty and candor in any such matters, the Philippines shall
no longer be bound by any of its representations contained herein. Immunities
and other considerations granted in reliance thereof, shall be null and void.
In return for the above, the Philippines hereby represents and agrees as
follows:
(1) At a time to be mutually agreed upon between Tanchanco and
the Philippines, the Philippines shall move to dismiss all actions that are
presently pending against Tanchanco before the Sandiganbayan and any such
other courts;
(2) The Philippines shall lift any sequestration orders against
Tanchancos properties, if any, and rescind hold orders it may have issued
against his/her actions;
(3) The Philippines shall not bring any additional civil or criminal
charges against Tanchanco, arising from:
(A) Service in or for the Marcos government;
(B) Any other actions revealed by Tanchanco pursuant to his/her
cooperation as defined in this Agreement.
Except as expressly set forth herein, there is no understanding or agreement
of any kind between the Philippines or its counsel, and Tanchanco,
concerning the possible use(s) of his/her liability for criminal or civil
prosecution by the Philippines, or any other jurisdiction.
Nothing in this Agreement between the Philippines and Tanchanco is
conditioned on the result of any proceedings that might be brought or have
been brought against Ferdinand or Imelda Marcos or others in connection
with the information provided or to be provided. Thus none of the obligations
or undertakings described above are in any way dependent upon a jurys or
courts verdict at any trial, or the success of any criminal or civil
prosecution.[2]
Significantly, Tanchanco was called upon as one of the witnesses for the
prosecution in the case filed against Imelda Marcos in New York for violation
of the so-called RICO Act. It appears that his testimony was elicited
concerning the transfer of P10,000,000.00 rebate obtained by the NFA from
the Philippine National Lines to the Security Bank, as well as the matter of
the use of discretionary and/or intelligence funds by the Marcos
administration involving the funds of the NFA during Tanchancos
administration.[3]
Nonetheless, a criminal case, docketed as Criminal Case No. 16950, was filed
in 1991 against Tanchanco with the Sandiganbayan for malversation of
public funds in the amount of P10,000,000.00 from the Philippine National
Bank. Tanchanco filed a Motion for Reinvestigation, wherein he argued that
the case should be dismissed as he had been granted immunity from the said
suit by the PCGG. Eventually, the Sandiganbayan First Division agreed with
Tanchanco and in a Resolution dated 27 October 2000, the case was ordered
dismissed.[4]
198
However, Criminal Case No. 16950 proved to be only just one of several
attempts of the government to prosecute Tanchanco. In 1997, a total of 22
Informations were filed with the Sandiganbayan against Tanchanco. He was
charged with 21 counts of Malversation of Public Funds under Article 217 of
the Revised Penal Code, and one count of Failure of Accountable Officer to
Render Accounts under Article 218 of the same Code.[5] Lacson was charged
as a co-defendant in four of the
informations for Malversation of Public Funds.[6] These cases were
consolidated and raffled to the Sandiganbayan Second Division. On 2
September 1997, Tanchanco and Lacson pleaded not guilty to all of the
charges.[7]
On 26 November 1997, Tanchanco and Lacson filed a Motion to Quash
and/or Dismiss all 22 cases, citing as basis the Cooperation Agreement which
was said to have granted immunity to Tanchanco from criminal prosecution.
They likewise presented an affidavit executed by former Vice-President
Emmanuel Pelaez, who was serving as Philippine Ambassador to the United
States at the time of the New York trial of Imelda Marcos. In his affidavit,
Ambassador Pelaez relevantly stated:
2. During my incumbency as Ambassador, I had the privilege to assist the
Philippine Government thru the Presidential Commission on Good
Government (PCGG) in obtaining the full cooperation of Mr. Jesus
Tanchanco relative to its investigation on the transfer of TEN MILLION
PESOS (P10,000,000.00) rebate obtained by the National Food Authority
(NFA) from the Philippine National Lines (PNL) to the Security Bank. The
scope of investigation also encompassed the controversial use of
discretionary and/or intelligence funds by the Marcos Administration
particularly involving the funds of NFA during the administratorship of Mr.
Tanchanco.
3. In this regard, sometime May 1990, I invited Mr. Jesus Tanchanco, on
behalf of PCGG, to my office in Washington, D.C. to have an investigative
meeting with Atty. Severina Rivera and Atty. Labella, both of whom
presented PCGG in cases against the Marcoses in the U.S. On this occasion,
it was explained to Mr. Tanchanco that his disclosure/testimony on the
adverted P10M fund transfer and the matter of discretionary and intelligence
funds of the NFA were indispensable to the Philippine Governments case
against the Marcoses. I urged him to cooperate with the Government and he
signified his willingness to do so.
4. After a time of reflection, Mr. Tanchanco obliged, and he thereafter had
lengthy question and answer sessions with Attys. Rivera and Labella on the
aforesaid major and other collateral issues.[8]
Still, the motion was denied by the Sandiganbayan Second Division in a
Resolution dated 5 March 1999.[9] The Sandiganbayan examined Section 5
of Executive Order (E.O.) No. 14, which empowered the PCGG to grant
immunity from criminal prosecution, and ruled that the grant of immunity by
the PCGG pertained only to offenses which may arise from the act of a person
testifying or giving information in connection with the recovery of supposed
ill-gotten wealth.
Respondent court declared that the charges of malversation and failure to
render an accounting could not be considered as falling within the immunity
granted to Tanchanco as the offenses were not related or connected to the
testimony or information furnished by Tanchanco in a proceeding concerning
the recovery of the purported ill-gotten wealth of the Marcoses. The
Sandiganbayan opined that the PCGG could not have intended the grant of
immunity to extend to any other crime which Tanchanco may have
committed while serving the Marcos Administration, such as bribery and
rape, since such was beyond the scope of the PCGG to bestow. To construe
the grant of immunity so broadly, held the Sandiganbayan, would violate the
equal protection clause of the Constitution, as well as the due process
clause.[10]
The Sandiganbayan likewise concluded that even assuming the immunity
granted by the Cooperation Agreement covered the offenses charged against
Tanchanco, the same could not benefit Lacson, as he was not a party to the
immunity agreement.[11]
199
A Motion for Reconsideration filed by Tanchanco and Lacson was denied in
a Resolution dated 28 December 1998, the Sandiganbayan declaring therein
that the crimes to which petitioners were charged are beyond the authority
and mandate of the PCGG.[12]
Petitioners now argue before this Court that the grant of immunity under the
Cooperation Agreement encompassed the subject charges. They note that
Tanchanco had given testimony in the United States regarding the
intelligence fund of the NFA, which was used by President Marcos for his
own personal benefit. Petitioners advert to the affidavit attesting to such
testimony by Ambassador Pelaez. It is argued that Tanchanco had complied
with all his commitments made in the Cooperation Agreement, and it would
be the height of gross distortion of justice and both moral and legal outrage
for the government now to welch on the said Agreement after Tanchanco had
already testified against the Marcoses. Petitioners likewise cite the relevant
jurisprudence concerning the grant of immunity from criminal prosecution by
the PCGG.
The Office of the Special Prosecutor, on behalf of the People of the
Philippines, cites the comment filed by the PCGG to the Motion to Quash
and/or Dismiss before the Sandiganbayan, wherein it alleged that contrary to
the terms of the Cooperation Agreement, Tanchanco had not yet provided the
PCGG a full disclosure of assets and liabilities beneficially owned by
Tanchanco.[13] This claim is countered by petitioners, who assert before this
Court that he had already submitted such disclosure to the PCGG even prior
to the execution and signing of the Cooperation Agreement.[14]
The Office of the Solicitor General (OSG), representing respondent
Sandiganbayan, provides a different argument against petitioners. The OSG
reiterates the position of the Sandiganbayan that the 22 charges against
Tanchanco were not covered by the immunity granted by the PCGG, which
pertained only to offenses which may arise from his act in testifying or giving
information in connection with the recovery of ill-gotten wealth.[15]
Before delving into the merits, we make two preliminary qualifications. First,
the general rule under Rule 117 of the Rules of Criminal Procedure is that the
accused may move to quash the complaint or information at any time before
entering his plea and the failure of the accused to assert any ground of a
motion to quash before he pleads to the complaint or information shall be
deemed a waiver of any objection.[16] In this case, Tanchanco and Lacson
had pleaded not guilty in all the subject cases on 2 September 1997, two
months before they filed the instant Motion to Quash and/or Dismiss in
November of 1997. Nonetheless, Section 9 of Rule 117 expressly qualifies
that the failure to timely raise the objection of lack of jurisdiction over the
offense charged cannot be waived,[17] and may be raised or considered motu
proprio by the court at any stage of the proceedings or on appeal.[18] Such
objection could be raised through a motion to dismiss when it is no longer
timely to file a motion to quash.[19] We have no doubt that a claim of
immunity from prosecution arising from an immunity statute or agreement is
a jurisdictional question. A statutory grant of immunity enjoins the
prosecution of a criminal action and thus deprives the court of jurisdiction to
proceed.[20]
Accordingly, the invocation of immunity may have been the proper subject
of petitioners instant motion, and properly cognizable by the Sandiganbayan
even after the plea had been entered. We need not belabor this point further,
especially since none of the parties, and certainly not the Sandiganbayan,
have either raised or considered this aspect of the case.
Second, we note that different circumstances obtain between Tanchanco and
Lacson, the latter being evidently not a party to any immunity agreement with
the Philippine government. Thus, it is proper to treat their cases separately.
We first rule on Tanchancos claim of immunity.
The Plain Meaning of the
Cooperation Agreement
Our first point of reference understandably is the Cooperation Agreement.
Therein, we note that the grant of immunity to Tanchanco is deliberately
broad. It is stipulated that the government shall not bring any additional civil
or criminal charges against Tanchanco arising from: (a) service in or for the
Marcos government; and (b) any other actions revealed by Tanchanco
pursuant to his/her (sic) cooperation as defined in this Agreement.[21]
200

The undertakings expressed by the Philippine government through the PCGG
in the Cooperation Agreement are quite clear-cut, even if broad in scope.
Facially, it seemingly encompasses three classes of actions committed by
Tanchanco: those committed while he was in the service of the Marcos
government; those committed in behalf of the Marcos government; and any
other act revealed by him in the course of his cooperation with the PCGG.
Especially telling are the segregations made in the classification of the acts
covered by the grant of criminal immunity. First, the distinction is laid, as
signified by the conjunctive or, between those acts committed by Tanchanco
arising from service in the Marcos government and those committed for or in
behalf of the Marcos government. The difference between those two classes
of acts is crucial, for if the agreement is construed plainly, the immunity
covers not only those acts committed by Tanchanco for the benefit or under
the instruction of the Marcoses, but even those acts of Tanchanco which may
not have been tinged with the involvement of Marcos or his government yet
which nevertheless occurred during Tanchancos term as NFA Administrator.
On the face of the document, we cannot simply say that the clause should be
read as covering only those acts of Tanchanco which he committed for the
Marcos government while he was in service as NFA Administrator. The use
of the word or signifies the joinder of two distinct concepts: service in and
service for, and it is our conclusion that the PCGG and Tanchanco, in forging
the Cooperation Agreement purposively intended to segregate acts arising
from service in and acts arising from service for the Marcos government.
The Cooperation Agreement also utilizes a distinction between these acts
arising from service in or for the Marcos government, and any other actions
revealed by Tanchanco pursuant to [his] cooperation as defined in the
Agreement. This qualification is again crucial, as it is the contention of the
OSG that the scope of immunity is limited only to those offenses which may
arise from his act in testifying or giving information in connection with the
recovery of ill-gotten wealth. Immunity from criminal prosecution arising
from those acts elicited from Tanchanco in the course of his cooperation falls
squarely within the second ground for immunity, any other actions revealed
by Tanchanco pursuant to [his] cooperation. If indeed, as the OSG suggests,
the scope of immunity is limited to those offenses that arise from Tanchancos
act in testifying or giving information, then why the provision of the first
ground of immunity under the Cooperation Agreement, for acts arising from
service in or service for the Marcos government? The provision is there to
effectuate what it declares.
Other provisions of the Cooperation Agreement likewise indicate that the
intent of the PCGG, as representative of the Philippine government, was to
offer Tanchanco broad protection from criminal prosecution. The Second
Whereas Clause expresses that both Tanchanco and the PCGG are desirous
of resolving their differences and settling all litigation between them.[22]
Moreover, it is stipulated that none of the obligations or undertakings
described [herein] are in any way dependent upon a jurys or courts verdict at
any trial, or the success of any criminal or civil prosecution.[23]
We thus cannot accept the conclusion that the intent of the parties to the
Cooperation Agreement was to limit the scope of immunity to cover only
offenses arising from the testimony or information given by Tanchanco
pursuant to his cooperation; or that said agreement pertains only to those
offenses committed by Tanchanco in behalf of the Marcos government. Such
limited construction is belied by the clear terms of the Cooperation
Agreement.
The reasons or motives of the PCGG in agreeing to so broad an immunity
agreement are not evidently determinable, yet ultimately excluded from the
scope of judicial inquiry. In Mapa v. Sandiganbayan,[24] the Court was asked
to rule on the range and power of the courts to review the exercise of
discretion of the PCGG in granting immunity pursuant to Section 5 of E.O.
No. 14. The Court, speaking through now Senior Associate Justice Reynato
S. Puno, ruled that such review can go no further than to pass upon [the
immunity grants] procedural regularity, and is especially limited to the
questions of (a) whether the person claiming immunity has provided
information or testimony in any investigation conducted by the PCGG in the
discharge of its functions; (b) whether in the bona fide judgment of the
PCGG, the information or testimony given would establish the unlawful
manner in which the respondent, defendant or accused has acquired or
accumulated the property or properties in question; and (c) whether in the
bona fide judgment of the PCGG, such information or testimony is necessary
to ascertain or prove the guilt or civil liability of the respondent, defendant or
accused.[25]
201
The ruling in Mapa, which was ignored by the Sandiganbayan, establishes
several principles that govern this case as seen in our subsequent discussion.
But the first integral point which we now invoke is that the reasons or motives
of the PCGG in granting broad criminal immunity to Tanchanco are beyond
the scope of judicial review. The more appropriate legal question now lies as
to whether the PCGG, in entering into the Cooperation Agreement, acted
within the scope of its statutory authority to extend immunity in the first
place? Does such authority encompass the broadly granted immunity as so
plainly expressed in the Cooperation Agreement?
Statutory Authority of PCGG
To Extend Criminal Immunity
Before we examine the particular statutory authority of the PCGG to extend
criminal immunity, it is useful to recall the unique nature and mandate of the
PCGG itself. The seminal case of BASECO v. PCGG[26] explained the
background behind the creation of the PCGG through E.O. No. 1.
The impugned executive orders are avowedly meant to carry out the explicit
command of the Provisional Constitution, ordained by Proclamation No. 3,
that the President in the exercise of legislative power which she was
authorized to continue to wield "(u)ntil a legislature is elected and convened
under a new Constitution" "shall give priority to measures to achieve the
mandate of the people," among others to (r)ecover ill-gotten properties
amassed by the leaders and supporters of the previous regime and protect the
interest of the people through orders of sequestration or freezing of assets or
accounts."
xxx
Executive Order No. 1 stresses the "urgent need to recover all ill-gotten
wealth," and postulates that "vast resources of the government have been
amassed by former President Ferdinand E. Marcos, his immediate family,
relatives, and close associates both here and abroad." Upon these premises,
the Presidential Commission on Good Government was created, "charged
with the task of assisting the President in regard to . . . (certain specified)
matters," among which was precisely
". . . The recovery of all ill-gotten wealth accumulated by former President
Ferdinand E. Marcos, his immediate family, relatives, subordinates and close
associates, whether located in the Philippines or abroad, including the
takeover or sequestration of all business enterprises and entities owned or
controlled by them, during his administration, directly or through nominees,
by taking undue advantage of their public office and/or using their powers,
authority, influence, connections or relationship."
In relation to the takeover or sequestration that it was authorized to undertake
in the fulfillment of its mission, the PCGG was granted "power and authority"
to do the following particular acts, to wit:
1. "To sequester or place or cause to be placed under its control or possession
any building or office wherein any ill-gotten wealth or properties may be
found, and any records pertaining thereto, in order to prevent their
destruction, concealment or disappearance which would frustrate or hamper
the investigation or otherwise prevent the Commission from accomplishing
its task."
"2. "To provisionally take over in the public interest or to prevent the disposal
or dissipation, business enterprises and properties taken over by the
government of the Marcos Administration or by entities or persons close to
former President Marcos, until the transactions leading to such acquisition by
the latter can be disposed of by the appropriate authorities.
"3. "To enjoin or restrain any actual or threatened commission of acts by any
person or entity that may render moot and academic, or frustrate or otherwise
make ineffectual the efforts of the Commission to carry out its task under this
order."
So that it might ascertain the facts germane to its objectives, it was granted
power to conduct investigations; require submission of evidence by
subpoenae ad testificandum and duces tecum; administer oaths; punish for
contempt. It was given power also to promulgate such rules and regulations
as may be necessary to carry out the purposes of . . . (its creation.)."
xxx
202

Executive Order No. 2 gives additional and more specific data and directions
respecting "the recovery of ill-gotten properties amassed by the leaders and
supporters of the previous regime." It declares that:
1) ". . . the Government of the Philippines is in possession of evidence
showing that there are assets and properties purportedly pertaining to former
Ferdinand E. Marcos, and/or his wife Mrs. Imelda Romualdez Marcos, their
close relatives, subordinates, business associates, dummies, agents or
nominees which had been or were acquired by them directly or indirectly,
through or as a result of the improper or illegal use of funds or properties
owned by the government of the Philippines or any of its branches,
instrumentalities, enterprises, banks or financial institutions, or by taking
undue advantage of their office, authority, influence, connections or
relationship, resulting in their unjust enrichment and causing grave damage
and prejudice to the Filipino people and the Republic of the Philippines;" and
2) ". . . said assets and properties are in the form of bank accounts, deposits,
trust accounts, shares of stocks, buildings, shopping centers, condominiums,
mansions, residences, estates, and other kinds of real and personal properties
in the Philippines and in various countries of the world."
xxx
A third executive order is relevant: Executive Order No. 14, by which the
PCGG is empowered, "with the assistance of the Office of the Solicitor
General and other government agencies, . . . to file and prosecute all cases
investigated by it . . . as may be warranted by its findings." All such cases,
whether civil or criminal, are to be filed "with the Sandiganbayan, which shall
have exclusive and original jurisdiction thereof." Executive
Order No. 14 also pertinently provides that "(c)ivil suits for restitution,
reparation of damages, or indemnification for consequential damages,
forfeiture proceedings provided for under Republic Act No. 1379, or any
other civil actions under the Civil Code or other existing laws, in connection
with . . . (said Executive Orders Numbered 1 and 2) may be filed separately
from and proceed independently of any criminal proceedings and may be
proved by a preponderance of evidence;" and that, moreover, the "technical
rules of procedure and evidence shall not be strictly applied to . . . (said) civil
cases."[27]
Executive Order No. 14, as amended by E.O. No. 14-A, defines the
jurisdiction over cases involving the ill-gotten wealth of former President
Ferdinand E. Marcos, Mrs. Imelda R. Marcos, members of their immediate
family, close relatives, subordinates, close and/or business associates,
dummies, agents and nominees.[28] It is Section 5 thereof, as amended,
which authorizes the PCGG to grant immunity from criminal prosecution, in
the following manner:
Sec. 5. The Presidential Commission on Good Government is authorized to
grant immunity from criminal prosecution to any person who provides
information or testifies in any investigation conducted by such Commission
to establish the unlawful manner in which any respondent, defendant or
accused has acquired or accumulated the property or properties in question in
any case where such information or testimony is necessary to ascertain or
prove the latter's guilt or his civil liability. The immunity thereby granted
shall be continued to protect the witness who repeats such testimony before
the Sandiganbayan when required to do so by the latter or by the
Commission.[29]
From these premises, we can draw useful conclusions. Section 5 is worded in
such a manner as it does not provide any express limitations as to the scope
of immunity from criminal prosecution that the PCGG is authorized to grant.
The qualifications that Section 5 do provide relate to the character of the
information or testimony before the PCGG of the grantee of immunity,
namely, that it establish[es] the unlawful manner in which any respondent,
defendant or accused has acquired or accumulated the property or properties
in question in any case where such information or testimony is necessary to
ascertain or prove the latter's guilt or his civil liability.
While there is no doubt that the information or testimony of the grantee must
pertain to the manner of acquisition of ill-gotten wealth by the Marcoses, their
close relatives and associates, the question now before us is whether the
available immunity from criminal prosecution relates only to the prosecution
of the grantee in like minded cases. The Sandiganbayan opined in the
affirmative, declaring that [t]he charges of malversation and failure to render
203
an account cannot be considered within the purview of the immunity granted
to Tanchanco by the PCGG, since the offenses are not related to or connected
with the testimony or information furnished by Tanchanco in a proceeding
concerning the recovery of the purported ill-gotten wealth of the former
President, his relatives and associates.[30] We are constrained to disagree.
The Court has been called upon before to construe Section 5 of E.O. No. 14-
A. As earlier noted, the Court in Mapa[31] held that the power of the
Sandiganbayan to review such grant of immunity by the PCGG could go no
further than to pass upon its procedural regularity. In Chavez v. PCGG,[32]
the Court reiterated that the conditions under which the PCGG may grant
criminal immunity were: (1) the person to whom criminal immunity is
granted provides information or testifies in an investigation conducted by the
Commission; (2) the information or testimony pertains to the unlawful
manner in which the respondent, defendant or accused acquired or
accumulated ill-gotten property; and (3) such information or testimony is
necessary to ascertain or prove guilt or civil liability of such individual.[33]
The Court in both cases adverted to the same characterization of criminal
immunity under Section 5. Notably, the Court did not affirm the belief that
the scope of criminal immunity was limited to any class of criminal acts,
offenses, or casesunderstandable considering that Section 5 does not make
any such qualification. Moreover, our ruling in Mapa went as far as to
squarely characterize the witness under Section 5 of E.O. No. 14-A as
completely immunized from prosecution.[34] In the same case, the Court
even upheld the immunity granted to petitioners Mapa and Vergara despite
the fact that the PCGG subsequently reversed track and acceded to the
prosecution of the said petitioners.
To be certain, the Sandiganbayans conclusion in this case is not entirely off-
base. We have recognized in this jurisdiction that American common law
generally recognizes two kinds of statutory criminal immunity available to a
witness: transactional immunity and the use-and-derivative-use
immunity.[35] Transactional immunity is broader in the scope of its
protection. By its grant, a witness can no longer be prosecuted for any offense
whatsoever arising out of the act or transaction to which the testimony relates.
In contrast, by the grant of use-and-derivative-use immunity, a witness is only
assured that his or her particular testimony and evidence derived from it will
not be used against him or her in a subsequent prosecution.[36]
Applying the broader standard of transactional immunity, it might be argued
that the immunity which the PCGG is authorized to grant to Tanchanco
should pertain only to those acts or offenses which are the subject of the
information or testimony given by him. Considering though that the
applicable law at hand does not make such a qualification, the adoption of
that view would force us into a concession that the legislative authority to
grant criminal immunity is limited to transactional or use-and-derivative-use
immunity. We cannot accept the proposition.
Transactional immunity derives from common-law tradition, which gives
greater deference to the weight of judicial precedents since the codification
of laws by the legislature is atypical in practice. In our jurisdiction though,
the definition of crimes and provision of criminal penalties are ineluctably
within the sole province of the legislative branch of government. It thus
follows that this prerogative necessarily empowers the legislative to enact
conditions under which a class of persons may be immune from criminal or
civil prosecution. Since the legislature possesses sole discretion to enact
statutes to such effect, it is not obliged to conform with judge-made standards,
or even traditional modalities concerning the grant of criminal immunity. The
solitary limitation on legislative grant of immunity, as with all other
legislative acts, is adherence to the Constitution.
Another consideration impels us to sustain this broad application of immunity
under Section 5 of E.O. No. 14-A. We cannot ignore the special
circumstances under which the PCGG was created, and the extra-ordinary
powers with which it was vested. The Freedom Constitution itself, under
which regime the body was created, recognized the need to [r]ecover ill-
gotten properties amassed by the leaders and supporters of the [Marcos]
regime. It has been acknowledged that the PCGG is charged with the
herculean task of bailing the country out of the financial bankruptcy and
morass of the previous regime and returning to the people what is rightfully
theirs.[37] For this reason, the PCGG was granted quasi-judicial
functions[38] encompassing special investigatory and prosecutorial powers,
among them, the power to grant immunity.
204
In tracing and recovering the colossal sums of ill-gotten wealth, the PCGG
would inevitably collide with powerful interests. Persons who would be able
to assist in the prosecution of cases of ill-gotten wealth may understandably
be hesitant to cooperate with the PCGG without the assurance of some
protection, or perhaps corresponding benefit on their part. There may be some
inherent unease with the notion that persons may acquit themselves of their
own criminal culpability by striking a deal with the government, yet the
process of compromise has long been allowed in our jurisdiction, and in the
jurisdiction of other states as well.[39] This holds especially true in the
prosecution of ill-gotten wealth cases, which not only involve monumental
amounts, but have also ineluctably acquired immense symbolic value.
The overwhelming need to prosecute the ill-gotten wealth cases is entrenched
in statute and public policy. The stakes being as they are, the need is apparent
for a highly conducive environment under which witnesses may be induced
to cooperate with the PCGG in the prosecution of the ill-gotten wealth cases.
The authorization of the PCGG to broadly extend criminal immunity, as is
apparent in the language of Section 5, is attuned to such aims. Certainly,
Section 5 as constructed leads to a reasonable conclusion that the scope of
criminal immunity which the PCGG may offer need not be limited to
prosecution relating to the information or testimony offered by the witness.
And it is apparent on the face of the Cooperation Agreement with Tanchanco
that the PCGG understood just as well that it had the power to grant criminal
immunity even over such acts which did not directly bear on the information
or testimony.
Our conclusion is also supported by the fact that based on the PCGG
immunity agreements which have come before this Court, the scope of
offered immunity has proven variable. For example, the grant of immunity
accorded by the PCGG to Jose Yao Campos and his family was qualified only
by reference to Section 5 of E.O. No. 14[40]. On the other hand, the immunity
received by Placido Mapa and Lorenzo Vergara was limited over any offense
with reference to which [their] testimony and information are given,
including any offense and commission of which any information, directly or
indirectly derived from such testimony or other information is used as basis
thereof, except a prosecution for perjury and/or giving false testimony.[41]
In Tanchancos case, his entitlement to criminal immunity applies to three
determinate circumstances: for acts committed while he was in the service of
the Marcos government; acts committed in behalf of the Marcos government;
and any other act revealed by him in the course of his cooperation with the
PCGG.
These variances are indicative of the fact that the PCGG has the discretion to
vest appropriate levels of criminal immunity according to the particular
witness. There are several factors that may affect this choice, which may
include the relative importance of the witness to the prosecution of ill-gotten
wealth cases, the degree of culpability of such cases, or even the conditions
expressed by the witness as sufficient to induce cooperation. Given the
language of Section 5, we do not doubt the latitude afforded to the PCGG in
determining the extent of criminal immunity it can afford the cooperative
witness. Such is conformable to the unprecedented power of the PCGG to
grant criminal immunity. We made the following pertinent observations in
Mapa:
We observe that in contrast to our other laws on immunity, section 5 of E.O.
No. 14, as amended, confers on the PCGG the power to grant immunity alone
and on its own authority. The exercise of the power is not shared with any
other authority. Nor is its exercise subject to the approval or disapproval of
another agency of government. The basic reason for vesting the power
exclusively on the PCGG lies in the principles of separation of power. The
decision to grant immunity from prosecution forms a constituent part of the
prosecution process. It is essentially a tactical decision to forego prosecution
of a person for government to achieve a higher objective. It is a deliberate
renunciation of the right of the State to prosecute all who appear to be guilty
of having committed a crime. Its justification lies in the particular need of the
State to obtain the conviction of the more guilty criminals who, otherwise,
will probably elude the long arm of the law. Whether or not the delicate power
should be exercised, who should be extended the privilege, the timing of its
grant, are questions addressed solely to the sound judgment of the
prosecution. The power to prosecute includes the right to determine who shall
be prosecuted and the corollary right to decide whom not to prosecute. In
reviewing the exercise of prosecutorial discretion in these areas, the
jurisdiction of the respondent court is limited. For the business of a court of
justice is to be an impartial tribunal, and not to get involved with the success
or failure of the prosecution to prosecute. Every now and then, the
prosecution may err in the selection of its strategies, but such errors are not
for neutral courts to rectify, any more than courts should correct the blunders
of the defense. For fairness demands that courts keep the scales of justice at
205
equipoise between and among all litigants. Due process demands that courts
should strive to maintain the legal playing field perfectly even and perpetually
level.[42]
Certainly, especially since nothing in Section 5 mandates a minimum
standard of criminal immunity, the PCGG was not obliged to grant
Tanchanco so broad an exemption. Yet the extent to which it did is
permissible under E.O. No. 14-A, and we are wont to uphold the broad grant,
especially as it favors a criminal defendant. Ambiguities in immunity
agreements must be construed against the State,[43] and any question of
interpretation must be resolved in favor of the defendant,[44] following the
underlying fundamental principle that all doubts must be resolved in favor of
the accused.
We are not in accord with the behavior of both the government and the
Sandiganbayan in this case. We have reviewed the pertinent memoranda
prepared respectively by the Commission on Audit and the Office of the
Special Prosecutor which eventually served as the basis for the institution of
the cases. From these documents, it is clear that no consideration was given
to the possible effects of the Cooperation Agreement on the viability of
prosecuting Tanchanco. The attitude of the investigators and prosecutors
appears to have been to pretend that the Cooperation Agreement did not exist
at all. This fact weakens the believability of belated claims, raised in
opposition to the instant motion to quash/dismiss, that Tanchanco had
actually violated portions of the Cooperation Agreement. The indications are
that the prosecutors, prior to the institution of the case, had not considered
such agreement at all as a factor, despite the clear language therein.
If indeed the government had known as a fact that Tanchanco had violated
his obligations under the Cooperation Agreement, the very least it could have
done was to notify him of such violations, or of its intent to rescind the
Cooperation Agreement. Vested rights were at stake which affected the
liberty of a person, and any deprivation or revocation therein could not be
effected in so blithe a fashion as that which occurred in this case.
Neither does it appear that the Sandiganbayan had given careful consideration
to the Cooperation Agreement when it ruled on the motion to quash/dismiss.
It resorted to generalizations such as the offenses are not related to or
connected with the testimony or information furnished by Tanchanco[45] or
the subject matter of the informations are NFA funds and the records do not
indicate that they have any relation whatsoever to the ill-gotten wealth of the
Marcoses or their cronies.[46]
Yet from the results of the investigations that led to the institution of the
charges, it is clear that the cases against Tanchanco arose from the following
acts or irregularities: (1) the transfer of NFA funds either to Tanchancos
personal account, the account of Oplan
Wag-Wag, or a private institution; (2) the failure to account for several
classes of funds received by Tanchanco, including discretionary funds,
amounts contributed to the Food Production and Nutrition Fund, and other
donations. From the Pelaez affidavit, it is clear that the PCGG had precisely
investigated the anomalous transfer of NFA funds during the Marcos
Administration, particularly the use of discretionary or intelligence funds of
the NFA, and that Tanchanco had given information relating to such
investigation.
Faced with these facts, the conclusion of the Sandiganbayan that the subject
informations bore no relation either to the acquisition of ill-gotten wealth or
the investigations of the PCGG is questionable. It may be within the realm of
possibility that at least some of the charges against Tanchanco pertain to acts
he performed for his own personal benefit, without regard to the scheme
implemented for the acquisition of ill-gotten wealth. Still, neither the
Sandiganbayan nor the prosecution appears to have seriously considered or
laid down such a distinction. And besides, as earlier stated, the scope of the
Cooperation Agreement itself precludes the prosecution of Tanchanco under
the subject charges.
We should observe that the Sandiganbayan First Division, in a different case,
had also considered the application of the Cooperation Agreement in the
criminal prosecution of Tanchanco. The disposition of the instant motion to
quash and/or dismiss of the Sandiganbayan Second Division pales in
comparison to the judicious deliberation of the First Division, through the late
Presiding Justice Francis Garchitorena. Particularly admirable was how the
First Division had applied this Courts precedents on the authority of the
PCGG to grant criminal immunity, especially Mapa. The First Division cited
the threefold test laid down in Mapa on the parameters under which the
206
Sandiganbayan could review the grant of immunity, and arrived at the
following crucial conclusions, namely: (i) that Tanchanco had cooperated
with the PCGG in obtaining information on the Marcos wealth; and (ii) that
the PCGG exercised bona fide judgment in deciding to grant immunity to
Tanchanco. In contrast, the Sandiganbayan Second Division, without
considering Mapa and other relevant precedents, rashly concluded without
palpable basis that the Cooperation Agreement did not cover the subject
charges.[47]
exempt from prosecution, or who performed no act to the benefit of the State
that may have served as basis for a possible grant of exemption. It should be
emphasized that the grant of immunity to Tanchanco did not have the effect
of obviating all consequential culpabilities arising from Tanchancos acts.
Only Tanchancos own criminal liability was extirpated, for the reason that
the government saw a higher social value in eliciting information from him
rather than engaging in his prosecution. No correlative tradeoff occurred as
to Lacson, so we do not see any reason in law or in equity to exempt him as
well.

We thus hold that the Cooperation Agreement, validly undertaken between
the PCGG and Tanchanco as it was, precludes the prosecution of Tanchanco
under the subject charges. The Sandiganbayan acted with grave abuse of
discretion in refusing to dismiss the charges despite its lack of jurisdiction to
continue hearing the cases against Tanchanco. The present petition, insofar
as it relates to Tanchanco, must be granted. It goes without saying though that
this ruling does not shield all grantees under Section 5 of E.O. No. 14-A from
all kinds
It may seem unsettling to some that Lacson will have to endure criminal
prosecution while Tanchanco would be discharged, or that Tanchanco will
need not answer for whatever culpable acts of his during his service in the
Marcos government. Yet the Court is not the guarantor of karmic warrants,
but only of legal ones. The Cooperation Agreement, entered into in the
judgment of the State that it would serve a higher end of justice, is a valid
document, enforceable as to Tanchanco before this Court and other courts of
the land.

of criminal prosecution. The extent of immunity available to each particular

grantee depends on their respective immunity agreements with the PCGG and
the surrounding facts. WHEREFORE, the petition is GRANTED IN PART. The Court hereby
orders the DISMISSAL of the SUBJECT CRIMINAL CASES INSOFAR AS
Lacson Not Entitled To Immunity PETITIONER JESUS TANCHANCO IS CONCERNED. No
pronouncement as to costs.
A different result must obtain for petitioner Lacson. There is no legal basis
that would preclude his prosecution under the subject informations. The
reason is simple. There is no subsisting agreement by virtue of which the
State granted any kind of immunity from criminal prosecution to Lacson.
Certainly, Lacson could not inveigh that Tanchancos Cooperation Agreement
also applies as to him since he was not a party thereto. Nor is there, on the
face of the Cooperation Agreement, any evident intention on the part of the
PCGG and Tanchanco to extend the grant of immunity to other persons as
well. Besides, even if there was such intent, it may be of doubtful validity
since the authority of the PCGG to grant immunity under Section 5-A of E.O.
No. 14-A is limited to person[s] who provide information or testif[y] in any
investigation conducted by [the PCGG].[48]

Criminal immunity must be specifically granted.[49] We cannot uphold a

grant of criminal immunity to a person whom the State never intended to

207
UNITED STATES v. BALSYS
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE SECOND CIRCUIT
No. 97-873. Argued April 20, 1998-Decided June 25,1998
When the Office of Special Investigations of the Department of Justice's
Criminal Division (OSI) subpoenaed respondent Balsys, a resident alien, to
testify about his wartime activities between 1940 and 1944 and his
immigration to the United States, he claimed the Fifth Amendment privilege
against self-incrimination, based on his fear of prosecution by a foreign
nation. The Federal District Court granted OSI's petition to enforce the
subpoena, but the Second Circuit vacated the order, holding that a witness
with a real and substantial fear of prosecution by a foreign country may assert
the privilege to avoid giving testimony in a domestic proceeding, even if the
witness has no valid fear of a criminal prosecution in this country.
Held: Concern with foreign prosecution is beyond the scope of the
SelfIncrimination Clause. Pp. 671-700.
(a) As a resident alien, Balsys is a "person" who, under that Clause, cannot
"be compelled in any criminal case to be a witness against himself." See
Kwong Hai Ghew v. Golding, 344 U. S. 590, 596. However, the question
here is whether a criminal prosecution by a foreign government not subject
to this country's constitutional guarantees presents a "criminal case" for
purposes of the privilege. Pp. 671-672.
(b) Balsys initially relies on the textual contrast between the Sixth
Amendment, which clearly applies only to domestic criminal proceedings,
and the Fifth, with its broader reference to "any criminal case," to argue that
"any criminal case" means exactly that, regardless of the prosecuting
authority. But the argument overlooks the cardinal rule to construe provisions
in context. See King v. St. Vincent's Hospital, 502 U. S. 215, 221. Because
none of the other provisions of the Fifth Amendment is implicated except by
action of the government that it binds, it would have been strange to choose
such associates for a Clause meant to take a broader view. Further, a more
modest understanding, that "any criminal case" distinguishes the Fifth
Amendment's SelfIncrimination Clause from its Clause limiting grand jury
indictments to "capital, or otherwise infamous crime[s]," provides an
explanation for the text of the privilege. Indeed, there is no known clear
common-law precedent or practice, contemporaneous with the framing, for
looking to
667
the possibility offoreign prosecution as a premise for claiming the privilege.
Pp. 672-674.
(c) In the precursors of this case, the Court concluded that prosecution in a
state jurisdiction not bound by the Self-Incrimination Clause is beyond the
purview of the privilege. United States v. Murdock, 284 U. S. 141. United
States v. Saline Bank of Va., 1 Pet. 100, and Ballmann v. Fagin, 200 U. S.
186, distinguished. The Court's precedent turned away from this proposition
once, in Malloy v. Hogan, 378 U. S. 1, 3, where it applied the Fourteenth
Amendment due process incorporation to the Self-Incrimination Clause, so
as to bind the States as well as the National Government by its terms. It
immediately said, in Murphy v. Waterfront Comm'n of N. Y. Harbor, 378 U.
S. 52, 57, that Malloy necessitated a reconsideration of Murdock's rule. After
Malloy, the Fifth Amendment limitation was no longer framed for one
jurisdiction alone, each jurisdiction having instead become subject to the
same privilege claim flowing from the same source. Since fear of prosecution
in the one jurisdiction now implicated the very privilege binding upon the
other, the Murphy opinion sensibly recognized that if a witness could not
assert the privilege in such circumstances, the witness could be "whipsawed"
into incriminating himself under both state and federal law, even though the
privilege was applicable to each. Such whipsawing is possible because the
privilege against self-incrimination can be exchanged by the government for
an immunity to prosecutorial use of any compelled inculpatory testimony.
Kastigar v. United States, 406 U. S. 441, 448-449. Such an exchange by the
government is permissible only when it provides immunity as broad as the
privilege. After Malloy had held the privilege binding on the state
jurisdictions as well as the National Government, it would have been
intolerable to allow a prosecutor in one or the other jurisdiction to eliminate
the privilege by offering immunity less complete than the privilege's dual
jurisdictional reach. To the extent that the Murphy Court undercut Murdock's
rationale on historical grounds, its reasoning that English cases supported a
more expansive reading of the Clause is flawed and cannot be accepted now.
Pp.674-690.
208
(d) Murphy discusses a catalog of "Policies of the Privilege," which could
suggest a concern broad enough to encompass foreign prosecutions.
However, the adoption of such a revised theory would rest on Murphy's
treatment of English cases, which has been rejected as an indication of the
Clause's meaning. Moreover, although Murphy catalogs aspirations furthered
by the Clause, its discussion does not weigh the host of competing policy
concerns that would be raised in a legitimate reconsideration of the Clause's
scope. Contrary to Balsys's
668
Syllabus
contention, general personal testimonial integrity or privacy is not a reliable
guide to the Clause's scope of protection. Fifth Amendment tradition offers,
in practice, a conditional protection of testimonial privacy. Since the judiciary
could not recognize fear of foreign prosecution and at the same time preserve
the Government's existing rights to seek testimony in exchange for immunity
(because domestic courts could not enforce the immunity abroad), extending
the privilege would change the balance of private and governmental interests
that has been accepted for as long as there has been Fifth Amendment
doctrine. Balsys also argues that Murphy's policy catalog supports application
of the privilege in order to prevent the Government from overreaching to
facilitate foreign criminal prosecutions in a spirit of "cooperative
internationalism." Murphy recognized "cooperative federalism"-the
teamwork of state and national officials to fight interstate crime-but only to
underscore the significance of the Court's holding that a federal court could
no longer ignore fear of state prosecution when ruling on a privilege claim.
Since in this case there is no counterpart to Malloy, imposing the Fifth
Amendment beyond the National Government, there is no premise in Murphy
for appealing to "cooperative internationalism" by analogy to "cooperative
federalism." The analogy must, instead, be to the pre-Murphy era when the
States were not bound by the privilege. Even if "cooperative federalism" and
"cooperative internationalism" did support expanding the privilege's scope,
Balsys has not shown that the likely costs and benefits justify such expansion.
Cooperative conduct between the United States and foreign nations may one
day develop to a point at which fear of foreign prosecution could be
recognized under the Clause as traditionally understood, but Balsys has
presented no interest rising to such a level of cooperative prosecution. Pp.
690-700.
119 F.3d 122, reversed and remanded.
SOUTER, J., delivered the opinion of the Court, in which REHNQUIST, C.
J., and STEVENS, O'CONNOR, and KENNEDY, JJ., joined, and in which
SCALIA and THOMAS, JJ., joined as to Parts I, II, and III. STEVENS, J.,
filed a concurring opinion, post, p. 700. GINSBURG, J., filed a dissenting
opinion, post, p. 701. BREYER, J., filed a dissenting opinion, in which
GINSBURG, J., joined, post, p. 702.
Deputy Solicitor General Dreeben argued the cause for the United States.
With him on the briefs were Solicitor General Waxman, Acting Assistant
Attorney General Keeney, Barbara McDowell, and Joseph C. Wyderko.
669
Ivars Berzins argued the cause and filed a brief for respondent. *
JUSTICE SOUTER delivered the opinion of the Court.t
By administrative subpoena, the Office of Special Investigations of the
Criminal Division of the United States Department of Justice (OSI) sought
testimony from the respondent, Aloyzas Balsys, about his wartime activities
between 1940 and 1944 and his immigration to the United States in 1961.
Balsys declined to answer such questions, claiming the Fifth Amendment
privilege against self-incrimination, based on his fear of prosecution by a
foreign nation. We hold that concern with foreign prosecution is beyond the
scope of the Self- Incrimination Clause.
I
Respondent Aloyzas Balsys is a resident alien living in Woodhaven, New
York, having obtained admission to this country in 1961 under the
Immigration and Nationality Act, 8 U. S. C. § 1201, on an immigrant visa
and alien registration issued at the American Consulate in Liverpool. In his
application, he said that he had served in the Lithuanian army between 1934
and 1940, and had lived in hiding in Plateliai, Lithuania, between 1940 and
1944. Balsys swore that the information was true, and signed a statement of
understanding that if his application contained any false information or
209
materially misleading statements, or concealed any material fact, he would
be subject to criminal prosecution and deportation.
*Elizabeth Holtzman and Sanford Hausler filed a brief for the World Jewish
Congress et al. as amici curiae urging reversal.
John D. Cline, Barbara E. Bergman, and John L. Pollok filed a brief for the
National Association of Criminal Defense Lawyers et al. as amici curiae
urging affirmance.
tJUSTICE SCALIA and JUSTICE THOMAS join only Parts I, II, and III of
this opinion.
670
OSI, which was created to institute denaturalization and deportation
proceedings against suspected Nazi war criminals, is now investigating
whether, contrary to his representations, Balsys participated in Nazi
persecution during World War II. Such activity would subject him to
deportation for persecuting persons because of their race, religion, national
origin, or political opinion under §§ 1182(a)(3)(E) and 1251(a)(4)(D), as well
as for lying on his visa application under §§ 1182(a)(6)(C)(i) and
1251(a)(1)(A).
When OSI issued a subpoena requiring Balsys to testify at a deposition, he
appeared and gave his name and address, but he refused to answer any other
questions, such as those directed to his wartime activities in Europe between
19401945 and his immigration to the United States in 1961. In response to all
such questions, Balsys invoked the Fifth Amendment privilege against
compelled self-incrimination, claiming that his answers could subject him to
criminal prosecution. He did not contend that he would incriminate himself
under domestic law,l but claimed the privilege because his responses could
subject him to criminal prosecution by Lithuania, Israel, and Germany.
OSI responded with a petition in Federal District Court to enforce the
subpoena under § 1225(a). Although the District Court found that if Balsys
were to provide the information requested, he would face a real and
substantial danger of prosecution by Lithuania and Israel (but not by
Germany), it granted OS1's enforcement petition and ordered Balsys to
testify, treating the Fifth Amendment as inapplicable to a claim of
incrimination solely under foreign law. 918 F. Supp. 588 (EDNY 1996).
Balsys appealed, and the Court of Appeals for the Second Circuit vacated the
District Court's order, holding that a witness with a real and substantial fear
of prosecution by a foreign country may assert the Fifth Amendment privilege
to avoid giving testimony in a domes-
1 The Government advises us that the statute of limitation bars criminal
prosecution for any misrepresentation. Tr. of Oral Arg. 4.
671
tic proceeding, even if the witness has no valid fear of a criminal prosecution
in this country. 119 F.3d 122 (1997). We granted certiorari, 522 U. S. 1072
(1998), to resolve a conflict among the Circuits on this issue 2 and now
reverse.
II
The Self-Incrimination Clause of the Fifth Amendment provides that "[n]o
person ... shall be compelled in any criminal case to be a witness against
himself." U. S. Const., Arndt. 5. Resident aliens such as Balsys are considered
"persons" for purposes of the Fifth Amendment and are entitled to the same
protections under the Clause as citizens. See Kwong Hai Ghew v. Golding,
344 U. S. 590, 596 (1953). The parties do not dispute that the Government
seeks to "compel" testimony from Balsys that would make him "a witness
against himself." The question is whether there is a risk that Balsys's
testimony will be used in a proceeding that is a "criminal case."
Balsys agrees that the risk that his testimony might subject him to deportation
is not a sufficient ground for asserting the privilege, given the civil character
of a deportation proceeding. See INS v. Lopez-Mendoza, 468 U. S. 1032,
1038-1039 (1984). If, however, Balsys could demonstrate
2 See United States v. Gecas, 120 F.3d 1419 (CAll 1997) (en bane) (holding
that the privilege cannot be invoked based on fear of prosecution abroad);
United States v. (Under Seal), 794 F.2d 920 (CA4) (same), cert. denied sub
nom. Araneta v. United States, 479 U. S. 924 (1986); In re Parker, 411 F.2d
1067 (CAW 1969) (same), vacated as moot, 397 U. S. 96 (1970).
210
We have granted certiorari in cases raising this question twice before but did
not reach its merits in either case. See Zicarelli v. New Jersey Comm'n of
Investigation, 406 U. S. 472 (1972) (finding that because the petitioner did
not face a "real and substantial" risk of foreign prosecution, it was
unnecessary to decide whether the privilege can be asserted based on fear of
foreign prosecution); Parker v. United States, 397 U. S. 96 (1970) (per
curiam) (vacating and remanding with instructions to dismiss as moot).
672
that any testimony he might give in the deportation investigation could be
used in a criminal proceeding against him brought by the Government of
either the United States or one of the States, he would be entitled to invoke
the privilege. It "can be asserted in any proceeding, civil or criminal,
administrative or judicial, investigatory or adjudicatory," in which the
witness reasonably believes that the information sought, or discoverable as a
result of his testimony, could be used in a subsequent state or federal criminal
proceeding. Kastigar v. United States, 406 U. S. 441, 444-445 (1972); see
also McCarthy v. Arndstein, 266 U. S. 34, 40 (1924) (the privilege "applies
alike to civil and criminal proceedings, wherever the answer might tend to
subject to criminal responsibility him who gives it"). But Balsys makes no
such claim, contending rather that his entitlement to invoke the privilege
arises because of a real and substantial fear that his testimony could be used
against him by Lithuania or Israel in a criminal prosecution. The
reasonableness of his fear is not challenged by the Government, and we thus
squarely face the question whether a criminal prosecution by a foreign
government not subject to our constitutional guarantees presents a "criminal
case" for purposes of the privilege against self-incrimination.
III
Balsys relies in the first instance on the textual contrast between the Sixth
Amendment, which clearly applies only to domestic criminal proceedings,
and the Compelled SelfIncrimination Clause, with its facially broader
reference to "any criminal case." The same point is developed by Balsys's
amici,3 who argue that "any criminal case" means exactly that, regardless of
the prosecuting authority. According to the argument, the Framers' use of the
adjective "any" precludes recognition of the distinction raised by the
3 See Brief for National Association of Criminal Defense Lawyers et al. as
Amici Curiae 5.
673
Government, between prosecution by a jurisdiction that is itself bound to
recognize the privilege and prosecution by a foreign jurisdiction that is not.
But the argument overlooks the cardinal rule to construe provisions in
context. See King v. St. Vincent's Hospital, 502 U. S. 215, 221 (1991). In the
Fifth Amendment context, the Clause in question occurs in the company of
guarantees of grand jury proceedings, defense against double jeopardy, due
process, and compensation for property taking. Because none of these
provisions is implicated except by action of the government that it binds, it
would have been strange to choose such associates for a Clause meant to take
a broader view, and it would be strange to find such a sweep in the Clause
now. See Wharton v. Wise, 153 U. S. 155, 169-170 (1894) (noscitur a sociis);
see also Gustafson v. Alloyd Co., 513 U. S. 561, 575 (1995) (same). The
oddity of such a reading would be especially stark if the expansive language
in question is open to another reasonable interpretation, as we think it is.
Because the Fifth Amendment opens by requiring a grand jury indictment or
presentment "for a capital, or otherwise infamous crime,"4 the phrase
beginning with "any" in the subsequent Self- Incrimination Clause may
sensibly be read as making it clear that the privilege it provides is not so
categorically limited. It is plausible to suppose the adjective was inserted only
for that purpose, not as taking the further step of defining the relevant
prosecutorial jurisdiction internationally. We therefore take this to be the fair
reading of the adjective "any," and we read the Clause contextually as
4 As a whole, the Amendment reads as follows: "No person shall be held to
answer for a capital, or otherwise infamous crime, unless on a presentment or
indictment of a Grand Jury, except in cases arising in the land or naval forces,
or in the Militia, when in actual service in time of War or public danger; nor
shall any person be subject for the same offence to be twice put in jeopardy
of life or limb; nor shall be compelled in any criminal case to be a witness
against himself, nor be deprived of life, liberty, or property, without due
process of law; nor shall private property be taken for public use, without just
compensation."
674
211
apparently providing a witness with the right against compelled self-
incrimination when reasonably fearing prosecution by the government whose
power the Clause limits, but not otherwise. Since there is no helpful
legislative history,5 and because there was no different common law practice
at the time of the framing, see Part III-C, infra; cf. Counselman v. Hitchcock,
142 U. S. 547, 563-564 (1892) (listing a sample of cases, including
preframing cases, in which the privilege was asserted, none of which involve
fear of foreign prosecution), there is no reason to disregard the contextual
reading. This Court's precedent has indeed adopted that so-called same-
sovereign interpretation.
A the self-incrimination privilege, good against the National Government, was
The currently received understanding of the Bill of Rights as instituted "to
curtail and restrict the general powers granted to the Executive, Legislative,
and Judicial Branches" of the National Government defined in the original
constitutional articles, New York Times Co. v. United
5 See Gecas, 120 F. 3d, at 1435 (noting that the Clause has "virtually no
legislative history"); 5 The Founders' Constitution 262 (P. Kurland & R.
Lerner eds. 1987) (indicating that the Clause as originally drafted and
introduced in the First Congress lacked the phrase "any criminal case," which
was added at the behest of Representative Lawrence on the ground that the
Clause would otherwise be "in some degree contrary to laws passed").
In recent years, scholarly attention has refined our knowledge of the previous
manifestations of the privilege against self-incrimination, the present
culmination of such scholarship being R. Helmholz et al., The Privilege
Against Self-Incrimination (1997). What we know of the circumstances
surrounding the adoption of the Fifth Amendment, however, gives no
indication that the Framers had any sense of a privilege more comprehensive
than common law practice then revealed. See Moglen, Taking the Fifth:
Reconsidering the Origins of the Constitutional Privilege Against Self-
Incrimination, 92 Mich. L. Rev. 1086, 1123 (1994) ("[T]he legislative history
of the Fifth Amendment adds little to our understanding of the history of the
privilege"). As to the common law practice, see Part III-C, infra.
675
States, 403 U. S. 713, 716 (1971) (per curiam) (Black, J., concurring)
(emphasis deleted), was expressed early on in Chief Justice Marshall's
opinion for the Court in the leading case of Barron ex rel. Tiernan v. Mayor
of Baltimore, 7 Pet. 243, 247 (1833): the Constitution's "limitations on power
... are naturally, and, we think, necessarily applicable to the government
created by the instrument," and not to "distinct [state] governments, framed
by different persons and for different purposes."
To be sure, it would have been logically possible to decide (as in Barron) that
the "distinct [state] governments ... framed ... for different purposes" were
beyond the ambit of the Fifth Amendment, and at the same time to hold that
implicated by fear of prosecution in another jurisdiction. But after Barron and
before the era of Fourteenth Amendment incorporation, that would have been
an unlikely doctrinal combination, and no such improbable development
occurred.
The precursors of to day's case were those raising the question of the
significance for the federal privilege of possible use of testimony in state
prosecution. Only a handful of early cases even touched on the problem. In
Brown v. Walker, 161 U. S. 591 (1896), a witness raised the issue, claiming
the privilege in a federal proceeding based on his fear of prosecution by a
State, but we found that a statute under which immunity from federal
prosecution had been conferred provided for immunity from state prosecution
as well, obviating any need to reach the issue raised. Id., at 606-608. In Jack
v. Kansas, 199 U. S. 372 (1905), a Fourteenth Amendment case, we affirmed
a sentence for contempt imposed on a witness in a state proceeding who had
received immunity from state prosecution but refused to answer questions
based on a fear that they would subject him to federal prosecution. Although
there was no reasonable fear of a prosecution by the National Government in
that
676
case, we addressed the question whether a self-incrimination privilege could
be invoked in the one jurisdiction based on fear of prosecution by the other,
saying that "[w]e think the legal immunity is in regard to a prosecution in the
same jurisdiction, and when that is fully given it is enough." Id., at 382. A
year later, in the course of considering whether a federal witness, immunized
from federal prosecution, could invoke the privilege based on fear of state
212
prosecution, we adopted the general proposition that "the possibility that
information given by the witness might be used" by the other government is,
as a matter of law, "a danger so unsubstantial and remote" that it fails to
trigger the right to invoke the privilege. Hale v. Henkel, 201 U. S. 43, 69
(1906).
"[I]f the argument were a sound one it might be carried still further and held
to apply not only to state prosecutions within the same jurisdiction, but to
prosecutions under the criminal laws of other States to which the witness
might have subjected himself. The question has been fully considered in
England, and the conclusion reached by the courts of that country [is] that the
only danger to be considered is one arising within the same jurisdiction and
under the same sovereignty. Queen v. Boyes, 1 B. & S. 311[, 121 Eng. Rep.
730]; King of the Two Sicilies v. Willcox, 7 State Trials (N. S.), 1049, 1068;
State v. March, 1 Jones (N. Car.), 526; State v. Thomas, 98 N. Car. 599." Ibid.
A holding to this effect came when United States v. Murdock, 284 U. S. 141
(1931), "definitely settled" the question whether in a federal proceeding the
privilege applied on account of fear of state prosecution, concluding "that one
under examination in a federal tribunal could not refuse to answer on account
of probable incrimination under state law." United States v. Murdock, 290 U.
S. 389, 396 (1933).
"The English rule of evidence against compulsory selfincrimination, on
which historically that contained in
677
the Fifth Amendment rests, does not protect witnesses against disclosing
offenses in violation of the laws of another country. King of the Two Sicilies
v. Willcox, 7 State Trials (N. S.) 1049, 1068. Queen v. Boyes, 1 B. & S., at
330[, 121 Eng. Rep., at 738]. This court has held that immunity against state
prosecution is not essential to the validity of federal statutes declaring that a
witness shall not be excused from giving evidence on the ground that it will
incriminate him, and also that the lack of state power to give witnesses
protection against federal prosecution does not defeat a state immunity
statute. The principle established is that full and complete immunity against
prosecution by the government compelling the witness to answer is
equivalent to the protection furnished by the rule against compulsory self-
incrimination. Counselman v. Hitchcock, 142 U. S. 547. Brown v. Walker,
161 U. S. 591, 606. Jack v. Kansas, 199 U. S. 372, 381. Hale v. Henkel, 201
U. S. 43, 68. As appellee at the hearing did not invoke protection against
federal prosecution, his plea is without merit and the government's demurrer
should have been sustained." Murdock, 284 U. S., at 149.
Murdock's resolution of the question received a subsequent complement
when we affirmed again that a State could compel a witness to give testimony
that might incriminate him under federal law, see Knapp v. Schweitzer, 357
U. S. 371 (1958), overruled by Murphy v. Waterfront Comm'n of N. Y.
Harbor, 378 U. S. 52 (1964), testimony that we had previously held to be
admissible into evidence in the federal courts, see Feldman v. United States,
322 U. S. 487 (1944), overruled by Murphy, supra, at 80.
B
It has been suggested here that our precedent addressing fear of prosecution
by a government other than the compelling authority fails to reflect the
Murdock rule uniformly.
678
In 1927 (prior to our decision in Murdock), in a case involving a request for
habeas relief from a deportation order, we declined to resolve whether "the
Fifth Amendment guarantees immunity from self-incrimination under state
statutes." United States ex rel. Vajtauer v. Commissioner of Immigration, 273
U. S. 103, 113 (1927). Although we found that the witness had waived his
claim to the privilege, our decision might be read to suggest that there was
some tension between the reasoning of two of the cases discussed above, Hale
v. Henkel and Brown v. Walker, and the analyses contained in two others,
United States v. Saline Bank of Va., 1 Pet. 100 (1828), and BaUmann v.
Fagin, 200 U. S. 186 (1906). 273 U. S., at 113. These last two cases have in
fact been cited here for the claim that prior to due process incorporation, the
privilege could be asserted in a federal proceeding based on fear of
prosecution by a State.6 Saline Bank and BaUmann are not, however,
inconsistent with Murdock.
In Saline Bank, we permitted the defendants to refuse discovery sought by
the United States in federal court, where the defendants claimed that their
responses would result in incrimination under the laws of Virginia. "The rule
clearly is, that a party is not bound to make any discovery which would
213
expose him to penalties, and this case falls within it." 1 Pet., at 104. But, for
all the sweep of this statement, the opinion makes no mention of the Fifth
Amendment, and in Hale v. Henkel, we explained that "the prosecution [in
Saline Bank] was under a state law which imposed the penalty, and ... the
Federal court was simply
6 The language in Vajtauer that has been cited in support of this suggestion
says only that our conclusion that the witness waived his claim of privilege
"makes it unnecessary for us to consider the extent to which the Fifth
Amendment guarantees immunity from self-incrimination under state
statutes or whether this case is to be controlled by Hale v. Henkel, 201 U. S.
43; Brown v. Walker, 161 U. S. 591, 608; compare United States v. Saline
Bank, 1 Pet. 100; BaUmann v. Fagin, 200 U. S. 186, 195." 273 U. S., at 113.
679
administering the state law." 201 U. S., at 69. The state law, which addresses
prosecutions brought by the State, suggested the rule that the Saline Bank
Court applied to the case before it; the law provided that "no disclosure made
by any party defendant to such suit in equity, and no books or papers
exhibited by him in answer to the bill, or under the order of the Court, shall
be used as evidence against him in any ... prosecution under this law," quoted
in 1 Pet., at 104. Saline Bank, then, may have turned on a reading of state
statutory law. Cf. McNaughton, Self-Incrimination Under Foreign Law, 45
Va. L. Rev. 1299, 1305-1306 (1959) (suggesting that Saline Bank represents
"an application not of the privilege against self-incrimination ... but of the
principle that equity will not aid a forfeiture"). But see BaUmann, supra, at
195 (Holmes, J.) (suggesting that Saline Bank is a Fifth Amendment case,
though this view was soon repudiated by the Court in Hale, as just noted).
Where Saline Bank is laconic, BaUmann is equivocal.
While Ballmann specifically argued only the danger of incriminating himself
under state law as his basis for invoking the privilege in a federal proceeding,
and we upheld his claim of privilege, our opinion indicates that we concluded
that Ballmann might have had a fear of incrimination under federal law as
well as under state law. While we did suggest, contrary to the Murdock rule,
that Ballmann might have been able to invoke the privilege based on a fear
of state prosecution, the opinion says only that "[o]ne way or the other [due
to the risk of incrimination under federal or state law] we are of opinion that
Ballmann could not be required to produce his cash book if he set up that it
would tend to criminate him." 200 U. S., at 195-196. At its equivocal worst,
BaUmann reigned for only two months. Hale v. Henkel explained that "the
only danger to be considered is one arising within the same jurisdiction and
under the same sovereignty," 201 U. S., at 69, and BaUmann and Saline
680
Bank were later, of course, superseded by Murdock with its unequivocal
holding that prosecution in a state jurisdiction not bound by the Clause is
beyond the purview of the privilege.
C
In 1964, our precedent took a turn away from the unqualified proposition that
fear of prosecution outside the jurisdiction seeking to compel testimony did
not implicate a Fifth or Fourteenth Amendment privilege, as the case might
be. In Murphy v. Waterfront Comm'n of N. Y. Harbor, 378 U. S. 52 (1964),
we reconsidered the converse of the situation in Murdock, whether a witness
in a state proceeding who had been granted immunity from state prosecution
could invoke the privilege based on fear of prosecution on federal charges. In
the course of enquiring into a work stoppage at several New Jersey piers, the
Waterfront Commission of New York Harbor subpoenaed the defendants,
who were given immunity from prosecution under the laws of New Jersey
and New York. When the witnesses persisted in refusing to testify based on
their fear of federal prosecution, they were held in civil contempt, and the
order was affirmed by New Jersey's highest court. In re Application of the
Waterfront Comm'n of N. Y. Harbor, 39 N. J. 436, 449, 189 A. 2d 36, 44
(1963). This Court held the defendants could be forced to testify not because
fear of federal prosecution was irrelevant but because the Self-Incrimination
Clause barred the National Government from using their state testimony or
its fruits to obtain a federal conviction. We explained that "the constitutional
privilege against self-incrimination protects a state witness against
incrimination under federal as well as state law and a federal witness against
incrimination under state as well as federal law." 378 U. S., at 77-78.
Murphy is a case invested with two alternative rationales.
214
Under the first, the result reached in Murphy was undoubtedly correct, given
the decision rendered that very same day in Malloy v. Hogan, 378 U. S. 1
(1964), which applied the
681
doctrine of Fourteenth Amendment due process incorporation to the Self-
Incrimination Clause, so as to bind the States as well as the National
Government to recognize the privilege. Id., at 3. Prior to Malloy, the Court
had refused to impose the privilege against self-incrimination against the
States through the Fourteenth Amendment, see Twining v. New Jersey, 211
U. S. 78 (1908), thus leaving state-court witnesses seeking exemption from
compulsion to testify to their rights under state law, as supplemented by the
Fourteenth Amendment's limitations on coerced confessions. Malloy,
however, established that "[t]he Fourteenth Amendment secures against state
invasion the same privilege that the Fifth Amendment guarantees against
federal infringement-the right of a person to remain silent unless he chooses
to speak in the unfettered exercise of his own will, and to suffer no penalty ...
for such silence." 378 U. S., at 8.
As the Court immediately thereafter said in Murphy, Malloy "necessitate[d]
a reconsideration" of the unqualified Murdock rule that a witness subject to
testimonial compulsion in one jurisdiction, state or federal, could not plead
fear of prosecution in the other. 378 U. S., at 57. After Malloy, the Fifth
Amendment limitation could no longer be seen as framed for one jurisdiction
alone, each jurisdiction having instead become subject to the same claim of
privilege flowing from the one limitation. Since fear of prosecution in the one
jurisdiction bound by the Clause now implicated the very privilege binding
upon the other, the Murphy opinion sensibly recognized that if a witness
could not assert the privilege in such circumstances, the witness could be
"whipsawed into incriminating himself under both state and federal law even
though the constitutional privilege against self-incrimination is applicable to
each." 378 U. S., at 55 (internal quotation marks omitted).7 The whipsawing
was possible owing to a
7 Prior to Murphy, such "whipsawing" efforts had been permissible, but
arguably less outrageous since, as the opinion notes, "either the 'compelling'
government or the 'using' government [was] a State, and, until today,
682
feature unique to the guarantee against self-incrimination among the several
Fifth Amendment privileges. In the absence of waiver, the other such
guarantees are purely and simply binding on the government. But under the
SelfIncrimination Clause, the government has an option to exchange the
stated privilege for an immunity to prosecutorial use of any compelled
inculpatory testimony. Kastigar v. United States, 406 U. S., at 448-449. The
only condition on the government when it decides to offer immunity in place
of the privilege to stay silent is the requirement to provide an immunity as
broad as the privilege itself. Id., at 449. After Malloy had held the privilege
binding on the state jurisdictions as well as the National Government, it
would therefore have been intolerable to allow a prosecutor in one or the other
jurisdiction to eliminate the privilege by offering immunity less complete
than the privilege's dual jurisdictional reach. Murphy accordingly held that a
federal court could not receive testimony compelled by a State in the absence
of a statute effectively providing for federal immunity, and it did this by
imposing an exclusionary rule prohibiting the National Government "from
making any such use of compelled testimony and its fruits," 378 U. S., at 79
(footnote omitted).
This view of Murphy as necessitated by Malloy was adopted in the
subsequent case of Kastigar v. United States, supra, at 456, n. 42
("Reconsideration of the rule that the Fifth Amendment privilege does not
protect a witness in one jurisdiction against being compelled to give
testimony that could be used to convict him in another jurisdiction was made
necessary by the decision in Malloy v. Hogan"). Read this way, Murphy rests
upon the same understanding of the Self- Incrimination Clause that Murdock
recognized and to which the earlier cases had pointed. Although the Clause
serves a variety of interests in one degree or another, see
the States were not deemed fully bound by the privilege against
selfincrimination." 378 U. S., at 57, n. 6.
683
Part IV, infra, at its heart lies the principle that the courts of a government
from which a witness may reasonably fear prosecution may not in fairness
compel the witness to furnish testimonial evidence that may be used to prove
his guilt. After Murphy, the immunity option open to the Executive Branch
could be exercised only on the understanding that the state and federal
215
jurisdictions were as one, with a federally mandated exclusionary rule filling
the space between the limits of state immunity statutes and the scope of the
privilege.8 As so understood, Murphy stands at odds with Balsys's claim.
There is, however, a competing rationale in Murphy, investing the Clause
with a more expansive promise. The Murphy majority opened the door to this
view by rejecting this Court's previous understanding of the English
common-law evidentiary privilege against compelled selfincrimination,
which could have informed the Framers' understanding of the Fifth
Amendment privilege. See, e. g., Murphy, 378 U. S., at 67 (rejecting
Murdock's analysis of the scope of the privilege under English common law).
Having removed what it saw as an unjustified, historically derived
8 Of course, the judicial exclusion of compelled testimony functions as a fail-
safe to ensure that compelled testimony is not admitted in a criminal
proceeding. The general rule requires a grant of immunity prior to the
compelling of any testimony. We have said that the prediction that a court in
a future criminal prosecution would be obligated to protect against the
evidentiary use of compelled testimony is not enough to satisfy the privilege
against compelled self-incrimination. Pillsbury Co. v. Conboy, 459 U. S. 248,
261 (1983). The suggestion that a witness should rely on a subsequent motion
to suppress rather than a prior grant of immunity "would [not] afford adequate
protection. Without something more, [the witness] would be compelled to
surrender the very protection which the privilege is designed to guarantee."
Maness v. Meyers, 419 U. S. 449, 462 (1975) (footnote and internal quotation
marks omitted). This general rule ensures that we do not "let the cat out with
no assurance whatever of putting it back," id., at 463 (internal quotation
marks omitted), and leaves the decision whether to grant immunity to the
Executive in accord with congressional policy, see Pillsbury, supra, at 262.
684
limitation on the privilege, the Murphy Court expressed a comparatively
ambitious conceptualization of personal privacy underlying the Clause, one
capable of supporting, if not demanding, the scope of protection that Balsys
claims. As the Court of Appeals recognized, if we take the Murphy opinion
at face value, the expansive rationale can be claimed quite as legitimately as
the Murdock-Malloy-Kastigar understanding of Murphy's result, and Balsys's
claim accordingly requires us to decide whether Murphy's innovative side is
as sound as its traditional one. We conclude that it is not.
As support for the view that the Court had previously misunderstood the
English rule, Murphy relied, first, on two preconstitutional English cases,
East India Co. v. Campbell, 1 Yes. sen. 246, 27 Eng. Rep. 1010 (Ex. 1749),
and Brownsword v. Edwards, 2 Yes. sen. 243, 28 Eng. Rep. 157 (Ch. 1750),
for the proposition that a witness in an English court was permitted to invoke
the privilege based on fear of prosecution in a foreign jurisdiction. See 378
U. S., at 5859. Neither of these cases is on point as holding that proposition,
however. In East India Co., a defendant before the Court of Exchequer,
seeking to avoid giving an explanation for his possession of certain goods,
claimed the privilege on the ground that his testimony might subject him to a
fine or corporal punishment. The Court of Exchequer found that the
defendant would be punishable in Calcutta, then an English Colony, and said
it would "not oblige one to discover that, which, if he answers in the
affirmative, will subject him to the punishment of a crime." 1 Yes. sen., at
247, 27 Eng. Rep., at 1011. In Brownsword, a defendant before the Court of
Chancery claimed the privilege on the ground that her testimony could render
her liable to prosecution in an English ecclesiastical court. "The general rule,"
the court said, "is that no one is bound to answer so as to subject himself to
punishment, whether that punishment arises by the ecclesiastical law of the
land." 2 Yes. sen., at 245, 28 Eng.
685
Rep., at 158. Although this statement, like its counterpart in East India Co.,
is unqualified, neither case is authority for the proposition that fear of
prosecution in foreign courts implicates the privilege. For in each of these
cases, the judicial system to which the witness's fears related was subject to
the same legislative sovereignty that had created the courts in which the
privilege was claimed.9 In fact, when these cases were decided, and for years
after adoption of the Fifth Amendment, English authority was silent on
whether fear of prosecution by a foreign nation implicated the privilege, and
the Vice-Chancellor so stated in 1851. See King of the Two Sicilies v.
Willcox, 1 Sim. (N. S.) 301, 331, 61 Eng. Rep. 116, 128 (Ch. 1851)
(observing, in the course of an opinion that clearly involved a claim of
privilege based on the fear of prosecution by another sovereign, that there is
an "absence of all authority on the point").
Murphy, in fact, went on to discuss the case last cited, as well as a subsequent
one. The Murphy majority began by acknowledging that King of the Two
216
Sicilies was not authority for attacking this Court's prior view of English law.
378 U. S., at 60. In an opinion by Lord Cranworth, the Court of Chancery
declined to allow defendants to assert the privilege
9 Further, the courts of both jurisdictions, at least in some cases, recognized
the privilege against self-incrimination. East India Co. makes specific
reference to the fact that the witness's testimony might be incriminating under
the laws of Calcutta. 1 Yes. sen., at 247, 27 Eng. Rep., at 1011 ("[T]hat he is
punishable appears from the case of Omichund v. Barker [1 Atk. 21, 26 Eng.
Rep. 15 (1744)], as a jurisdiction is erected in Calcutta for criminal facts").
As of 1726, Calcutta was a "presidency town," which was subject to the civil
jurisdiction of a "mayor's court." The mayor's court followed the English
Rules of Evidence, which would have included the rule against self-
incrimination. 1 Woodroffe & Ameer Ali's Law of Evidence in India 13 (P.
Ramaswami & S. Rajagopalan eds., 11th ed. 1962). The ecclesiastical courts
of England also recognized something akin to the privilege at this time in
some cases. See Helmholz, Origins of the Privilege Against Self-
Incrimination: The Role of the European Ius Commune, 65 N. Y. U. L. Rev.
962, 969-974 (1990) (citing cases heard in ecclesiastical courts in which the
privilege was recognized).
686
based on their fear of prosecution in Sicily, for two reasons. 1 Sim. (N. S.), at
329, 61 Eng. Rep., at 128. The first was the court's belief that the privilege
speaks only to matters that might be criminal under the laws of England: "The
rule relied on by the Defendants, is one which exists merely by virtue of our
own municipal law, and must, I think, have reference, exclusively, to matters
penal by that law: to matters as to which, if disclosed, the Judge would be
able to say, as matter of law, whether it could or could not entail penal
consequences." For the second, the court relied on the unlikelihood that the
defendants would ever leave England and be subject to Sicilian prosecution.
The Murphy majority nonetheless understood this rule to have been
undermined by the subsequent case of United States of America v. McRae, 3
L. R. Ch. 79 (1867). See 378 U. S., at 61. In that suit brought by the United
States against McRae in England to recover funds that he had collected there
as a Confederate agent during the Civil War, the court recognized the
privilege based on McRae's claim that his testimony would incriminate him
in the United States. The court distinguished the litigation then before it from
King of the Two Sicilies, indicating that though it agreed with the general
principles stated by Lord Cranworth, see 3 L. R. Ch., at 84, he had not needed
to lay down the broad proposition that invocation of the privilege was
appropriate only with regard to matters penal under England's own law, see
id., at 85. The court did not say that the privilege could be invoked in any
case involving fear of prosecution under foreign law, however. Instead it
noted two distinctions from King of the Two Sicilies, the first being that the
"presumed ignorance of the Judge as to foreign law" on which King of the
Two Sicilies rested has been "completely removed by the admitted statements
upon the pleadings," 3 L. R. Ch., at 85; the second being that McRae
presented the unusual circumstance that the party seeking to compel the
testimony, the United States, was also the party
687
that would prosecute any crime under its laws that might thereby be revealed,
id., at 87. The court's holding that the privilege could be invoked in such
circumstances does not, however, support a general application of the
privilege in any case in which a witness fears prosecution under foreign law
by a party not before the court. Thus, Murphy went too far in saying that
McRae overruled King of the Two Sicilies.lO See Murphy, 378 U. S., at 71.
What is of more fundamental importance, however, is that even if McRae had
announced a new development in English law going to the heart of King of
the Two Sicilies, it would have been irrelevant to Fifth Amendment
interpretation. The presumed influence of English law on the intentions of the
Framers hardly invests the Framers with clairvoyance, and subsequent
English developments are not attributable to the Framers by some rule of
renvoi. Cf. Brown, 161 U. S., at 600 (citing Cathcart v. Robinson, 5 Pet. 264,
280 (1831)). Since McRae neither stated nor implied any disagreement with
Lord Cranworth's 1857 statement in King of the Two Sicilies that there was
no clear prior authority on the question, the Murphy Court had no authority
showing that Murdock rested on unsound historical assumptions contradicted
by opinions of the English courts.
10 Murphy also cites Heriz v. Riera, 11 Sim. 318, 59 Eng. Rep. 896 (1840),
as support for the claim that the English rule allowed invocation of the
privilege based on fear of prosecution abroad. See 378 U. S., at 63. In that
case two Spanish women brought suit in England alleging that the defendant
had violated a contract that he entered into with their brother and to which
they were entitled to the proceeds as his heirs. The contract provided that the
217
plaintiffs' brother (and they as his heirs) were entitled to a share of the
proceeds from a mercantile contract with the Spanish Government. The
defendant responded that the contract was illegal under the laws of Spain and
hence unenforceable and resisted discovery because his answers might
incriminate him under the Spanish code. The court accepted the defendant's
plea, though it is unclear whether the court ruled on the merits of the plaintiffs'
claim or the self-incrimination issue. See Grant, Federalism and Self-
Incrimination, 5 UCLA L. Rev. 1,2 (1958).
688
In sum, to the extent that the Murphy majority went beyond its response to
Malloy and undercut Murdock's rationale on historical grounds, its reasoning
cannot be accepted now. Long before today, indeed, Murphy's history was
shown to be fatally flawed.ll
11 Murphy, 378 U. S., at 81, n. 1 (Harlan, J., concurring in judgment) ("The
English rule is not clear"); United States v. (Under Seal), 794 F. 2d, at 927
("The Court's scholarship with respect to English law in this regard has been
attacked, see Note, 69 Va. L. Rev. at 893-94 .... We do not enter the dispute
as to whether Murphy represents a correct statement of the English rule at a
particular time because we do not think that the Murphy holding depended
upon the correctness of the Court's understanding of the state of English law
and reliance thereon as the sole basis for decision. Rather, Murphy proceeds
as a logical consequence to the holding in Malloy v. Hogan ... "); Note, Fifth
Amendment Privilege Against Self-Incrimination and Fear of Foreign
Prosecution, 96 Colum. L. Rev. 1940, 1944-1946, 1949, and nn. 79-81 (1996)
("The uncertainty of English law on [the question whether the privilege can
be invoked based on fear of prosecution] casts doubt on the Supreme Court's
holding in Murphy, which was based on the assertion that McRae 'represents
the settled "English rule" regarding self-incrimination under foreign law.'
Indeed, the Murphy Court's reliance on its idea of the 'true' English rule has
been criticized by commentators, and its reading of British law was
essentially overruled by the British Parliament. Murphy's reliance on
mistaken interpretation and application of English law weakens its
precedential value" (footnotes omitted)); Note, The Reach of the Fifth
Amendment Privilege When Domestically Compelled Testimony May Be
Used in a Foreign Country's Court, 69 Va. L. Rev. 875, 893-895 (1983)
("[T]he English rule argument has three fatal flaws. First, the so-called
English rule, decided in 1867, never was the English rule despite
overstatements by several American commentators and the Murphy Court.
British commentators remained uncertain for nearly a century about the
extent to which, if at all, their privilege protected against foreign
incrimination .... Second, the English courts had not decided a case involving
incrimination under the criminal laws of independent foreign sovereigns by
the time our Constitution was framed. The only English cases involving
independent sovereigns were decided more than sixty years later. Thus, even
if the fifth amendment embodied the English common law at the time it was
framed, the privilege did not incorporate any rule concerning foreign
incrimination. Finally, even if the English rule protected against foreign
incrimination, the Supreme Court in Zicarelli indicated that it had not
689
D
Although the Court and JUSTICE BREYER'S dissent differ on details,
including some considerations of policy addressed in Part IV, infra, our basic
disagreement with that dissent turns on three points. First, we start with what
we think is the most probable reading of the Clause in its Fifth Amendment
context, as limiting its principle to concern with prosecution by a sovereign
that is itself bound by the Clause; the dissent instead emphasizes the Clause's
facial breadth as consistent with a broader principle. Second, we rely on the
force of our precedent, notably Murdock, as confirming this same-sovereign
principle, as adapted to reflect the postMalloy requirement of immunity
effective against both sovereigns subject to the one privilege under the
National Constitution; the dissent attributes less force to Murdock, giving
weight to its tension with the Saline Bank language, among other things.
Third, we reject Murphy's restatement of the common-law background and
read none of the common-law cases as authority inconsistent with our
contextual reading of the Clause, later confirmed by precedent such as
Murdock; the dissent finds support in the common-law cases for Murphy's
historical reexamination and the broader reading of the Clause. In the end,
our contextual reading of the Clause, combined with the Murdock holding,
places a burden on any-
formally adopted the rule in Murphy" (footnotes omitted)); Capra, The Fifth
Amendment and the Risk of Foreign Prosecution, N. Y. L. J., Mar. 8, 1991,
p. 3 ("[D]espite Justice Goldberg's assertions in Murphy, it is clear that there
was never a 'true' or uniform English rule .... [T]o the extent that the English
218
rule would be pertinent to the Fifth Amendment privilege, it would have had
to exist at the time the Fifth Amendment was adopted. Yet, as even Justice
Goldberg admitted in Murphy, the English cases involving independent
sovereigns were decided more than 60 years after the Fifth Amendment was
adopted"); see also Law Reform Committee, Sixteenth Report, 1967, Cmnd.
3472, U1, p. 7 (explaining that English common law on the question is not
"wholly consistent").
Murphy's reexamination of history also adopted the illegitimate reading of
Saline Bank, rejected supra, at 678-679.
690
one who contests the basic same-sovereign principle, a burden that only clear,
contrary, preframing common law might carry; since the dissent starts with a
broader reading of the Clause and a less potent view of Murdock, it does not
require Murphy and the common-law cases to satisfy such a burden before
definitively finding that a more expansive principle underlies the Clause.
IV
There remains, at least on the face of the Murphy majority's opinion, a further
invitation to revise the principle of the Clause from what Murdock
recognized. The Murphy majority opens its discussion with a catalog of
"Policies of the Privilege," 378 U. S., at 55 (citations and internal quotation
marks omitted):
"It reflects many of our fundamental values and most noble aspirations: our
unwillingness to subject those suspected of crime to the cruel trilemma of
selfaccusation, perjury or contempt; our preference for an accusatorial rather
than an inquisitorial system of criminal justice; our fear that self-
incriminating statements will be elicited by inhumane treatment and abuses;
our sense of fair play which dictates a fair state-individual balance by
requiring the government to leave the individual alone until good cause is
shown for disturbing him and by requiring the government in its contest with
the individual to shoulder the entire load; our respect for the inviolability of
the human personality and of the right of each individual to a private enclave
where he may lead a private life, our distrust of self-deprecatory statements;
and our realization that the privilege, while sometimes a shelter to the guilty,
is often a protection to the innocent."
Some of the policies listed would seem to point no further than domestic
arrangements and so raise no basis for any privilege looking beyond fear of
domestic prosecution. Oth-
691
ers, however, might suggest a concern broad enough to encompass foreign
prosecutions and accordingly to support a more expansive theory of the
privilege than the Murdock understanding would allow.
The adoption of any such revised theory would, however, necessarily rest on
Murphy's reading of preconstitutional common-law cases as support for (or
at least as opening the door to) the expansive view of the Framers' intent,
which we and the commentators since Murphy have found to be unsupported.
Once the Murphy majority's treatment of the English cases is rejected as an
indication of the meaning intended for the Clause, Murdock must be seen as
precedent at odds with Balsys's claim. That precedent aside, however, we
think there would be sound reasons to stop short of resting an expansion of
the Clause's scope on the highly general statements of policy expressed in the
foregoing quotation from Murphy. While its list does indeed catalog
aspirations furthered by the Clause, its discussion does not even purport to
weigh the host of competing policy concerns that would be raised in a
legitimate reconsideration of the Clause's scope.
A
The most general of Murphy's policy items ostensibly suggesting protection
as comprehensive as that sought by Balsys is listed in the opinion as "the
inviolability of the human personality and ... the right of each individual to a
private enclave where he may lead a private life." 378 U. S., at 55 (internal
quotation marks omitted). Whatever else those terms might cover, protection
of personal inviolability and the privacy of a testimonial enclave would
necessarily seem to include protection against the Government's very
intrusion through involuntary interrogation.12 If in fact
12We are assuming, arguendo, that the intrusion is a subject of the Clause's
protection. See Murphy, 378 U. S., at 57, n. 6; Gecas, 120 F. 3d, at 1462
(Birch, J., dissenting); cf. United States v. Verdugo-Urquidez, 494 U. S. 259,
264 (1990) ("The privilege against self-incrimination guaranteed
219

692
these values were reliable guides to the actual scope of protection under the
Clause, they would be seen to demand a very high degree of protection
indeed: "inviolability" is, after all, an uncompromising term, and we know as
well from Fourth Amendment law as from a layman's common sense that
breaches of privacy are complete at the moment of illicit intrusion, whatever
use mayor may not later be made of their fruits. See United States v. Verdugo-
Urquidez, 494 U. S. 259, 264 (1990) (citing United States v. Calandra, 414
U. S. 338, 354 (1974); United States v. Leon, 468 U. S. 897, 906 (1984)).
The Fifth Amendment tradition, however, offers no such degree of protection.
If the Government is ready to provide the requisite use and derivative use
immunity, see Kastigar, 406 U. S., at 453; see also Lefkowitz v. Turley, 414
U. S. 70, 84 (1973), the protection goes no further: no violation of personality
is recognized and no claim of privilege will availY One might reply that the
choice of the word "inviolability" was just unfortunate; while testimonial
integrity may not be inviolable, it is sufficiently served by requiring the
Government to pay a price in the form of use (and derivative use) immunity
before a refusal to testify will be overruled. But that answer overlooks the
fact that when a witness's response will raise no fear of criminal penalty, there
is no protection for testimonial privacy at all. See United States v. Ward, 448
U. S. 242, 248-255 (1980).
Thus, what we find in practice is not the protection of personal testimonial
inviolability, but a conditional protection of testimonial privacy subject to
basic limits recognized before
by the Fifth Amendment is a fundamental trial right of criminal defendants.
Although conduct by law enforcement officials prior to trial may ultimately
impair that right, a constitutional violation occurs only at trial" (citation
omitted)).
13 The practice of exchanging silence for immunity is unchallenged here and
presumably invulnerable, being apparently as old as the Fifth Amendment
itself. See Kastigar, 406 U. S., at 445, and n. 13.
693
the framing 14 and refined through immunity doctrine in the intervening
years. Since the Judiciary could not recognize fear of foreign prosecution and
at the same time preserve the Government's existing rights to seek testimony
in exchange for immunity (because domestic courts could not enforce the
immunity abroad), it follows that extending protection as Balsys requests
would change the balance of private and governmental interests that has
seemingly been accepted for as long as there has been Fifth Amendment
doctrine. The upshot is that accepting personal testimonial integrity or
privacy as a prima facie justification for the development Balsys seeks would
threaten a significant change in the scope of traditional domestic protection;
to the extent, on the other hand, that the domestic tradition is thought worthy
of preservation, an appeal to a general personal testimonial integrity or
privacy is not helpful. See Doe v. United States, 487 U. S. 201, 213, n. 11
(1988) (finding no violation of the privilege "[d]espite the impact upon the
inviolability of the human personality"); Schmerber v. California, 384 U. S.
757, 762 (1966) (holding that a witness cannot rely on the privilege to decline
to provide blood samples); ibid. ("[T]he privilege has never been given the
full scope which the values that it helps to protect suggest").
B
Murphy's policy catalog would provide support, at a rather more concrete
level, for Balsys's argument that application of the privilege in situations like
his would promote the purpose of preventing government overreaching,
which on anyone's view lies at the core of the Clause's purposes. This
argument begins with the premise that "cooperative internationalism" creates
new incentives for the Government to facilitate foreign criminal prosecutions.
Because crime, like legitimate trade, is increasingly international, a
correspond-
14 See n. 13, supra.
694
ing degree of international cooperation is coming to characterize the
enterprise of criminal prosecution.15 The mission of the OS1 as shown in this
case exemplifies the international cooperation that is said to undermine the
legitimacy of treating separate governmental authorities as separate for
purposes of liberty protection in domestic courts. Because the Government
now has a significant interest in seeing individuals convicted abroad for their
220
crimes, it is subject to the same incentive to overreach that has required
application of the privilege in the domestic context. Balsys says that this
argument is nothing more than the reasoning of the Murphy Court when it
justified its recognition of a fear of state prosecution by looking to the
significance of" 'cooperative federalism,'" the teamwork of state and national
officials to fight interstate crime. 378 U. S., at 55-56.
But Balsys invests Murphy's "cooperative federalism" with a significance
unsupported by that opinion. We have already pointed out that Murphy's
expansion upon Murdock is not supported by Murphy's unsound historical
reexamination, but must rest on Murphy's other rationale, under which its
holding is a consequence of Malloy. That latter reading is essential to an
understanding of "cooperative federalism." For the Murphy majority,
"cooperative federalism" was not important standing alone, but simply
because it underscored the significance of the Court's holding that after
Malloy it would be unjustifiably formalistic for a federal court to ignore fear
of state prosecution when ruling on a privilege claim. Thus, the Court
described the "whipsaw" effect that the decision in Malloy would have
created if fear of state prosecution were not cognizable in a federal
proceeding:
"[The] policies and purposes [of the privilege] are defeated when a witness
can be whipsawed into incriminating himself under both state and federal law
15 The Court of Appeals cited a considerable number of studies in the
growing literature on the subject. 119 F.3d 122, 130-131 (CA2 1997).
695
even though the constitutional privilege against selfincrimination is
applicable to each. This has become especially true in our age of 'cooperative
federalism,' where the Federal and State Governments are waging a united
front against many types of criminal activity." 378 U. S., at 55-56 (citation
and internal quotation marks omitted).
Since in this case there is no analog of Malloy, imposing the Fifth
Amendment beyond the National Government, there is no premise in Murphy
for appealing to "cooperative internationalism" by analogy to "cooperative
federalism." 16 Any analogy must, instead, be to the pre-Murphy era when
the States were not bound by the privilege. Then, testimony compelled in a
federal proceeding was admissible in a state prosecution, despite the fact that
shared values and similar criminal statutes of the state and national
jurisdictions presumably furnished incentive for overreaching by the
Government to facilitate criminal prosecutions in the States.
But even if Murphy were authority for considering "cooperative federalism"
and "cooperative internationalism" as reasons supporting expansion of the
scope of the privilege,
16 There is indeed nothing comparable to the Fifth Amendment privilege in
any supranational prohibition against compelled self-incrimination derived
from any source, the privilege being "at best an emerging principle of
international law." See Amann, A Whipsaw Cuts Both Ways, 45 UCLA L.
Rev. 1201, 1259 (1998) (hereinafter Amann).
In the course of discussing the Eleventh Circuit case raising the same issue
as this one, Amann suggests nonetheless that the whipsaw rationale has
particular salience on these facts because along with the United States,
Lithuania and Israel are signatories to the International Covenant on Civil and
Political Rights, Dec. 16, 1966, G. A. Res. 2200, which recognizes something
akin to the privilege. See Amann 1233, n. 206. The significance of being
bound by the Covenant, however, is limited by its provision that the privilege
is derogable and accordingly may be infringed if public emergency
necessitates. Id., at 1259, n. 354. In any event, Balsys has made no claim
under the Covenant, and its current enforceability in the courts of the
signatories is an issue that is not before us.
696
any extension would depend ultimately on an analysis of the likely costs and
benefits of extending the privilege as Balsys requests. If such analysis were
dispositive for us, we would conclude that Balsys has not shown that
extension of the protection would produce a benefit justifying the rule he
seeks.
The Court of Appeals directed careful attention to an evaluation of what
would be gained and lost on Balsys's view. It concluded, for example, that
few domestic cases would be adversely affected by recognizing the privilege
based upon fear of foreign prosecution, 119 F. 3d, at 135-137; 17 that
American contempt sanctions for refusal to testify are so lenient in
221
comparison to the likely consequences of foreign prosecution that a witness
would probably refuse to testify even if the privilege were unavailable to him,
id., at 142 (Block, J., concurring); that by statute and treaty the United States
could limit the occasions on which a reasonable fear of foreign prosecution
could be shown, as by modifying extradition and deportation standards in
cases involving the privilege, id., at 138-139; and that because a witness's
refusal to testify may be used as evidence in a civil proceeding, deportation
of people in Balsys's position would not necessarily be thwarted by
recognizing the privilege as he claims it, id., at 136.
The Court of Appeals accordingly thought the net burden of the expanded
privilege too negligible to justify denying its expansion. We remain skeptical,
however. While we will not attempt to comment on every element of the
Court of Appeals's calculation, two of the points just noted would present
difficulty. First, there is a question about the standard that should govern any
decision to justify a truly discretionary ruling by making the assumption that
it will induce the Government to adopt legislation with international
implications or to seek international agreements, in order to
17The assessment was, of course, necessarily based on experience under the
same-sovereign view of the privilege.
697
mitigate the burdens that the ruling would otherwise impose. Because foreign
relations are specifically committed by the Constitution to the political
branches, Art. II, § 2, cl. 2, we would not make a discretionary judgment
premised on inducing them to adopt policies in relation to other nations
without squarely confronting the propriety of grounding judicial action on
such a premise.
Second, the very assumption that a witness's silence may be used against him
in a deportation or extradition proceeding due to its civil nature, 119 F. 3d, at
136 (citing LopezMendoza, 468 U. S., at 1038-1039), raises serious questions
about the likely gain from recognizing fear of foreign prosecution. For if a
witness claiming the privilege ended up in a foreign jurisdiction that, for
whatever reason, recognized no privilege under its criminal law, the
recognition of the privilege in the American courts would have gained
nothing for the witness. This possibility, of course, presents a sharp contrast
with the consequences of recognizing the privilege based on fear of domestic
prosecution. If testimony is compelled, Murphy itself illustrates that domestic
courts are not even wholly dependent on immunity statutes to see that no use
will be made against the witness; the exclusionary principle will guarantee
that. See Murphy, 378 U. S., at 79. Whatever the cost to the Government may
be, the benefit to the individual is not in doubt in a domestic proceeding.
Since the likely gain to the witness fearing foreign prosecution is thus
uncertain, the countervailing uncertainty about the loss of testimony to the
United States cannot be dismissed as comparatively unimportant. That some
testimony will be lost is highly probable, since the United States will not be
able to guarantee immunity if testimony is compelled (absent some sort of
cooperative international arrangement that we cannot assume will occur).
While the Court of Appeals is doubtless correct that the expected
consequences of some foreign prosecutions may be so severe that a witness
will refuse to testify no matter what, not
698
every foreign prosecution may measure up so harshly as against the
expectable domestic consequences of contempt for refusing to testify. We
therefore must suppose that on Balsys's view some evidence will in fact be
lost to the domestic courts, and we are accordingly unable to dismiss the
position of the United States in this case, that domestic law enforcement
would suffer serious consequences if fear of foreign prosecution were
recognized as sufficient to invoke the privilege.
In sum, the most we would feel able to conclude about the net result of the
benefits and burdens that would follow from Balsys's view would be a Scotch
verdict. If, then, precedent for the traditional view of the scope of the Clause
were not dispositive of the issue before us, if extending the scope of the
privilege were open to consideration, we still would not find that Balsys had
shown that recognizing his claim would be a sound resolution of the
competing interests involved.
v
This is not to say that cooperative conduct between the United States and
foreign nations could not develop to a point at which a claim could be made
for recognizing fear of foreign prosecution under the Self-Incrimination
Clause as traditionally understood. If it could be said that the United States
222
and its allies had enacted substantially similar criminal codes aimed at
prosecuting offenses of international character, and if it could be shown that
the United States was granting immunity from domestic prosecution for the
purpose of obtaining evidence to be delivered to other nations as prosecutors
of a crime common to both countries, then an argument could be made that
the Fifth Amendment should apply based on fear of foreign prosecution
simply because that prosecution was not fairly characterized as distinctly
"foreign." The point would be that the prosecution was as much on behalf of
the United States as of the prosecuting nation, so that the division of labor
between evidence gath-
699
erer and prosecutor made one nation the agent of the other, rendering fear of
foreign prosecution tantamount to fear of a criminal case brought by the
Government itself.
Whether such an argument should be sustained may be left at the least for
another day, since its premises do not fit this case. It is true that Balsys has
shown that the United States has assumed an interest in foreign prosecution,
as demonstrated by OS1's mandate 18 and American treaty agreements 19
requiring the Government to give to Lithuania and Israel any evidence
provided by Balsys. But this interest does not rise to the level of cooperative
prosecution. There is no system of complementary substantive offenses
18 According to Order No. 851-79, reprinted in App. 15-17, the OSI shall
"[m]aintain liaison with foreign prosecution, investigation and intelligence
offices; [u]se appropriate Government agency resources and personnel for
investigations, guidance, information, and analysis; and [d]irect and
coordinate the investigation, prosecution, and any other legal actions
instituted in these cases with the Immigration and Naturalization Service, the
Federal Bureau of Investigation, the United States Attorneys Offices, and
other relevant Federal agencies."
19 The United States and Lithuania have entered into an agreement that
provides that the two governments "agree to cooperate in prosecution of
persons who are alleged to have committed war crimes ... agree to provide
mutual legal assistance concerning the prosecution of persons suspected of
having committed war crimes ... will assist each other in the location of
witnesses believed to possess relevant information about criminal actions ...
during World War II, and agree to intermediate and endeavor to make these
witnesses available for the purpose of giving testimony in accordance with
the laws of the Republic of Lithuania to authorized representatives of the
United States Department of Justice." Memorandum of Understanding
Between the United States Department of Justice and the Office of the
Procurator General of the Republic of Lithuania Concerning Cooperation in
the Pursuit of War Criminals, Aug. 3, 1992, reprinted in App. in No. 96-6144
(CA2), pp. 396-397.
The District Court found that though it had not been made aware of a treaty
between the United States and Israel requiring disclosure of information
related to war crimes, OSI had shared such information in the past and that it
would be consistent with OSI's mandate from the Attorney General for OSI
to do so again. 918 F. Supp. 588, 596 (EDNY 1996).
700
at issue here, and the mere support of one nation for the prosecutorial efforts
of another does not transform the prosecution of the one into the prosecution
of the other. Cf. Bartkus v. Illinois, 359 U. S. 121, 122-124 (1959) (rejecting
double jeopardy claim where federal officials turned over all evidence they
had gathered in connection with federal prosecution of defendant for use in
subsequent state prosecution of defendant). In this case there is no basis for
concluding that the privilege will lose its meaning without a rule precluding
compelled testimony when there is a real and substantial risk that such
testimony will be used in a criminal prosecution abroad.
***
Accordingly, the judgment of the Court of Appeals is reversed, and the case
is remanded for further proceedings consistent with this opinion.
It is so ordered.
JUSTICE STEVENS, concurring.
While I join the Court's opinion without reservation, I write separately to
emphasize these points.
223
The Clause that protects every person from being "compelled in any criminal
case to be a witness against himself" is a part of the broader protection
afforded by the Fifth Amendment to the Constitution. That Amendment
constrains the power of the Federal Government to deprive any person "of
life, liberty, or property, without due process of law," just as the Fourteenth
Amendment imposes comparable constraints on the power of the States. The
primary office of the Clause at issue in this case is to afford protection to
persons whose liberty has been placed in jeopardy in an American tribunal.
The Court's holding today will not have any adverse impact on the fairness
of American criminal trials.
The fact that the issue in this case has been undecided for such a long period
of time suggests that our ruling will have
701
little, if any, impact on the fairness of trials conducted in other countries.
Whether or not that suggestion is accurate, I do not believe our Bill of Rights
was intended to have any effect on the conduct of foreign proceedings. If,
however, we were to accept respondent's interpretation of the Clause, we
would confer power on foreign governments to impair the administration of
justice in this country. A law enacted by a foreign power making it a crime
for one of its citizens to testify in an American proceeding against another
citizen of that country would immunize those citizens from being compelled
to testify in our courts. Variants of such a hypothetical law are already in
existence. See Societe Nationale Industrielle Aerospatiale v. United States
Dist. Court for Southern Dist. of Iowa, 482 U. S. 522, 526, n. 6 (1987); see
also id., at 544-545, n. 29. Of course, the Court might craft exceptions for
such foreign criminal laws, but it seems far wiser to adhere to a clear
limitation on the coverage of the Fifth Amendment, including its privilege
against self-incrimination. That Amendment prescribes rules of conduct that
must attend any deprivation of life, liberty, or property in our Nation's courts.
JUSTICE GINSBURG, dissenting.
The privilege against self-incrimination, "closely linked historically with the
abolition of torture," is properly regarded as a "landmar[k] in man's struggle
to make himself civilized." E. Griswold, The Fifth Amendment Today 7
(1955); see id., at 8 (Fifth Amendment expresses "one of the fundamental
decencies in the relation we have developed between government and man").
In my view, the Fifth Amendment privilege against self-incrimination
prescribes a rule of conduct generally to be followed by our Nation's
officialdom. It counsels officers of the United States (and of any State of the
United States) against extracting testimony when the person examined
reasonably fears that his words would be used against him in a later criminal
prosecution.
702
As a restraint on compelling a person to bear witness against himself, the
Amendment ordinarily should command the respect of United States
interrogators, whether the prosecution reasonably feared by the examinee is
domestic or foreign. Cf. DKT Memorial Fund Ltd. v. Agency for
International Development, 887 F.2d 275, 307-308 (CADC 1989) (R. B.
Ginsburg, J., concurring in part and dissenting in part) ("just as our flag
carries its message ... both at home and abroad, so does our Constitution and
the values it expresses") (citation and internal quotation marks omitted);
United States v. Tiede, 86 F. R. D. 227 (u. S. Court for Berlin 1979) (foreign
national accused of hijacking Polish aircraft abroad was tried under German
substantive law in Berlin in a court created by United States; U. S. court held
foreign national entitled to jury trial as a matter of constitutional right). On
this understanding of the "fundamental decenc[y]" the Fifth Amendment
embodies, "its expression of our view of civilized governmental conduct,"
Griswold, supra, at 8, 9, I join JUSTICE BREYER'S dissenting opinion.
JUSTICE BREYER, with whom JUSTICE GINSBURG joins, dissenting.
Were Aloyzas Balsys to face even a theoretical possibility that his testimony
could lead a State to prosecute him for murder, the Fifth Amendment would
prohibit the Federal Government from compelling that testimony. The Court
concludes, however, that the Fifth Amendment does not prohibit compulsion
here because Balsys faces a real and substantial danger of prosecution not,
say, by California, but by a foreign nation. The Fifth Amendment, however,
provides that "[n]o person ... shall be compelled in any criminal case to be a
witness against himself." U. S. Const., Amdt. 5 (emphasis added). This Court
has not read the words "any criminal case" to limit application of the Clause
to only federal criminal cases. See Murphy v. Waterfront Comm'n of N. Y.
Harbor, 378 U. S. 52 (1964). That precedent, as well
703
224

as the basic principles underlying the privilege, convince me that the Fifth
Amendment's privilege against selfincrimination should encompass not only
feared domestic prosecutions, but also feared foreign prosecutions where the
danger of an actual foreign prosecution is substantial.
I every threat of a foreign prosecution is a reasonable threat. But where there
I begin with a point that focuses upon precedent setting forth the current
understanding of the scope of the word "any," and that reveals the basic
difference between the majority's view of the privilege and the view this
Court has previously taken and should continue to take. The majority focuses
upon one case, Murphy v. Waterfront Comm'n of N. Y. Harbor, supra, which
itself discusses much historically relevant precedent. And the majority's focus
upon that one case is appropriate.
Murphy holds that "the constitutional privilege against self-incrimination
protects ... a federal witness against in-crimination under state ... law." Id., at
77-78. As I read Murphy, the Court thought this conclusion flowed naturally
from its basic understanding of the scope of the Fifth Amendment privilege.
On that understanding, the privilege prohibits federal courts (and state courts
through the Fourteenth Amendment) from compelling a witness to furnish
testimonial evidence that may be used to prove his guilt if that witness may
reasonably fear criminal prosecution. See id., at 60-63 (discussing the English
cases, King of Two Sicilies v. Willcox, 1 Sim. (N. S.) 301, 61 Eng. Rep. 116
(Ch. 1851), and United States of America v. McRae, 3 L. R. Ch. 79 (1867),
as ones that, if rightly understood, embody that proposition of law).
The privilege, understood in this way, requires the abolition of any "same
sovereign" rule. It is often reasonable for a federal witness to fear state
prosecution, and vice versa. Indeed, where testimony may incriminate and
immunity has not been granted, it is so reasonable that one can say, as a
704
matter of law, that the privilege applies, across jurisdictions, to the entire class
of cases involving federal witnesses who fear state prosecutions and also to
the entire class of cases involving state witnesses who fear federal
prosecutions. See Murphy, supra, at 77-78. Thus, the Fifth Amendment (or
the Fourteenth Amendment) automatically prohibits compelled testimony in
any such cross-jurisdictional circumstance.
If I am right about how Murphy should be understood, then that case directs
the application of the privilege in this one. That is because the only difference
between Murphy and this case is that one cannot say, as a matter of law, that
is such a reasonable threat-where the threat is "real and substantial," Zicarelli
v. New Jersey Comm'n of Investigation, 406 U. S. 472, 478 (1972)-the
privilege, as Murphy understands it, would apply.
A
The majority says that one can read Murphy as embodying a very different
rationale, a rationale that turns upon considerations of federalism-the need to
consider "state and federal jurisdictions ... as one" for purposes of applying
the privilege. Ante, at 683. It reads Murphy as a case that sees at the heart of
the Clause
"the principle that the courts of a government from which a witness may
reasonably fear prosecution may not in fairness compel the witness to furnish
testimonial evidence that may be used to prove his guilt." Ante, at 683
(emphasis added).
I have underscored the key words "from which." It is these words that tie the
Clause to prosecutions by the same sovereign.
But what is the evidence that Murphy put any legal weight at all upon those
underscored words? What reason
705
has the majority to believe that Murphy subscribes to, or depends in any way
upon, this phrasing of the privilege's "principle" rather than upon the critically
different "principle" I suggested above, i. e., the principle that "courts may
not in fairness compel a witness who reasonably fears prosecution to furnish
testimony that may be used to prove his guilt?"
The majority points to two relevant Murphy statements.
225
In the first, Murphy said that Malloy v. Hogan, 378 U. S. 1 (1964), which
incorporated the Fifth Amendment privilege as part of the Fourteenth
Amendment's Due Process Clause, "necessitates a reconsideration" of United
States v. Murdock, 284 U. S. 141 (1931), which had held that the Fifth
Amendment protected an individual only from prosecutions by the Federal
Government. Murphy, 378 U. S., at 57. In the second, Murphy mentioned, as
one of many items of support for its analysis, that most Fifth Amendment
policies are defeated
"when a witness 'can be whipsawed into incriminating himself under both
state and federal law even though' the constitutional privilege against self-
incrimination is applicable to each." Id., at 55 (quoting Knapp v. Schweitzer,
357 U. S. 371, 385 (1958) (Black, J., dissenting) ).
Since the first statement mentions only a reason for reconsidering Murdock,
since the second offers support on either analysis, and since neither refers to
any "alternative rational[e]" for decision, ante, at 680, the majority's evidence
for its reinterpretation of Murphy seems rather skimpy.
Now consider the reasons for believing that Murphy rests upon a different
rationale-a rationale that, by focusing upon the basic nature and history of the
underlying right, rejects Murdock's "same sovereign" rule. First, Murphy
holds that the "constitutional privilege" itself, not that privilege together with
principles of federalism, "protects ... a federal
706
witness against incrimination under state ... law." Murphy, supra, at 78.
Second, it says explicitly that it "reject[s]" the Murdock rule, not because of
considerations of federalism arising out of Malloy, but because it is
"unsupported by history or policy" and represents a "deviation" from a
"correct ... construction" of the privilege in light of its "history, policies and
purposes." Murphy, supra, at 77. Third, about half of the opinion consists of
an effort to demonstrate that the privilege, as understood by the English courts
and by American courts prior to Murdock, protected individuals from
compelled testimony in the face of a realistic threat of prosecution by any
sovereign, not simply by the same sovereign that compelled the testimony.
See Murphy, 378 U. S., at 58-70. Fourth, the rest of the Court's analysis
consists of a discussion of the purposes of the privilege, which, in the Court's
view, lead to a similar conclusion. See id., at 55-56. Fifth, the Court explicitly
rejects the analysis of commentators who argued for a "same sovereign" rule
on the ground that their understanding of the privilege's purposes was
incomplete. See id., at 56-57, n. 5 (rejecting 8 J. Wigmore, Evidence §2258,
p. 345 (McNaughton rev. 1961)). Sixth, the Court nowhere describes its
rationale in "silver platter" or similar terms that could lead one to conclude
that its rule is prophylactic, enforcement based, or rests upon any rationale
other than that the privilege is not limited to protection against prosecution
by the same jurisdiction that compels the testimony. Cf. 378 U. S., at 80-81
(Harlan, J., concurring in judgment).
Consequently, I believe one must read Murphy as standing for the proposition
that the privilege includes protection against being compelled to testify by the
Federal Government where that testimony might be used in a criminal
prosecution conducted by another sovereign. And the question the Court must
consequently face is whether we should reject the rationale of that case when
we answer the ques-
707
tion presented here. In other words, we must ask not, "what did Murphy
hold," but "was Murphy right?"
B
Since Murphy is prevailing law, the majority bears the burden of showing
that Murphy is wrong; and the majority says that Murphy's reasoning is
"fatally flawed" and legally "unsound." Ante, at 687-688. But it is not.
Murphy's reasoning finds in Malloy's holding (that the privilege binds the
States) a need to reexamine the "same sovereign" rule, first set forth in the
earlier case of Murdock. Without reexamination, Murdock's rule would have
permitted State and Federal Governments each to have compelled testimony
for use by the other. Murphy's reasoning then finds the "same sovereign" rule
unsound as a matter of history and of the basic purposes of the privilege.
Murphy's use of legal history is traditional. It notes that Murdock rested its
own conclusion upon earlier English and American cases. It reads the
language of those cases in light of the reasons that underlie it. It says that, so
read, those cases did not stand for a "same sovereign" rule, but suggested the
contrary. And it concludes that Murdock's legal pedigree is suspicious or
illegitimate. In a word, Murphy examines Murdock's historical pedigree very
226
much the way that the majority today analyzes that of Murphy. The
difference, however, is that Murphy makes a better case for overturning its
predecessor than does the majority.
I can reiterate the essence of Murphy's analysis, amending it to fit the present
case, roughly as follows:
1. Murdock thought that English law embodied a "same sovereign" rule, but
it did not. Two early English cases, one decided in 1749 and the other in 1750,
held that the privilege applied even though the feared prosecution was, in the
one case, in Calcutta, and in the other, by ecclesiastical authorities. East India
Co. v.
708
Campbell, 1 Yes. sen. 246, 27 Eng. Rep. 1010 (Ex. 1749); Brownsword v.
Edwards, 2 Yes. sen. 243, 28 Eng. Rep. 157 (Ch. 1750). Those cases said
nothing about whether or not the law of Calcutta, church law, and English
law all emanate from a single sovereign. But Murdock had cited a famous
later English case, King of Two Sicilies v. Willcox, 1 Sim. (N. S.) 301, 61
Eng. Rep. 116 (Ch. 1851), as standing for the "same sovereign" principle.
It is true that one of the English judges in that case, Lord Cranworth, said that
the privilege involves only "matters [made] penal by [English] ... law." Id., at
329, 61 Eng. Rep., at 128. But Lord Cranworth immediately qualified that
conclusion by restating the conclusion in terms of its rationale, namely, that
the privilege applies "to matters as to which, if disclosed, the Judge would be
able to say, as matter of law, whether it could or could not entail penal
consequences." Ibid. And, 16 years later, the English courts sustained a claim
of privilege involving a threatened forfeiture in America. United States of
America v. McRae, 3 L. R. Ch. 79 (1867). In doing so, the McRae court said
both that Lord Cranworth's statement in King of the Two Sicilies "la[id] down
... a proposition" that was "broad[er]" than necessary to "support the
judgment," and that the true reason the privilege had not applied in the earlier
case was because the judge did not "know ... with certainty ... the [foreign
law, hence] whether the acts ... had rendered [the defendants] amenable to
punishment" and "it was doubtful whether the Defendants would ever be
within the reach of a prosecution, and their being so depended on their
voluntary return to [Sicily]." United States of America v. McRae, supra, at
85,87.
Thus, the true English rule as of the time of Murdock, insofar as any of these
cases reveal that rule, was not a "same sovereign" rule, but a rule that the
privilege did not apply to prosecutions by another sovereign where
709
the danger of any such prosecution was speculative or insubstantial. Cf.
Queen v. Boyes, 1 B. & S. 311, 330, 121 Eng. Rep. 730, 738 (Q. B. 1861)
("[T]he danger to be apprehended must be real and appreciable ... not a danger
of an imaginary and unsubstantial character").
Where is Murphy's error?
2. Murdock thought that earlier American cases required a "same sovereign"
rule, but they did not. To the contrary: Chief Justice Marshall, in United States
v. Saline Bank of Va., 1 Pet. 100 (1828), wrote that "a party is not bound to
make any discovery which would expose him to penalties." Id., at 104. Justice
Holmes later cited this case as authority for the proposition that the Fifth
Amendment privilege "exonerated" a federal witness "from [making]
disclosures which would have exposed him to the penalties of the state law."
BaUmann v. Fagin, 200 U. S. 186, 195 (1906). Lower federal courts,
consistent with the English rule, had held that a witness could refuse to
answer questions based on the danger of incrimination in another jurisdiction.
See, e. g., In re Hess, 134 F.1d 9, 112 (ED Pa. 1905); In re Graham, 10 F.
Cas. 913, 914 (No. 5,659) (SDNY 1876). True, the Court had written in dicta
that "[w]e think the legal immunity is in regard to a prosecution in the same
jurisdiction, and when that is fully given it is enough." Jack v. Kansas, 199
U. S. 372, 382 (1905). But that unexplained dicta, which a later case linked
to a (misunderstood) English rule, see Hale v. Henkel, 201 U. S. 43, 68-69
(1906), provides an insufficient historical basis for Murdock's summary
conclusion, particularly since the Court, immediately prior to Murdock, had
indicated that the question remained open. See United States ex rel. Vajtauer
v. Commissioner of Immigration, 273 U. S. 103 (1927) (reserving question;
citing Saline Bank and BaUmann v. Fagin).
710
Again, where is Murphy's error?
227
Stated in this minimal way, Murphy's historical analysis is difficult to attack.
One can, of course, always point to special features of a case and thereby
distinguish it. In respect to the mid-18th-century English cases, one can point
out that Calcutta and the church may not have been completely separate
"sovereigns." Ante, at 685. And Saline Bank might have involved application
by the federal court of a state law that, without the help of the Fifth
Amendment, protected a party from self-incrimination. But see Saline Bank,
supra, at 103 (citing Virginia privilege statute which, by its terms, applied to
suit by the state "Attorney General" in the state "Superior Court of Chancery
for the district of Richmond" for recovery of a bank's capital stock "in behalf
of the Commonwealth"). But this kind of criticism is beside the point. The
English judges made no point of the former. See ante, at 685 (statements
about the privilege in these cases were "unqualified"). It does not denigrate
their learning to suggest that they did not articulate the precise
sovereigntyrelated status of ecclesiastical courts or of Calcutta's criminal law
in 1749. Nor did Justice Holmes make any point of the latter. See BaUmann
v. Fagin, supra, at 195. As for the suggestion that it is illegitimate to consider
the later English authorities in construing the privilege, see ante, at 687, one
would think that, on this view, Murdock is at least as vulnerable as Murphy.
Most importantly, neither the majority today, nor the authorities it cites, see
ante, at 688-689, n. 11, shows that the key historical points upon which
Murphy relied are clearly wrong. At worst, Murphy represents one possible
reading of a history that is itself unclear. Murphy's main criticisms of
Murdock are reasonable ones. Its reading of earlier cases, insofar as they were
relevant to its criticism of Murdock, was plausible then, see Grant,
Federalism and SelfIncrimination, 4 UCLA L. Rev. 549, 562 (1957)
(Murdock "illustrates the danger of copying one's precedents directly
711
from the brief of counsel"); and it is plausible now. That minimalist
conclusion is sufficient for present purposes. Even if Murdock's 3-sentence,
and Murphy's 20-page, historical analyses were equally plausible, we would
need something more to abandon Murphy, for it is the most recent, and
thereby governing, precedent.
Nor can I find any other reason for rejecting Murphy and, thereby,
resurrecting Murdock. The Fifth Amendment's language permits Murphy's
construction, for it says "any criminal case." The history of the Amendment's
enactment simply does not answer the question about whether or not it
applied where there is a substantial danger of prosecution in another
jurisdiction. See United States v. Gecas, 120 F.3d 1419, 1435 (CAll 1997)
(en bane) (Fifth Amendment privilege "has virtually no legislative history");
Moglen, Taking the Fifth: Reconsidering the Origins of the Constitutional
Privilege Against Self-Incrimination, 92 Mich. L. Rev. 1086, 1123 (1994)
(Fifth Amendment's legislative history "adds little to our understanding of the
history of the privilege"). It is possible that the language, "in any criminal
case," was aimed at limiting protection to compelled testimony against penal
interests, a reading consistent with the Court's contemporary understanding
of the Clause. See, e. g., United States v. Ward, 448 U. S. 242, 248-255 (1980)
(rejecting claim to privilege based on fear of civil penalty, in part, because
Clause "is expressly limited to 'any criminal case' "); 5 The Founders'
Constitution 262 (P. Kurland & R. Lerner eds. 1987) (indicating that phrase
"in any criminal case" was proposed by Representative Lawrence to ensure
that the Clause was not "in some degree contrary to laws passed"). And it is
also possible that the language was intended to limit the proceedings in which
the privilege could be claimed to criminal cases, which understanding the
Court rejected long ago. See McCarthy v. Arndstein, 266 U. S. 34, 40 (1924)
(The privilege "applies alike to civil and criminal proceedings, wherever the
answer might tend to subject to criminal responsi-
712
bility him who gives it"). Neither of these readings is any more speculative,
as a textual or historical matter, than reading the Clause as the majority does,
against its text, to restrict the universe of feared prosecutions upon which
basis the privilege may be asserted.
What is more, there is no suggestion that Murphy's rule, applied to state and
federal prosecutions, "has proven to be intolerable simply in defying practical
workability." Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S.
833, 854 (1992) (citing Swift & Co. v. Wickham, 382 U. S. 111, 116 (1965)).
Nor have the facts, or related principles of law, subsequently changed so
much "as to have robbed the old rule of significant application or
justification." 505 U. S., at 855 (citing Patterson v. McLean Credit Union,
491 U. S. 164, 173-174 (1989), and Burnet v. Coronado Oil & Gas Co., 285
U. S. 393, 412 (1932) (Brandeis, J., dissenting)). Indeed, it was the Murdock
rule's legitimacy that, prior to Murphy, consistently divided the Court. See, e.
g., Irvine v. California, 347 U. S. 128, 139-142 (1954) (Black, J., joined by
228
Douglas, J., dissenting) ("I cannot agree that the [Fifth] Amendment's
guarantee against self-incrimination testimony can be spirited away by the
ingenious contrivance of using federally extorted confessions to convict of
state crimes and vice versa"); Feldman v. United States, 322 U. S. 487, 494-
503 (1944) (Black, J., joined by Douglas and Rutledge, JJ., dissenting).
The conclusion that I draw is that the rationale established through Murphy's
precedent governs. That rationale interprets the privilege as applicable at the
least where a person faces a substantial threat of prosecution in another
jurisdiction. And that reading of the privilege favors Balsys here.
II
Precedent aside, I still disagree with the Court's conclusion. As Murphy said,
and as the Second Circuit reiterated, the Fifth Amendment reflects not one,
but several different
713
purposes. 378 U. S., at 55; 119 F.3d 122, 129 (1997). And whatever the
disagreement about the relative weight to be given each of those purposes or
their historical origins, I believe that these purposes argue in favor of the
Second Circuit's interpretation. Namely, an interpretation that finds the Fifth
Amendment privilege applicable where the threat of a foreign prosecution is
"real and substantial," as it is here. See United States of America v. McRae,
3 L. R. Ch., at 85-87 (distinguishing King of the Two Sicilies v. Willcox, 1
Sim. (N. S.) 301, 61 Eng. Rep. 116 (Ch. 1851), on this ground); cf. Queen v.
Boyes, 1 B. & S., at 330, 121 Eng. Rep., at 738.
A
This Court has often found, for example, that the privilege recognizes the
unseemliness, the insult to human dignity, created when a person must
convict himself out of his own mouth. "At its core, the privilege reflects our
fierce 'unwillingness to subject those suspected of crime to the cruel [choice]
of self-accusation, perjury or contempt.'" Pennsylvania v. Muniz, 496 U. S.
582, 596 (1990) (quoting Doe v. United States, 487 U. S. 201, 212 (1988));
South Dakota v. Neville, 459 U. S. 553, 563 (1983). The privilege can reflect
this value, and help protect against this indignity, even if other considerations
produce only partial protection-protection that can be overcome by other
needs. Cf. MacNair, Early Development of the Privilege Against
SelfIncrimination, 10 Oxford J. Legal Studies 66, 70 (1990) (early
ecclesiastical procedure recognized privilege until an accusation was made
that person had committed an offense); ante, at 692 (observing that the
"protection of personal testimonial inviolability" is not a "reliable guid[e]" to
the "actual scope of protection under the Clause"). And that value is no less
at stake where a foreign, but not a domestic, prosecution is at issue.
This Court has also said that the privilege serves to protect personal privacy,
by discouraging prosecution for crimes
714
of thought. See Muniz, supra, at 595-596 (describing English Star Chamber
"wherein suspects were forced to choose between revealing incriminating
private thoughts and forsaking their oath by committing perjury"); United
States v. Nobles, 422 U. S. 225, 233 (1975) ("The Fifth Amendment privilege
... protects 'a private inner sanctum of individual feeling and thought and
proscribes state intrusion to extract self-condemnation'" (quoting Couch v.
United States, 409 U. S. 322, 327 (1973))). Indeed, some have argued that the
Puritans championed the privilege because, had the 17thcentury state
questioned them about their beliefs, they would have had to answer truthfully
and thus suffer condemnation. See L. Levy, Origins of the Fifth Amendment
134 (1968) ("If [a Puritan] took the oath and lied, he committed the
unpardonable and cardinal sin of perjury which was simply not an option for
a religious man"). This consideration may prove less important today
domestically, for the First Amendment protects against the prosecution of
thought crime. But that fact also provides no reason for denying protection
where the prosecution is foreign.
The Court has said that the privilege reflects, too, "our fear that self-
incriminating statements will be elicited by inhumane treatment and abuses."
Murphy, 378 U. S., at 55. This concern with governmental "overreaching"
would appear implicated as much when the foreseen prosecution is by another
country as when it is by another domestic jurisdiction. Indeed, the analogy to
Murphy's observation about "cooperative federalism," in which State and
Federal Governments wage "a united front against many types of criminal
activity," id., at 56, is a powerful one. That is because, in the 30 years since
Murphy, the United States has dramatically increased its level of cooperation
with foreign governments to combat crime. See generally E. N adelman, Cops
229
Across Borders: The Internationalization of U. S. Criminal Law Enforcement
(1993); Bassiouni, Policy Considerations on Inter-State Cooperation in
Criminal Matters, 4 Pace Y. B.
715
Int'l L. 123 (1992); Zagaris, International Criminal and Enforcement
Cooperation in the Americas in the Wake of Integration, 3 Sw. J. L. & Trade
Am. 1 (1996). The United States has entered into some 20 "mutual legal
assistance treaties" through which it may develop and share evidence with
foreign governments in order to facilitate criminal prosecutions abroad, see
New MLAT Treaties Increase DOJ's Reach, 4 No.7 DOJ Alert 7 (Apr. 18,
1994) (listing and discussing treaties); it has signed more than 50 new
extradition agreements, see 18 U. S. C. § 3181 (1994 ed., Supp. II) (listing
extradition treaties ratified since 1960); Nadelman, Cops Across Borders, at
489-502 (same); it has increased by an order of magnitude the number of law
enforcement offices and personnel located abroad, see id., at 479-486
(cataloging growth in foreign-based law enforcement personnel since 1965);
and it has established a special office" 'for the purpose of centralizing and
giving greater emphasis and visibility to [the Justice Department's]
prosecutorial service functions in the international arena,'" which has led to a
"dramatic increase in the number of extraditions" and an "even greater growth
in the numbers of requests for evidence in criminal cases" since the 1970's,
id., at 402 (discussing DOJ's Office of International Affairs (alterations
omitted)).
Indeed, the United States has a significant stake in the foreign prosecution at
issue here. Congress has passed a deportation law targeted at suspected Nazi
war criminals. See 8 U. S. C. § 1182(a)(3)(E). The Justice Department has
established an agency whose mandate includes the assistance of foreign
governments in the prosecution of those deported. See App. 15-17 (Order No.
851-79, establishing DOJ's Office of Special Investigations). And the United
States has agreed with Lithuania (where Balsys may stand trial) "to cooperate
in prosecution of persons who are alleged to have committed war crimes ...
[and] to provide ... legal assistance concerning [such] prosecution[s]."
Memorandum of Understanding Between United States Department of Jus-
716
tice and Office of Procurator General of the Republic of Lithuania
Concerning Cooperation in the Pursuit of War Criminals, Aug. 3, 1992, App.
in No. 96-6144 (CA2), p. 395. As the Second Circuit reasoned, since the
Federal Government now has a stake in many foreign prosecutions akin to its
stake in state prosecutions, a stake illustrated by this case, the privilege's
purpose of preventing governmental overreaching is served by recognizing
the privilege in the former class of cases, just as it is served in the cases of
"cooperative federalism" identified by Murphy. Indeed, experience suggests
that the possibility of governmental abuses in cases like this one-where the
United States has an admittedly keen interest in the later, foreign prosecution-
is not totally speculative. See, e. g., Demjanjuk v. Petrovsky, 10 F.3d 338
(CA61993).
An additional purpose served by the privilege is "our preference for an
accusatorial rather than an inquisitorial system of criminal justice." Murphy,
supra, at 55. Even if this systemic value speaks to "domestic arrangements"
only, ante, at 690, the investigation of crime is as much a part of our "system"
of criminal justice as is any later criminal prosecution. Reflecting this fact,
the Court has said that the Fifth Amendment affords individuals protection
during the investigation, as well as the trial, of a crime. See Miranda v.
Arizona, 384 U. S. 436 (1966). And the importance we place in our system
of criminal investigation, and the distaste we have for its alternatives, would
stand diminished if an accused were denied the Fifth Amendment's
protections because the criminal case against him, though built in this country
by our Government, was ultimately to be prosecuted in another. This is true
regardless of whether the "Bill of Rights was intended to have any effect on
the conduct of foreign proceedings." Ante, at 701 (STEVENS, J.,
concurring). The Fifth Amendment undeniably "prescribes a rule of conduct
generally to be followed by our Nation's official-
717
dom," ibid. (GINSBURG, J., dissenting), and it is that conduct, not a foreign
proceeding, that is at issue here.
B
If the policies and purposes that this Court has said underlie the Fifth
Amendment-respect for individual dignity and privacy, prevention of
governmental overreaching, preservation of an accusatorial system of
230
criminal justice-would all be well served by applying the privilege when a
witness legitimately fears foreign prosecution, then what reason could there
be for reinterpreting the privilege so as not to recognize it here?
Two reasons have been suggested: First, one might see a government's
compulsion of testimony followed by its own use of that testimony in a
criminal prosecution as somewhat more unfair than compulsion by one
government and use by another. And one might also find the States and the
Federal Government so closely interconnected that the unfairness is further
diminished where the prosecuting sovereign is a foreign country.
But this factor, in my view, cannot be determinative. For one thing, this issue
of fairness is a matter of degree, not kind. For another, changes in
transportation and communication have made relationships among nations
ever closer, to the point where cooperation among international prosecutors
and police forces may be as great today as among the States (or between the
States and the Federal Government) a half century ago. See supra, at 714-715
(discussing rise in international cooperation). Finally, this Court's cases
suggest that the remaining considerations-particularly the inherent indignity
and cruelty to the individual in compelling selfincrimination-bulk larger in
terms of the basic values that the Fifth Amendment reflects than does this
single, partial, fairness consideration. See supra, at 712-713 (citing cases). I
cannot agree that this particular feature-the fact that
718
prosecution by a different sovereign seems not quite as unfair as prosecution
by the same sovereign-could warrant denying the privilege's application.
The second consideration is practical. The majority, as well as the
Government, fear that application of the privilege might unreasonably
interfere with the work of law enforcement. See ante, at 697-698; Brief for
United States 30-36. But in my view, that fear is overstated. After all, "foreign
application" of the privilege would matter only in a case where an individual
could not be prosecuted domestically but the threat of foreign prosecution is
substantial. Cf. Zicarelli, 406 U. S., at 478-481 (declining to reach privilege
claim because witness did not face "real danger" of foreign prosecution). The
Second Circuit points out that there have only been a handful of such cases.
119 F. 3d, at 135 (finding only six cases in the 25 years since Zicarelli). That
is because relatively few witnesses face deportation or extradition, and a
witness who will not "'be forced to enter a country disposed to prosecute
him,'" 119 F. 3d, at 135 (quoting United States v. Gecas, 50 F.3d 1549, 1560
(CA111995), cannot make the showing of "real and substantial" fear that
Zicarelli would require.
Moreover, even where a substantial likelihood of foreign prosecution can be
shown, the Government would only be deprived of testimony that relates to
the foreign crime; the witness would not be entitled to claim a general silence.
See Hoffman v. United States, 341 U. S. 479, 486 (1951) (witness may only
refuse to answer questions that might "in themselves support a conviction" or
"furnish a link in the chain of evidence" for such crime). And nothing would
prevent the Government, in a civil proceeding, from arguing that an adverse
inference should be drawn from the witnesses' silence on particular questions,
see Baxter v. Palmigiano, 425 U. S. 308, 318 (1976), or from supporting that
inference with evidence from other, nonprivileged sources. Thus, without any
adjustment in practice, it would seem that
719
the Government would lose little information, and even fewer cases, were the
privilege recognized here.
In those rare instances where the need for testimony was sufficiently great, a
grant of de facto "immunity" remains a possibility. The Government need
only take steps sufficient to make the threat of foreign prosecution
insubstantial. Thus, a promise by the United States that deportation will not
take place, or that deportation to a different country will ensue, would seem
sufficient. A further promise by the foreign nation that prosecution will not
take place, or will not make use of the elicited testimony, will obviate the
need even for such a deportation promise. And were a foreign sovereign to
later seek extradition of the witness, the Government, under existing law,
might retain the discretion to decline such a request. See 18 U. S. C. § 3186
("Secretary of State may order" extraditable person "delivered to ... foreign
government"); § 3196 (giving Secretary of State discretion whether to
extradite United States citizens provided treaty does not obligate her to do
so).
I do not want to minimize the potential difficulties inherent in providing this
kind of "immunity." It might require a change in domestic law, or in a given
case, an adjustment in an understanding reached with a foreign government.
231
In unusual circumstances, as JUSTICE STEVENS recognizes, see ante, at
701, it might require adjusting the legal rules that express the privilege in
order to prevent a foreign government's efforts to stop its citizens from
testifying in American courts. But I do not see these difficulties as creating
overwhelming obstacles to the legitimate application of the privilege in
instances such as the one present here. Nor do I see these difficulties as
significantly greater than those that inhere in the ordinary grant of immunity,
which also requires legislation, and which also can create friction among
competing jurisdictions. At worst, granting de facto "immunity" in this type
of case would mean more potentially deportable criminal aliens will remain
in the United States, just as to-

720

day's immunity means more potentially imprisonable citizens remain at

liberty. This is a price that the Amendment extracts where government wishes
to compel incriminating testimony; and it is difficult to see why that price
should not be paid where there is a real threat of prosecution, but it is foreign.

***

In sum, I see no reason why the Court should resurrect the pale shadow of
Murdock's "same sovereign" rule, a rule that Murphy demonstrated was
without strong historical foundation and that would serve no more valid a
purpose in to day's world than it did during Murphy's time. Murphy supports
recognizing the privilege where there is a real and substantial threat of
prosecution by a foreign government. Balsys is among the few to have
satisfied this threshold. The basic values that this Court has said underlie the
Fifth Amendment's protections are each diminished if the privilege may not
be claimed here. And surmountable practical concerns should not stand in the
way of constitutional principle.

For these and related reasons elaborated by the Second Circuit, I respectfully
dissent.

232
G.R. No. L-10255 August 6, 1915
THE UNITED STATES, plaintiff-appellant,
vs.
SILVESTRE POMPEYA, defendant-appellee.
Office of the Solicitor-General Corpus for appellant.
Lawrence, Ross and Block for appellee.
JOHNSON, J.:
On the 1st day of June, 1914, the acting prosecuting attorney of the Province
of Iloilo presented the following complaint in the Court of First Instance of
said province: "The undersigned fiscal charges Silvestre Pompeya with
violation of the municipal ordinance of Iloilo, on the subject of patrol duty,
Executive Order No. 1, series of 1914, based on section 40 (m) of the
Municipal Code, in the following manner:
"That on or about March 20 of the current year, 1914, in the jurisdiction of
the municipality of Iloilo, Province of Iloilo, Philippine Islands, the said
accused did willfully, illegally, and criminally and without justifiable motive
fail to render service on patrol duty; an act performed in violation of the law.
"That for this violation the said accused was sentenced by the justice of the
peace of Iloilo to a fine of P2 and payment of the costs of the trial, from which
judgment said accused appealed to the Court of First Instance.".
Upon said complaint the defendant was duly arraigned .Upon arraignment he
presented the following demurrer: "The defendant, through his undersigned
attorneys, demurs to the complaint filed in this case on the ground that the
acts charged therein do not constitute a crime.".
In support of said demurrer, the defendant presented the following argument:
"The municipal ordinance alleged to be violated is unconstitutional because
it is repugnant to the Organic Act of the Philippines, which guarantees the
liberty of the citizens.".
Upon issues thus presented, the Honorable J. s .Powell, judge, on he 22nd day
of August, 1914, after hearing the arguments of the respective parties,
sustained said demurrer and ordered the dismissal of said complaint and the
cancellation of the bond theretofore given, with costs de oficio.
From the order sustaining the demurrer of the lower court, the prosecuting
attorney appealed to this court.
It appears from the demurrer that the defendant claims that the facts stated in
the complaint are not sufficient to constitute a cause of action. In his argument
in support of said demurrer it appears that the real basis of said demurrer was
the fact that the ordinance upon which said complaint was based was
unconstitutional, for the reason that it was contrary to the provisions of the
Philippine Bill which guarantees liberty to the citizens of the Philippine
Islands.
In this court the only question argued by the Attorney-General is whether or
not the ordinance upon which said complaint was based (paragraph "m" of
section 40 of the Municipal Code) which was adopted in accordance with the
provisions of Act No. 1309 is constitutional. Section 40 of Act No. 82 (the
Municipal Code) relates to the power of municipal councils. Act No. 1309
amends said section (section 40, paragraph "m") which reads as follows: "(m)
With the approval of the provincial governor, when a province or
municipality is infested with ladrones or outlaws (the municipal council is
empowered):
"1. To authorize the municipal president to require able-bodied male residents
of the municipality, between the ages of eighteen and fifty years, to assist, for
a period not exceeding five days in any one month, in apprehending ladrones,
robbers, and other lawbreakers and suspicious characters, and to act as patrols
for the protection of the municipality, not exceeding one day in each week.
The failure, refusal, or neglect of any such able-bodied man to render
promptly the service thus required shall be punishable by a fine not exceeding
one hundred pesos or by imprisonment for not more than three months, or by
both such fine and imprisonment, in the discretion of the court: Provided,
That nothing herein contained shall authorize the municipal president to
require such service of officers or men of the Army of Navy of the United
States, civil employees of the United States Government, officers and
employees of the Insular Government, or the officers or servants of
companies or individuals engaged in the business of common carriers on sea
or land, or priests, ministers of the gospel, physicians, practicantes, druggists
233
or practicantes de farmacia, actually engaged in business, or lawyers when
actually engaged in court proceedings.".
Said Act No. 1309 contains some other provisions which are not important in
the consideration of the present case.
The question which we have to consider is whether or not the facts stated in
the complaint are sufficient to show (a) a cause of action under the said law;
and (b) whether or not said law is in violation of the provisions of the
Philippine Bill in depriving citizens of their rights therein guaranteed.
We deem it advisable to consider the second question first.
It becomes important to ascertain the real purpose of said Act (No. 1309) in
order to know whether it covers a subject upon which the United States
Philippine Commission could legislate. A reading of said Act discloses (1)
that it is an amendment of the general law (Act No. 82) for the organization
of municipal government; (2) that it is amendment of section 40 of said Act
No. 82, by adding thereto paragraph "m;" (3) that said section 40 enumerates
some of the powers conferred upon the municipal council; (4) that said
amendment confers upon the council additional powers. The amendment
empowers the municipal council, by ordinance, to authorize the president: (a)
To require able-bodied male residents of the municipality, between the ages
of 18 and 55 [50], to assist, for a period not exceeding five days in any month,
in apprehending ladrones, robbers, and other lawbreakers and suspicious
characters, and to act as patrols for the protection of the municipality, not
exceeding one day each week; (b) To require each householder to report
certain facts, enumerated in said amendment.
The specific purpose of said amendment is to require each able-bodied male
resident of the municipality, between the ages of 18 and 55 [50], as well as
each householder when so required by the president, to assist in the
maintenance of peace and good order in the community, by apprehending
ladrones, etc., as well as by giving information of the existence of such
persons in the locality. The amendment contains a punishment for those who
may be called upon for such service, and who refuse to render the same.
Is there anything in the law, organic or otherwise, in force in the Philippine
Islands, which prohibits the central Government, or any governmental entity
connected therewith, from adopting or enacting rules and regulations for the
maintenance of peace and good government? May not the people be called
upon, when necessary, to assist, in any reasonable way, to rid the state and
each community thereof, of disturbing elements? Do not individuals whose
rights are protected by the Government, owe some duty to such, in protecting
it against lawbreakers, and the disturbers of the quiet and peace? Are the
sacred rights of the individual violated when he is called upon to render
assistance for the protection of his protector, the Government, whether it be
the local or general government? Does the protection of the individual, the
home, and the family, in civilized communities, under established
government, depend solely and alone upon the individual? Does not the
individual owe something to his neighbor, in return for the protection which
the law afford him against encroachment upon his rights, by those who might
be inclined so to do? To answer these questions in the negative would, we
believe, admit that the individual, in organized governments, in civilized
society, where men are governed by law, does not enjoy the protection
afforded to the individual by men in their primitive relations.
If tradition may be relied upon, the primitive man, living in his tribal relations
before the days of constitutions and states, enjoyed the security and assurance
of assistance from his fellows when his quiet and peace were violated by
malhechores. Even under the feudal system, a system of land holdings by the
Teutonic nations of Europe in the eleventh, twelfth, and thirteenth centuries,
the feudal lord exercised the right to call upon all his vassals of a certain age
to assist in the protection of their individual and collective rights. (Book 2,
Cooley's Blackstone's Commentaries, 44; 3 Kent's Commentaries, 487; Hall,
Middle Ages; Maine, Ancient Law; Guizot, history of Civilization; Stubbs'
Constitutional History of England; Chisholm vs. Georgia, 2 Dall .(U. S.), 419;
DePeyster vs. Michael, 6 N. Y., 467.) Each vassal was obliged to render
individual assistance in return for the protection afforded by all.
The feudal system was carried in to Britain by William the Conqueror in the
year 1085 with all of is ancient customs and usages.
we find in the days of the "hundreds," which meant a division of the state
occupied by one hundred free men, the individual was liable to render service
for the protection of all. (Book 3, Cooley's Blackstone's Commentaries, 160,
245, 293, 411.) In these "hundreds" the individual "hundredor," in case of the
commission of a crime within the county or by one of the "hundredors," as
against another "hundred," was obliged to join the "hue and cry" (hutesium
et clamor) in the pursuit of the felon. This purely customary ancient
234
obligation was later made obligatory by statute. (Book 4, Cooley's
Blackstone's Commentaries, 294; 3 Edward I., Chapter 9; 4 Edward I.,
Chapter 2; 13 Edward I., Chapters 1 and 4.).
Later the statute provided and directed: "That from thenceforth every county
shall be so well kept, that, immediately upon robberies and feloniously
committed, fresh suit shall be made from town (pueblo) to town, and from
county to county; and that "hue and cry" shall be raised upon the felons, and
they keep the town (pueblo) shall follow with "hue and cry," with all the town
(pueblo), and the towns (pueblos) near; and so "hue and cry" shall be made
from town (pueblo) to town, until they be taken and delivered to the sheriff.".
Said statue further provided that in case the "hundred" failed to join the "hue
and cry" that it should be liable for the damages done by the malhechores.
Later, by statue (27th Elizabeth, chapter 13) it was provided that no "hue and
cry" would be sufficient unless it was made with both horsemen and footmen.
The "hue and cry" might be raised by a justice of the peace, or by any peace
officer, or by any private person who knew of the commission of the crime.
This ancient obligation of the individual to assist in the protection of the peace
and good order of his community is still recognized in all well-organized
governments in the "posse comitatus" (power of the county, poder del
condado). (Book 1 Cooley's Blackstone's Commentaries, 343; Book 4, 122.)
Under this power, those persons in the state, county, or town who were
charged with the maintenance of peace and good order were bound, ex oficio,
to pursue and to take all persons who had violated the law. For that purpose
they might command all the male inhabitants of a certain age to assist them.
This power is called "posse comitatus" (power of the county). This was a right
well recognized at common law. Act No. 1309 is a statutory recognition of
such common-law right. Said Act attempts simply to designate the cases and
the method when and by which the people of the town (pueblo) may be called
upon to render assistance for the protection of the public and the preservation
of peace and order. It is an exercise of the police power of the state. Is there
anything in the organic or statutory law prohibiting the United States
Philippine Commission from adopting the provisions contained in said Act
No. 1309?
While the statement has its exceptions, we believe, generally speaking, that
the United States Commission, and now the Philippine Legislature, may
legislate and adopt laws upon all subjects not expressly prohibited by the
Organic Law (Act of congress of July 1, 1902) or expressly reserved to
Congress. Congress did not attempt to say to the Philippine Legislature what
laws it might adopt. Congress contended itself by expressly indicating what
laws the Legislature should not adopt, with the requirement that all laws
adopted should be reported to it, and with the implied reservation of the right
to nullify such laws as might not meet with its approval.
Considering the Organic Act (Act of Congress of July 1, 1902) as the real
constitution of the United States Government in the Philippine Islands, and
its inhibitions upon the power of the Legislature, we believe an analogy may
be drawn relating to the difference between the Constitution of the United
States and the constitution of the different States, with reference to what laws
may be adopted by the different States. While the statement needs much
explanation, the general rule is that Congress has authority to legislate only
upon the questions expressly stated in the Constitution of the United States,
while the state legislature may legislate upon all questions, not expressly
conferred upon Congress, nor prohibited in its constitution. In other words,
an examination of the Constitution of the United States discloses the subject
matter upon which Congress may legislate, while examination of the
constitutions of the different States must be made for the purpose of
ascertaining upon what subjects the state legislature can not legislate. Stating
the rule in another way — the Constitution of the United States permits
Congress to legislate upon the following subjects; the constitutions of the
States prohibit the state legislature from legislating upon the following
subjects. Generally, then, the legislature of a State any adopt laws upon any
question not expressly delegated to Congress by the Constitution of the
United States or prohibited by the constitution of the particular State.
We think that is the rule which should be applied to the Philippine
Legislature. The Philippine Legislature has power to legislate upon all
subjects affecting the people of the Philippine Islands which has not been
delegated to Congress or expressly prohibited by said Organic Act. (Gaspar
vs. Molina, 5 Phil. Rep., 197; U.S., vs. Bull, 15 Phil. Rep., 7.)
The right or power conferred upon the municipalities by Act No. 1309 falls
within the police power of the state (U.S .vs. Ling Su Fan, 10 Phil. Rep., 104.)
Police power of the state has been variously defined. It has been defined as
the power of the government, inherent in every sovereign, and cannot be
limited; (License Cases, 5 How. (U.S.), 483). The power vested in the
legislature to make such laws as they shall judge to be for the good of the
235
state and its subjects. (Commonwealth vs. Alger, 7 Cush. (Mass.), 53, 85).
The power to govern men and things, extending to the protection of the lives,
limbs, health, comfort, and quiet of all persons, and the protection of all
property within the state. (Thorpe vs. Rutland, etc., Co., 27 Vt., 140, 149.)
The authority to establish such rules and regulations for the conduct of all
persons as may be conducive to the public interest. (People vs. Budd., 117
N.Y., 1, 14; U.S., vs. Ling Su Fan, supra.) Blackstone, in his valuable
commentaries on the common laws, defines police power as "the defenses,
regulations, and domestic order of the country, whereby the inhabitants of a
state, like members of a well-governed family, are bound to conform their
general behaviour to the rules of propriety, good neighborhood, and good
manners, and to be decent, industrious, and inoffensive in their respective
stations." (4 Blackstone's Co., 162.)
The police power of the state may be said to embrace the whole system of
internal regulation, by which the state seeks not only to preserve public order
and to prevent offenses against the state, but also to establish, for the
intercourse of citizen with citizen, those rules of good manners and good
neighborhood, which are calculated to prevent a conflict of rights, and to
insure to each the uninterrupted enjoyment of his own, so far as is reasonably
consistent, with a like enjoyment of the rights of others. The police power of
the state includes not only the public health and safety, but also the public
welfare, protection against impositions, and generally the public's best best
interest. It so extensive and all pervading, that the courts refuse to lay down
a general rule defining it, but decide each specific case on its merits. (Harding
vs. People, 32 L.R.A., 445.)
The police power of the state has been exercised in controlling and regulating
private business, even to the extent of the destruction of the property of
private persons, when the use of such property became a nuisance to the
public health and convenience. (Slaughter House Cases, 16 Wal (U.S.), 36
Minnesota vs. Barber, 136 U.S., 313; Powell vs. Pennsylvania, 127 U.S., 678;
Walling vs. People, 166 U.S., 446; U.S. vs. Ling Su Fan, 10 Phil. Rep., 104.)
We are of the opinion, and so hold, that the power exercised under the
provisions of Act No. 1309 falls within the police power of the state and that
the state was fully authorized and justified in conferring the same upon the
municipalities of the Philippine Islands and that, therefore, the provisions of
said Act are constitutional and not in violation nor in derogation of the rights
of the persons affected thereby.
With reference to the first question presented by the appeal, relating to the
sufficiency of the complaint, it will be noted that Act No. 1309 authorized the
municipal governments to establish ordinances requiring (a) all able bodied
male residents, between the the ages of 18 and 55 [50], and (b) all
householders, under certain conditions, to do certain things.
It will also be noted that the law authorizing the president of the municipality
to call upon persons, imposes certain conditions as prerequisites: (1) The
person called upon to render such services must be an able-bodied male
resident of the municipality; (2) he must be between the ages of 18 and 55
[50], and (3) certain conditions must exist requiring the services of such
persons.
It will not contended that a nonresident of the municipality would be liable
for his refusal to obey the call of the president; neither can it be logically
contended that one under the age of 18 or over the age of 55 [50] would incur
the penalty of the law by his refusal to obey the command of the president.
Moreover, the persons liable for the service mentioned in the law cannot be
called upon at the mere whim or caprice of the president. There must be some
just and reasonable ground, at least sufficient in the mind of a reasonable man,
before the president can call upon the the persons for the service mentioned
in the law. The law does not apply to all persons. The law does not apply to
every condition. The law applies to special persons and special conditions.
A complaint based upon such a law, in order to be free from objection under
a demurrer, must show that the person charged belongs to the class of persons
to which the law is applicable. For example, under the Opium Law, certain
persons are punishable criminally for having opium in their possession. All
possessors of opium are not liable under the law. A complaint, therefore,
charging a person with the possession of opium, without alleging that he did
not belong to the class which are permitted to possess it, would be
objectionable under a demurrer, because all persons are not liable. The
complaint must show that the one charged wit the possession of the opium
was not one of the persons who might legally possess opium. Suppose, for
another example, that there was a law providing that all persons who
performed manual labor on Sunday should be punished, with a provision that
if such labor should be performed out of necessity, the person performing it
would not be liable. In such a case, in the complaint, in order to show a good
cause of action , it would be necessary to allege that the labor was not
236
performed under necessity. In other words, the complaint, in order to be free
from objection raised by a demurrer, must show that the person accused of
the crime, in the absence of proof, is punishable under the law. One who
performed labor under necessity would not be liable. The complaints, in the
foregoing examples, in the absence of an allegation which showed that the
party accused did not belong to the exempted class, would not be good. In the
absence of such negations, the courts would be unable to impose the penalty
of the law, because, perchance, the defendant might belong to the exempt
class. The complaint, in a criminal case, must state every fact necessary to
make out an offense. (U.S. vs. Cook, 17 Wall. (U.S.), 168.) The complaint
must show, on its face that, if the facts alleged are true, an offense has been
committed. It must state explicitly and directly every fact and circumstance
necessary to constitute an offense. If the statute exempts certain persons, or
classes of persons, from liability, then the complaint should show that the
person charged does not belong to that class.

Even admitting all of the facts in the complaint in the present case, the court
would be unable to impose the punishment provided for by law, because it
does not show (a) that the defendant was a male citizen of the municipality;
(b) that he was an able-bodied citizen; (c) that he was not under 18 years of
age nor over 55 [50]; nor (d) that conditions existed which justified the
president of the municipality in calling upon him for the services mentioned
in the law.

For all of the foregoing reasons, the judgment of the lower court is hereby
affirmed, with costs. So ordered.

237
Weems v. United States, 217 U.S. 349 (1910)
Weems v. United States
No. 20
Argued November 30
December 1, 1909
Decided May 2,19I0
217 U.S. 349
ERROR TO THE SUPREME COURT OF THE PHILIPPINE ISLANDS
Syllabus
A paramount governmental authority may make use of subordinate
governmental instruments without the creation of a distinct legal entity, as is
the case of the United States and the United States Government of the
Philippine Islands.
Under the Philippine Criminal Code of Procedure, a public offense need not
necessarily be described in the information in exact words of the statute, but
only in ordinary and concise language, so as to enable a person of common
understanding to understand the charge and the court to pronounce judgment.
A charge describing the accused as a public official of the United States
Government of the Philippine Islands and his offense as falsifying a public
and official document in this case held sufficient. Carrington v. United States,
208 U. S. 1, distinguished.
The provision in Rule 35 that this court may, at its option, notice a plain error
not assigned is not a rigid rule controlled by precedent, but confers a
discretion exercisable at any time, regardless of what may have been done at
other times; the court has less reluctance to disregard prior examples in
criminal, than in civil, cases, and will act under the Rule when rights
constitutional in nature or secured under a bill of rights are asserted.
Although not raised in the courts below, this court will, under Rule 35,
consider an assignment of error made for the first time in this court that a
sentence is cruel and unusual within the meaning of the Eighth Amendment
to the Constitution or of the similar provision in the Philippine bill of rights.
In interpreting the Eighth Amendment, it will be regarded as a precept of
justice that punishment for crime should be graduated and proportioned to the
offense.
A provision of the Philippine bill of rights taken from the Constitution of the
United States must have the same meaning, and so held that the provision
prohibiting cruel and unusual punishments must be interpreted as the Eighth
Amendment has been.
What constitutes a cruel and unusual punishment prohibited by the Eighth
Amendment has not been exactly defined, and no case as heretofore occurred
in this court calling for an exhaustive definition.
Page 217 U. S. 350
While legislation, both statutory and constitutional, is enacted to remedy
existing evils, its general language is not necessarily so confined, and it may
be capable of wider application than to the mischief giving it birth.
The Eighth Amendment is progressive, and does not prohibit merely the cruel
and unusual punishments known in 1689 and 1787, but may acquire wider
meaning as public opinion becomes enlightened by humane justice, and a
similar provision in the Philippine bill of rights applies to long-continued
imprisonment with accessories disproportionate to the offense.
While the judiciary may not oppose its power to that of the legislature in
defining crimes and their punishment as to expediency, it is the duty of the
judiciary to determine whether the legislature has contravened a
constitutional prohibition and in that respect, and, for that purpose, the power
of the judiciary is superior to that of the legislature.
It is within the power of this court to declare a statute of the Penal Code
defining a crime and fixing its punishment void as violative of the provision
in the Philippine bill of rights prohibiting cruel and unusual punishment.
238
In determining whether a punishment is cruel and unusual as fixed by the
Philippine Commission, this court will consider the punishment of the same
or similar crimes in other parts of the United States, as exhibiting the
difference between power unrestrained and that exercised under the spirit of
constitutional limitations formed to establish justice.
Where the statute unites all the penalties, the court cannot separate them, even
if separable, unless it is clear that the union was not made imperative by the
legislature; and, in this case, held that the penalties of cadena temporal,
principal and accessories, under art. 56 of the Penal Code of the Philippine
Islands, are not independent of each other.
Where the minimum sentence which the court might impose is cruel and
unusual within the prohibition of a bill of rights, the fault is in the law, and
not in the sentence, and if there is no other law under which sentence can be
imposed, it is the duty of the court to declare the law void.
Where sentence cannot be imposed under any law except that declared
unconstitutional or void, the case cannot be remanded for new sentence, but
the judgment must be reversed with directions to dismiss the proceedings.
In this case, the court declared § 56 of the Penal Code of the Philippine
Page 217 U. S. 351
Islands, and a sentence pronounced thereunder, void as violating the
provision in the Philippine bill of rights contained in 5 of the act of July 1,
1902, c. 1369, 32 Stat. 691, against the imposition of excessive fines and the
infliction of cruel and unusual punishment, insofar as being prescribed for an
offense by an officer of the Government of making false entries in public
records as to payments of 616 pesos, the punishment being a fine of 4,000
pesos and cadena temporal of over twelve years with accessories, such
accessories including the carrying of chains, deprivation of civil rights during
imprisonment, and thereafter perpetual disqualification to enjoy political
rights, hold office, etc., and subjection besides to surveillance.
The history of the adoption of the Eighth Amendment to the Constitution of
the United States and cases involving constitutional prohibitions against
excessive fines and cruel and unusual punishment reviewed and discussed in
the opinion of the court and the dissenting opinion.
The facts, which involve the legality of § 56 of the Penal Code of the
Philippine Islands, and a sentence thereunder, under the guarantees against
cruel and unusual punishments of the bill of rights of the Philippine Islands
as expressed in the act of July 1, 1902, are stated in the opinion.
Page 217 U. S. 357
MR. JUSTICE McKENNA delivered the opinion of the court. *
This writ of error brings up for review the judgment of the supreme court of
the Philippine Islands, affirming the conviction of plaintiff in error for
falsifying a "public and official document."
In the "complaint," by which the prosecution was begun, it was charged that
the plaintiff in error,
"a duly appointed, qualified, and acting disbursing officer of the Bureau of
Coast Guard and Transportation of the United States Government of the
Philippine Islands,"
did, as such,
"corruptly, and with intent then and there to deceive and defraud the United
States Government of the Philippine Islands and its officials, falsify a public
and official document, namely, a cash book of the captain of the port of
Manilla, Philippine Islands, and the Bureau of Coast Guard and
Transportation of the United States Government of the Philippine Islands,"
kept by him as disbursing officer of that bureau. The falsification, which is
alleged with much particularity, was committed by entering as paid out, "as
wages of employees of the lighthouse service
Page 217 U. S. 358
of the United States Government of the Philippine Islands," at the Capul Light
House, of 208 pesos, and for like service at the Matabriga Light House of 408
pesos, Philippine currency. A demurrer was filed to the "complaint," which
was overruled.
239
He was convicted, and the following sentence was imposed upon him:
"To the penalty of fifteen years of cadena, together with the accessories of
section 56 of the Penal Code, and to pay a fine of 4,000 pesetas, but not to
serve imprisonment as a subsidiary punishment in case of his insolvency, on
account of the nature of the main penalty, and to pay the costs of this cause."
The judgment and sentence were affirmed by the supreme court of the islands.
It is conceded by plaintiff in error that some of the questions presented to the
Supreme Court of the Philippine Islands cannot be raised in this court, as the
record does not contain the evidence. Indeed, plaintiff in error confines his
discussion to one point raised in the court below and to three other questions,
which, though not brought to the attention of the Supreme Court of the
islands, and not included in the assignment of errors, are of such importance,
it is said, that this court will consider them under the right reserved in Rule
35.*
Page 217 U. S. 359
These questions, which are assigned as error on the argument here, are as
follows:
"1. The court below erred in overruling the demurrer to the complaint, this
assignment being based upon the fact that, in the complaint, the plaintiff in
error is described as the 'disbursing officer of the Bureau of Coast Guard and
Transportation of the United States Government of the Philippine Islands,'
and the cash book referred to in the complaint is described as a book 'of the
captain of the port of Manila, Philippine Islands,' whereas there is no such
body politic as the 'United States government of the Philippine Islands.'"
"2. The record does not disclose that the plaintiff in error was arraigned, or
that he pleaded to the complaint after his demurrer was overruled and he was
'ordered to plead to the complaint.'"
"3. The record does not show that the plaintiff in error was present when he
was tried, or, indeed, that he was present in court at any time."
"4. The punishment of fifteen years' imprisonment was a cruel and unusual
punishment, and, to the extent of the sentence, the judgment below should be
reversed on this ground."
The second assignment of error was based upon a misapprehension of the
fact, and has been abandoned.
The argument to support the first assignment of error is based upon certain
acts of Congress and certain acts of the Philippine Commission in which the
government of the United States and the government of the Islands are
distinguished.
Page 217 U. S. 360
And it is urged that, in one of the acts (§ 3396 of the acts of the commission)
it is recognized that there may be allegiance to or treason against both or
"either of them," and (§ 3397) that there may be "rebellion or insurrection
against the authority" of either, and (§ 3398) that there may be a conspiracy
to overthrow either, or to "prevent, hinder, or delay the execution of any law
of either." Other sections are cited in which it is contended that the insular
government is spoken of as an "entity," and distinguished from that of the
United States. Section 1366, which defines the duty of the attorney general,
it is pointed out, especially distinguishes between "causes, civil or criminal,
to which the United States or any officer thereof in his official capacity is a
party," and causes, civil or criminal, to which the "government of the
Philippine Islands or any officer thereof in his official capacity is a party."
And, still more decisively, it is urged, by subdivision "C" of § 1366, in which
it is recognized that the cause of action may be for money, and that the
judgment may be for money "belonging to the government of the United
States and that of the Philippine Islands or some other province." It is
therefore contended that the Government of the United States and that of the
Philippine Islands are distinct legal entities, and that there may be civil
obligations to one and not to the other; that there may be governmental
liability to the one and not to the other, and that proceedings, civil or criminal,
against either must recognize the distinction to be sufficient to justify a
judgment. To apply these principles, let us see what the information charges.
It describes Weems, plaintiff in error, as
"a public official of the United States Government of the Philippine Islands,
to-wit, a duly appointed and qualified acting disbursing official of the Bureau
240
of Coast Guard and Transportation of the United States Government of the
Philippine Islands,"
and it is charged that, by taking advantage of his official position, with intent
to "deceive and defraud the United States government of the Phillipine
Islands," he falsified a public and official document. In the same manner, the
government
Page 217 U. S. 361
is designated throughout the information. It is contended that "there is no such
body politic as the United States Government of the Philippine Islands,'" and
it is urged that the objection does not relate to a matter of form. "It is as
substantial," it is said, as the point involved in Carrington v. United States,
208 U. S. 1, where a military officer of the United States was prosecuted as a
civil officer of the government of the Philippines. His conviction was
reversed, this court holding that, "as a soldier, he was not an official of the
Philippines, but of the United States."
It is true that the distinctions raised are expressed in the statutes, and
necessarily so. It would be difficult otherwise to provide for government
where there is a paramount authority making use of subordinate
instrumentalities. We have examples in the states of the Union and their lesser
municipal divisions, and rights may flow from and to such lesser divisions.
And the distinction in the Philippine statutes means no more than that, and,
conforming to that, a distinction is clearly made in the information. Weems'
official position is described as "Disbursing Officer of the Bureau of Coast
Guard and Transportation of the United States Government of the Philippine
Islands." There is no real uncertainty in this description, and whatever
technical nicety of discrimination might have been insisted on at one time
cannot now be, in view of the provisions of the Philippine Criminal Code of
Procedure, which requires a public offense to be described in "ordinary and
concise language," not necessarily in the words of the statute,
"but in such form as to enable a person of common understanding to know
what is intended, and the court to pronounce judgment according to the right."
And it is further provided that
"no information or complaint is insufficient, nor can the trial, judgment, or
other proceeding be affected, by reason of a defect in matter of form which
does not tend to prejudice a substantial right of the defendant upon the
merits."
(§ 10)
Carrington v. United States, 208 U. S. 1, is not in point. In
Page 217 U. S. 362
that case it was attempted to hold Carrington guilty of an offense as a civil
officer for what he had done as a military officer. As he was the latter, he had
not committed any offense under the statute. The first assignment of error is
therefore not sustained.
It is admitted, as we have seen, that the questions presented by the third and
fourth assignments of error were not made in the courts below, but a
consideration of them is invoked under rule 35, which provides that this court,
"at its option, may notice a plain error not assigned."
It is objected on the other side that Paraiso v. United States, 207 U. S. 368,
stands in the way. But the rule is not altogether controlled by precedent. It
confers a discretion that may be exercised at any time, no matter what may
have been done at some other time. It is true we declined to exercise it in
Paraiso v. United States, but we exercised it in Wiborg v. United States, 163
U. S. 632, 163 U. S. 658; Clyatt v. United States, 197 U. S. 207, 197 U. S.
221, and Crawford v. United States, 212 U. S. 183. It may be said, however,
that Paraiso v. United States is more directly applicable, as it was concerned
with the same kind of a crime as that in the case at bar, and that it was
contended there, as here, that the amount of fine and imprisonment imposed
inflicted a cruel and unusual punishment. It may be that we were not
sufficiently impressed with the importance of those contentions, or saw in the
circumstances of the case no reason to exercise our right of review under Rule
35. As we have already said, the rule is not a rigid one, and we have less
reluctance to disregard prior examples in criminal cases than in civil cases,
and less reluctance to act under it when rights are asserted which are of such
high character as to find expression and sanction in the Constitution or Bill
of Rights. And such rights are asserted in this case.
241
The assignment of error is that
"a punishment of fifteen years' imprisonment was a cruel and unusual
punishment, and, to the extent of the sentence, the judgment below should be
reversed on this ground."
Weems was convicted, as we
Page 217 U. S. 363
have seen, for the falsification of a public and official document, by entering
therein, as paid out, the sums of 208 and 408 pesos, respectively, as wages to
certain employees of the lighthouse service. In other words, in entering upon
his cash book those sums as having been paid out when they were not paid
out, and the "truth," to use the language of the statue, was thereby perverted
"in the narration of facts."
A false entry is all that is necessary to constitute the offense. Whether an
offender against the statute injures anyone by his act, or intended to injure
anyone, is not material, the trial court held. The court said:
"It is not necessary that there be any fraud, nor even the desire to defraud, nor
intention of personal gain on the part of the person committing it, that a
falsification of a public document be punishable; it is sufficient that the one
who committed it had the intention to pervert the truth and to falsify the
document, and that by it damage might result to a third party."
The court further, in the definition of the nature of the offense and the purpose
of the law, said: "In public documents, the law takes into consideration not
only private interests, but also the interests of the community;" and it is its
endeavor (and for this, a decision of the Supreme Court of Spain, delivered
in 1873, was quoted)
"to protect the interest of society by the most strict faithfulness on the part of
a public official in the administration of the office intrusted to him,"
and thereby fulfill the "responsibility of the state to the community for the
official or public documents under the safeguard of the state." And this was
attempted to be secured through the law in controversy. It is found in § 1 of
chapter 4 of the Penal Code of Spain. The caption of the section is,
"Falsification of Official and Commercial Documents and Telegraphic
Despatches." Article 300 provides as follows:
"The penalties of cadena temporal and a fine of from 1,250 to 12,500 pesetas
shall be imposed on a public official who, taking advantage of his authority,
shall commit a falsification. . . . by perverting the truth in the narration of
facts. . . ."
By other provisions of the Code, we find that there are only
Page 217 U. S. 364
two degrees of punishment higher in scale than cadena temporal, -- death, and
cadena perpetua. The punishment of cadena temporal is from twelve years
and one day to twenty years (Arts. 28 and 96), which "shall be served" in
certain "penal institutions." And it is provided that
"those sentenced to cadena temporal and cadena perpetua shall labor for the
benefit of the state. They shall always carry a chain at the ankle, hanging from
the wrists; they shall be employed at hard and painful labor, and shall receive
no assistance whatsoever from without the institution."
Arts. 105, 106. There are, besides, certain accessory penalties imposed, which
are defined to be (1) civil interdiction; (2) perpetual absolute disqualification;
(3) subjection to surveillance during life. These penalties are defined as
follows:
"Art. 42. Civil interdiction shall deprive the person punished, as long as he
suffers it, of the rights of parental authority, guardianship of person or
property, participation in the family council, marital authority, and the right
to dispose of his own property by acts inter vivos. Those cases are excepted
in which the laws explicitly limit its effects."
"Art. 43. Subjection to the surveillance of the authorities imposes the
following obligations on the persons punished:"
"1. That of fixing his domicil and giving notice thereof to the authority
immediately in charge of his surveillance, not being allowed to change it
without the knowledge and permission of said authority, in writing."
242
"2. To observe the rules of inspection prescribed."
"3. To adopt some trade, art, industry, or profession should he not have known
means of subsistence of his own."
"Whenever a person punished is placed under the surveillance of the
authorities, notice thereof shall be given to the government and to the
governor general."
The penalty of perpetual absolute disqualification is the deprivation of office,
even though it be held by popular election, the deprivation of the right to vote
or to be elected to
Page 217 U. S. 365
public office, the disqualification to acquire honors, etc., and the loss of
retirement pay, etc.
These provisions are attacked as infringing that provision of the Bill of Rights
of the islands which forbids the infliction of cruel and unusual punishment. It
must be confessed that they, and the sentence in this case, excite wonder in
minds accustomed to a more considerate adaptation of punishment to the
degree of crime. In a sense, the law in controversy seems to be independent
of degrees. One may be an offender against it, as we have seen, though he
gain nothing and injure nobody. It has, however, some human indulgence --
it is not exactly Draconian in uniformity. Though it starts with a severe
penalty, between that and the maximum penalty, it yields something to
extenuating circumstances. Indeed, by Article 96 of the Penal Code, the
penalty is declared to be "divisible," and the legal term of its "duration is
understood as distributed into three parts, forming the three degrees -- that is,
the minimum, medium, and maximum" -- being, respectively, twelve years
and one day to fourteen years and eight months; from fourteen years, eight
months, and one day to seventeen years and four months; from seventeen
years, four months, and one day to twenty years. The law therefore allows a
range from twelve years and a day to twenty years, and the government, in its
brief, ventures to say that "the sentence of fifteen years is well within the
law." But the sentence is attacked, as well as the law, and what it is to be well
within the law a few words will exhibit. The minimum term of imprisonment
is twelve years, and that, therefore, must be imposed for "perverting the truth"
in a single item of a public record, though there be no one injured, though
there be no fraud or purpose of it, no gain or desire of it. Twenty years is the
maximum imprisonment, and that only can be imposed for the perversion of
truth in every item of an officer's accounts, whatever be the time covered and
whatever fraud it conceals or tends to conceal. Between these two possible
sentences, which seem to have no adaptable relation, or rather,
Page 217 U. S. 366
in the difference of eight years for the lowest possible offense and the highest
possible, the courts below selected three years to add to the minimum of
twelve years and a day for the falsification of two items of expenditure,
amounting to the sums of 408 and 204 pesos. And the fine and "accessories"
must be brought into view. The fine was 4,000 pesetas -- an excess also over
the minimum. The "accessories," we have already defined. We can now give
graphic description of Weems' sentence and of the law under which it was
imposed. Let us confine it to the minimum degree of the law, for it is with the
law that we are most concerned. Its minimum degree is confinement in a
penal institution for twelve years and one day, a chain at the ankle and wrist
of the offender, hard and painful labor, no assistance from friend or relative,
no marital authority or parental rights or rights of property, no participation
even in the family council. These parts of his penalty endure for the term of
imprisonment. From other parts, there is no intermission. His prison bars and
chains are removed, it is true, after twelve years, but he goes from them to a
perpetual limitation of his liberty. He is forever kept under the shadow of his
crime, forever kept within voice and view of the criminal magistrate, not
being able to change his domicil without giving notice to the "authority
immediately in charge of his surveillance," and without permission in writing.
He may not seek, even in other scenes and among other people, to retrieve
his fall from rectitude. Even that hope is taken from him, and he is subject to
tormenting regulations that, if not so tangible as iron bars and stone walls,
oppress as much by their continuity, and deprive of essential liberty. No
circumstance of degradation is omitted. It may be that even the cruelty of pain
is not omitted. He must bear a chain night and day. He is condemned to
painful as well as hard labor. What painful labor may mean, we have no exact
measure. It must be something more than hard labor. It may be hard labor
pressed to the point of pain. Such penalties for such offenses amaze those
Page 217 U. S. 367
243
who have formed their conception of the relation of a state to even its
offending citizens from the practice of the American commonwealths, and
believe that it is a precept of justice that punishment for crime should be
graduated and proportioned to offense.
Is this also a precept of the fundamental law? We say fundamental law, for
the provision of the Philippine Bill of Rights prohibiting the infliction of cruel
and unusual punishment was taken from the Constitution of the United States,
and must have the same meaning. This was decided in Kepner v. United
States, 195 U. S. 100, and Serra v. Mortiga, 204 U. S. 477. In Kepner v.
United States, this court considered the instructions of the President to the
Philippine Commission, and quoted from them the admonition to the
commission that the government that we were establishing was not designed
"for our satisfaction or for the expression of our theoretical views, but for the
happiness . . . of the people of the Philippine Island; and the measures adopted
should be made to conform to their customs, their habits, and even their
prejudices, to the fullest extent consistent with the accomplishment of the
indispensable requisites of just and effective government."
But, it was pointed out, a qualification accompanied the admonition, and the
commission was instructed "to bear in mind," and the people of the islands
"made plainly to understand," that certain great principles of government had
been made the basis of our governmental system which were deemed
"essential to the rule of law and the maintenance of individual freedom." And
the president further declared that there were
"certain practical rules of government which we have found to be essential to
the preservation of those great principles of liberty and law."
These he admonished the commission to establish and maintain in the islands
"for the sake of their liberty and happiness," however they might conflict with
the customs or laws of procedure with which they were familiar. In view of
the importance of these principles and rules, which the President said the
"enlightened
Page 217 U. S. 368
thought of the Philippine Islands" would come to appreciate, he imposed their
observance "upon every division and branch of the government of the
Philippines."
Among those rules was that which prohibited the infliction of cruel and
unusual punishment. It was repeated in the act of July 1, 1902, providing for
the administration of the affairs of the civil government in the islands, and
this court said of it and of the instructions of the President that they were
"intended to carry to the Philippine Islands those principles of our
government which the President declared to be established as rules of law for
the maintenance of individual freedom."
The instructions of the President and the act of Congress found in nominal
existence in the islands the Penal Code of Spain, its continuance having been
declared by military order. It may be there was not and could not be a careful
consideration of its provisions and a determination to what extent they
accorded with or were repugnant to the "great principles of liberty and law"
which had been "made the basis of our governmental system." Upon the
institution of the government of the commission, if not before, that
consideration and determination necessarily came to the courts, and are
presented by this record.
What constitutes a cruel and unusual punishment has not been exactly
decided. It has been said that, ordinarily, the terms imply something inhuman
and barbarous -- torture and the like. McDonald v. Commonwealth, 173
Mass. 322. The court, however, in that case, conceded the possibility
"that punishment in the state prison for a long term of years might be so
disproportionate to the offense as to constitute a cruel and unusual
punishment."
Other cases have selected certain tyrannical acts of the English monarchs as
illustrating the meaning of the clause and the extent of its prohibition.
The provision received very little debate in Congress. We find from the
Congressional Register, p. 225, that Mr. Smith, of South Carolina, "objected
to the words "nor cruel and
Page 217 U. S. 369
244

unusual punishment," the import of them being too indefinite." Mr.
Livermore opposed the adoption of the clause saying:
"The clause seems to express a great deal of humanity, on which account I
have no objection to it; but, as it seems to have no meaning in it, I do not
think it necessary. What is meant by the terms 'excessive bail?' Who are to be
the judges? What is understood by 'excessive fines?' It lays with the court to
determine. No cruel and unusual punishment is to be inflicted; it is sometimes
necessary to hang a man, villains often deserve whipping, and perhaps having
their ears cut off; but are we, in future, to be prevented from inflicting these
punishments because they are cruel? If a more lenient mode of correcting vice
and deterring others from the commission of it could be invented, it would be
very prudent in the legislature to adopt it; but until we have some security
that this will be done, we ought not to be restrained from making necessary
laws by any declaration of this kind."
The question was put on the clause, and it was agreed to by a considerable
majority.
No case has occurred in this court which has called for an exhaustive
definition. In Pervear v. Massachusetts, 5 Wall. 475, it was decided that the
clause did not apply to state but to national legislation. But we went further,
and said that we perceive nothing excessive, or cruel, or unusual in a fine of
$50 and imprisonment at hard labor in the house of correction for three
months, which was imposed for keeping and maintaining, without a license,
a tenement for the illegal sale and illegal keeping of intoxicating liquors. A
decision from which no one will dissent.
In Wilkerson v. Utah, 99 U. S. 130, the clause came up again for
consideration. A statute of Utah provided that "a person convicted of a capital
offense should suffer death by being shot, hanged, or beheaded," as the court
might direct, or he should "have his option as to the manner of his execution."
The statute was sustained. The court pointed out that death was an usual
punishment for murder, that it prevailed
Page 217 U. S. 370
in the territory for many years, and was inflicted by shooting; also that that
mode of execution was usual under military law. It was hence concluded that
it was not forbidden by the Constitution of the United States as cruel or
unusual. The court quoted Blackstone as saying that the sentence of death
was generally executed by hanging, but also that circumstances of terror,
pain, or disgrace were sometimes superadded. "Cases mentioned by the
author," the court said,
"are where the person was drawn or dragged to the place of execution, in
treason; or where he was disemboweled alive, beheaded, and quartered, in
high treason. Mention is also made of public dissection in murder, and
burning alive in treason committed by a female."
And it was further said:
"Examples of such legislation in the early history of the parent country are
given by the annotator of the last edition of Archbold's treatise. Archbold,
Crim. Pr. & Pl. 8th ed. 584."
This court's final commentary was that
"difficulty would attend the effort to define with exactness the extent of the
constitutional provision which provides that cruel and unusual punishments
shall not be inflicted; but it is safe to affirm that punishments of torture, such
as those mentioned by the commentator referred to, and all others in the same
line of unnecessary cruelty, are forbidden by that Amendment to the
Constitution. Cooley, Const.Lim. 4th ed. 408; Wharton, Crim.Law, 7th ed. §
3405."
That passage was quoted in In Re Kemmler, 136 U. S. 436, 136 U. S. 447,
and this comment was made:
"Punishments are cruel when they involve torture or a lingering death; but the
punishment of death is not cruel within the meaning of that word as used in
the Constitution. It implies there something inhuman and barbarous, and
something more than the mere extinguishment of life."
The case was an application for habeas corpus, and went off on a question of
jurisdiction, this court holding that the Eighth Amendment did not apply to
state legislation. It was not meant in the language we have quoted to give a
comprehensive definition of cruel and unusual
245
Page 217 U. S. 371
punishment, but only to explain the application of the provision to the
punishment of death. In other words, to describe what might make the
punishment of death cruel and unusual, though of itself it is not so. It was
found as a fact by the state court that death by electricity was more humane
than death by hanging.
In O'Neil v. Vermont, 144 U. S. 323, the question was raised, but not decided.
The reasons given for this were that because it was not as a Federal question
assigned as error, and, so far as it arose under the Constitution of Vermont, it
was not within the province of the court to decide. Moreover, it was said, as
a Federal question, it had always been ruled that the Eighth Amendment of
the Constitution of the United States did not apply to the states. Mr. Justice
Field, Mr. Justice Harlan, and Mr. Justice Brewer were of opinion that the
question was presented, and Mr. Justice Field, construing the clause of the
Constitution prohibiting the infliction of cruel and unusual punishment, said,
the other two Justices concurring, that the inhibition was directed not only
against punishments which inflict torture, "but against all punishments which,
by their excessive length or severity, are greatly disproportioned to the
offenses charged." He said further: "The whole inhibition is against that
which is excessive in the bail required or fine imposed or punishment
inflicted."
The law writers are indefinite. Story, in his work on the Constitution, vol. 2,
5th ed. § 1903, says that the provision "is an exact transcript of a clause in the
Bill of Rights framed at the revolution of 1688." He expressed the view that
the provision
"would seem to be wholly unnecessary in a free government, since it is
scarcely possible that any department of such a government should authorize
or justify such atrocious conduct."
He, however, observed that it was
"adopted as an admonition to all departments of the national department, to
warn them against such violent proceedings as had taken place in England in
the arbitrary reigns of some of the Stuarts."
For this he cites 2 Elliott's Debates, 345, and refers to 2 Lloyd's
Page 217 U. S. 372
Debates, 225, 226; 3 Elliott's debates, 345. If the learned author meant by this
to confine the prohibition of the provision to such penalties and punishment
as were inflicted by the Stuarts, his citations do not sustain him. Indeed, the
provision is not mentioned except in 2 Elliott's Debates, from which we have
already quoted. The other citations are of the remarks of Patrick Henry in the
Virginia convention, and of Mr. Wilson in the Pennsylvania convention.
Patrick Henry said that there was danger in the adoption of the Constitution
without a Bill of Rights. Mr. Wilson considered that it was unnecessary, and
had been purposely omitted from the Constitution. Both, indeed, referred to
the tyranny of the Stuarts. Henry said that the people of England, in the Bill
of Rights, prescribed to William, Prince of Orange, upon what terms he
should reign. Wilson said that
"the doctrine and practice of a declaration of rights have been borrowed from
the conduct of the people of England on some remarkable occasions; but the
principles and maxims on which their government is constituted are widely
different from those of ours."
It appears, therefore, that Wilson, and those who thought like Wilson, felt
sure that the spirit of liberty could be trusted, and that its ideals would be
represented, not debased, by legislation. Henry and those who believed as he
did would take no chances. Their predominant political impulse was distrust
of power, and they insisted on constitutional limitations against its abuse. But
surely they intended more than to register a fear of the forms of abuse that
went out of practice with the Stuarts. Surely, their jealousy of power had a
saner justification than that. They were men of action, practical and
sagacious, not beset with vain imagining, and it must have come to them that
there could be exercises of cruelty by laws other than those which inflicted
bodily pain or mutilation. With power in a legislature great, if not unlimited,
to give criminal character to the actions of men, with power unlimited to fix
terms of imprisonment with what accompaniments they might, what more
potent instrument of cruelty
Page 217 U. S. 373
could be put into the hands of power? And it was believed that power might
be tempted to cruelty. This was the motive of the clause, and if we are to
246
attribute an intelligent providence to its advocates, we cannot think that it was
intended to prohibit only practices like the Stuarts', or to prevent only an exact
repetition of history. We cannot think that the possibility of a coercive cruelty
being exercised through other forms of punishment was overlooked. We say
"coercive cruelty" because there was more to be considered than the ordinary
criminal laws. Cruelty might become an instrument of tyranny; of zeal for a
purpose, either honest or sinister.
Legislation, both statutory and constitutional, is enacted, it is true, from an
experience of evils, but its general language should not, therefore, be
necessarily confined to the form that evil had theretofore taken. Time works
changes, brings into existence new conditions and purposes. Therefore a
principle, to be vital, must be capable of wider application than the mischief
which gave it birth. This is peculiarly true of constitutions. They are not
ephemeral enactments, designed to meet passing occasions. They are, to use
the words of Chief Justice Marshall, "designed to approach immortality as
nearly as human institutions can approach it." The future is their care, and
provision for events of good and bad tendencies of which no prophecy can be
made. In the application of a constitution, therefore, our contemplation cannot
be only of what has been, but of what may be. Under any other rule, a
constitution would indeed be as easy of application as it would be deficient
in efficacy and power. Its general principles would have little value, and be
converted by precedent into impotent and lifeless formulas. Rights declared
in words might be lost in reality. And this has been recognized. The meaning
and vitality of the Constitution have developed against narrow and restrictive
construction. There is an example of this in Cummings v. Missouri, 4 Wall.
277, where the prohibition against ex post facto laws was given a more
extensive application than what a minority of this court
Page 217 U. S. 374
thought had been given in Calder v. Bull, 3 Dall. 386. See also Ex parte
Garland, 4 Wall. 333. The construction of the 14th Amendment is also an
example, for it is one of the limitations of the Constitution. In a not
unthoughtful opinion, Mr. Justice Miller expressed great doubt whether that
Amendment would ever be held as being directed against any action of a state
which did not discriminate "against the Negroes as a class, or on account of
their race." Slaughter House Cases, 16 Wall. 36. To what extent the
Amendment has expanded beyond that limitation need not be instanced.
There are many illustrations of resistance to narrow constructions of the
grants of power to the national government. One only need be noticed, and
we select it because it was made against a power which, more than any other,
is kept present to our minds in visible and effective action. We mean the
power over interstate commerce. This power was deduced from the eleven
simple words -- "to regulate commerce with foreign nations and among the
several states." The judgment which established it was pronounced by Chief
Justice Marshall (Gibbons v. Ogden, 9 Wheat. 1), and reversed a judgment of
Chancellor Kent, justified, as that celebrated jurist supposed, by a legislative
practice of fourteen years and fortified by the opinions of men familiar with
the discussions which had attended the adoption of the Constitution.
Persuaded by such considerations, the learned chancellor confidently decided
that the congressional power related to "external, not to internal, commerce,"
and adjudged that, under an act of the state of New York, Livingston and
Fulton had the exclusive right of using steamboats upon all of the navigable
waters of the state. The strength of the reasoning was not underrated. It was
supported, it was said, "by great names, by names which have all the titles to
consideration that virtue, intelligence, and office can bestow." The narrow
construction, however, did not prevail, and the propriety of the arguments
upon which it was based was questioned. It was said, in effect, that they
supported a construction which
"would cripple the government
Page 217 U. S. 375
and render it unequal to the objects for which it was declared to be instituted,
and to which the powers given, as fairly understood, render it competent."
But general discussion we need not farther pursue. We may rely on the
conditions which existed when the Constitution was adopted. As we have
seen, it was the thought of Story, indeed, it must come to a less trained
reflection than his, that government by the people, instituted by the
Constitution, would no imitate the conduct of arbitrary monarchs. The abuse
of power might, indeed, be apprehended, but not that it would be manifested
in provisions or practices which would shock the sensibilities of men.
Cooley, in his "Constitutional Limitations," apparently in a struggle between
the effect to be given to ancient examples and the inconsequence of a dread
of them in these enlightened times, is not very clear or decisive. He hesitates
247
to advance definite views, and expresses the "difficulty of determining
precisely what is meant by cruel and unusual punishment." It was probable,
however, he says, that
"any punishment declared by statute for an offense which was punishable in
the same way at common law could not be regarded as cruel or unusual in a
constitutional sense."
And he says further that
"probably any new statutory offense may be punished to the extent [italics
ours] and in the mode permitted by the common law for offenses of a similar
nature."
In the cases in the state courts, different views of the provision are taken. In
State v. Driver, 78 N. C. 423, 427, it was said that criminal legislation and its
administration are so uniformly humane that there is seldom occasion for
complaint. In that case, a sentence of the defendant for assault and battery
upon his wife was imprisonment in the county jail for five years, and at the
expiration thereof to give security to keep the peace for five, in the sum of
$500, with sureties, was held to be cruel and unusual. To sustain its judgment,
the court said that the prohibition against cruel and unusual punishment was
not "intended to warn against merely erratic
Page 217 U. S. 376
modes of punishment or torture, but applied expressly to bail,' `fines' and
"punishments.'" It was also said that
"the earliest application of the provision in England was in 1689, the first year
after the adoption of the Bill of Rights in 1688, to avoid an excessive
pecuniary fine imposed upon Lord Devonshire by the court of King's bench.
11 How.St.Tr. 1354."
Lord Devonshire was fined $30,000 for an assault and battery upon Colonel
Culpepper, and the House of Lords, in reviewing the case, took the opinion
of the law Lords, and decided that the fine "was excessive and exorbitant,
against Magna Charta, the common right of the subject, and the law of the
land." Other cases have given a narrower construction, feeling constrained
thereto by the incidences of history.
In Hobbs v. State, 32 N.E. 1019, the Supreme Court of Indiana expressed the
opinion that the provision did not apply to punishment by
"fine or imprisonment or both, but such as that inflicted at the whipping post,
in the pillory, burning at the stake, breaking on the wheel. . . ."
It was further said:
"The word, according to modern interpretation, does not affect legislation
providing imprisonment for life or for years, or the death penalty by hanging
or electrocution. If it did, our laws for the punishment of crime would give
no security to the citizen."
That conclusion certainly would not follow, and its expression can only be
explained by the impatience the court exhibited at the contention in that case,
which attacked a sentence of two years' imprisonment in the state prison for
combining to assault, beat, and bruise a man in the night-time. Indeed, in
court ventured the inquiry "whether, in this country, at the close of the
nineteenth century," the provision was "not obsolete," except as an
admonition to the courts "against the infliction of punishment so severe as
not to fit the crime.'" In other words, that it had ceased to be a restraint upon
legislatures, and had become an admonition only to the courts not to abuse
the discretion which might be intrusted to them. Other cases might
Page 217 U. S. 377
be cited in illustration, some looking backwards for examples by which to fix
the meaning of the clause; others giving a more expansive and vital character
to the provision, such as the President of the United States thought it
possessed, and admonished the Philippine Commission that it possessed as
"essential [with other rights] to the rule of law and the maintenance of
individual freedom."
An extended review of the cases in the state courts, interpreting their
respective constitutions, we will not make. It may be said of all of them that
there was not such challenge to the import and consequence of the inhibition
of cruel and unusual punishments as the law under consideration presents. It
has no fellow in American legislation. Let us remember that it has come to us
from a government of a different form and genius from ours. It is cruel in its
248
excess of imprisonment and that which accompanies and follows
imprisonment. It is unusual in its character. Its punishments come under the
condemnation of the Bill of Rights, both on account of their degree and kind.
And they would have those bad attributes even if they were found in a Federal
enactment, and not taken from an alien source.
Many of the state cases which have been brought to our attention require no
comment. They are based upon sentences of courts, not upon the
constitutional validity of laws. The contentions in other cases vary in merit
and in their justification of serious consideration. We have seen what the
contention was in Hobbs v. State, supra. In others, however, there was more
inducement to an historical inquiry. In Commonwealth v. Wyatt, 6 Rand. 694,
the whipping post had to be justified, and was justified. In comparison with
the "barbarities of quartering, hanging in chains, castration, etc.," it was easily
reduced to insignificance. The court in the latter case pronounced it "odious,
but not unusual." Other cases have seen something more than odiousness in
it, and have regarded it as one of the forbidden punishments. It is certainly as
odious as the pillory, and the latter has been pronounced
Page 217 U. S. 378
to be within the prohibitory clause. Whipping was also sustained in Foote v.
State. 59 Md. 264, as a punishment for wife beating. And, it may be, in
Aldridge v. Commonwealth, 2 Va.Cases 447. The law considered was one
punishing free negroes and mulattoes for grand larceny. Under the law, a free
person of color could be condemned to be sold as a slave, and transported and
banished beyond the limits of the United States. Such was the judgment
pronounced on the defendant by the trial court, and, in addition, thirty-nine
stripes on his bare back. The judgment was held valid on the ground that the
Bill of Rights of the state was
"never designed to control the legislative right to determine ad libitum upon
the adequacy of punishment, but is merely applicable to the modes of
punishment."
Cooley, in his Constitutional Limitations, says that it may be well doubted if
the right exist
"to establish the whipping post and the pillory in states where they were never
recognized as instruments of punishment, or in states whose constitutions,
revised since public opinion had banished them, have forbidden cruel and
unusual punishment."
The clause of the Constitution, in the opinion of the learned commentators,
may be therefore progressive, and is not fastened to the obsolete, but may
acquire meaning as public opinion becomes enlightened by a humane justice.
See Ex parte Wilson, 114 U. S. 417, 114 U. S. 427; Mackin v. United States,
117 U. S. 348, 117 U. S. 350.
In Hobbs v. State, supra, and in other cases, prominence is given to the power
of the legislature to define crimes and their punishment. We concede the
power in most of its exercises. We disclaim the right to assert a judgment
against that of the legislature, of the expediency of the laws, or the right to
oppose the judicial power to the legislative power to define crimes and fix
their punishment, unless that power encounters in its exercise a constitutional
prohibition. In such case, not our discretion, but our legal duty, strictly
defined and imperative in its direction, is invoked. Then the legislative power
is brought to the judgment of a power superior to it for the
Page 217 U. S. 379
instant. And, for the proper exercise of such power, there must be a
comprehension of all that the legislature did or could take into account -- that
is, a consideration of the mischief and the remedy. However, there is a certain
subordination of the judiciary to the legislature. The function of the
legislature is primary, its exercise fortified by presumptions of right and
legality, and is not to be interfered with lightly, nor by any judicial conception
of its wisdom or propriety. They have no limitation, we repeat, but
constitutional ones, and what those are, the judiciary must judge. We have
expressed these elementary truths to avoid the misapprehension that we do
not recognize to the fullest the wide range of power that the legislature
possesses to adapt its penal laws to conditions as they may exist, and punish
the crimes of men according to their forms and frequency. We do not intend
in this opinion to express anything that contravenes those propositions.
Our meaning may be illustrated. For instance, in Territory v. Ketchum, 10
N.M. 718, a case that has been brought to our attention as antagonistic to our
views of cruel and unusual punishments, a statute was sustained which
imposed the penalty of death upon any person who should make an assault
upon any railroad train, car, or locomotive for the purpose and with the intent
249
to commit murder, robbery, or other felony upon a passenger or employee,
express messenger or mail agent. The Supreme Court of the territory
discussed the purpose of the Eighth Amendment, and expressed views
opposed to those we announce in this opinion, but finally rested its decision
upon the conditions which existed in the territory, and the circumstances of
terror and danger which accompanied the crime denounced. So also may we
mention the legislation of some of the states, enlarging the common law
definition of burglary, and dividing it into degrees, fixing a severer
punishment for that committed in the night-time from that committed in the
daytime, and for arson of buildings in which human beings may be from arson
of buildings which may be
Page 217 U. S. 380
vacant. In all such cases, there is something more to give character and degree
to the crimes than the seeking of a felonious gain, and it may properly become
an element in the measure of their punishment.
From this comment we turn back to the law in controversy. Its character and
the sentence in this case may be illustrated by examples even better than it
can be represented by words. There are degrees of homicide that are not
punished so severely, nor are the following crimes: misprision of treason,
inciting rebellion, conspiracy to destroy the government by force, recruiting
soldiers in the United States to fight against the United States, forgery of
letters patent, forgery of bonds and other instruments for the purpose of
defrauding the United States, robbery, larceny, and other crimes. Section 86
of the Penal Laws of the United States, as revised and amended by the act of
Congress of March 4, 1909 (35 Stat. 1088), provides that any person charged
with the payment of any appropriation made by Congress, who shall pay to
any clerk or other employee of the United States a sum less than that provided
by law, and require a receipt for a sum greater than that paid to and received
by him, shall be guilty of embezzlement, and shall be fined in double the
amount so withheld, and imprisoned not more than two years. The offense
described has similarity to the offense for which Weems was convicted, but
the punishment provided for it is in great contrast to the penalties of cadena
temporal and its "accessories." If we turn to the legislation of the Philippine
Commission, we find that, instead of the penalties of cadena temporal,
medium degree (fourteen years, eight months, and one day, to seventeen
years and four months, with fine and "accessories"), to cadena perpetua, fixed
by the Spanish Penal Code for the falsification of bank notes and other
instruments authorized by the law of the kingdom, it is provided that the
forgery of or counterfeiting the obligations or securities of the United States
or of the Philippine Islands shall be punished by a fine of not more than
10,000 pesos and by imprisonment of not more than
Page 217 U. S. 381
fifteen years. In other words, the highest punishment possible for a crime
which may cause the loss of many thousand of dollars, and to prevent which
the duty of the state should be as eager as to prevent the perversion of truth
in a public document, is not greater than that which may be imposed for
falsifying a single item of a public account. And this contrast shows more
than different exercises of legislative judgment. It is greater than that. It
condemns the sentence in this case as cruel and unusual. It exhibits a
difference between unrestrained power and that which is exercised under the
spirit of constitutional limitations formed to establish justice. The state
thereby suffers nothing, and loses no power. The purpose of punishment is
fulfilled, crime is repressed by penalties of just, not tormenting, severity, its
repetition is prevented, and hope is given for the reformation of the criminal.
It is suggested that the provision for imprisonment in the Philippine Code is
separable from the accessory punishment, and that the latter may be declared
illegal, leaving the former to have application. United States v. Pridgeon, 153
U. S. 48, is referred to. The proposition decided in that case was that,
"where a court has jurisdiction of the person and of the offense, the imposition
of a sentence in excess of what the law permits does not render the legal or
authorized portion of the sentence void, but only leaves such portion of the
sentence as may be in excess open to question and attack."
This proposition is not applicable to the case at bar. The imprisonment and
the accessories were in accordance with the law. They were not in excess of
it, but were positively required by it. It is provided in Article 106, as we have
seen, that those sentenced to cadena temporal shall labor for the benefit of the
state; shall always carry a chain at the ankle, hanging from the wrist; shall be
employed at hard and painful labor; shall receive no assistance whatsoever
from without the penal institutions. And it is provided in Article 56 that the
penalty of cadena temporal shall include the accessory penalties.
In In Re Graham, 138 U. S. 461, it was recognized to be
250

"the
Page 217 U. S. 382
general rule that a judgment rendered by a court in a criminal case must
conform strictly to the statute, and that any variation from its provisions,
either in the character or the extent of punishment inflicted, renders the
judgment absolutely void."
In Ex parte Karstendick, 93 U. S. 396, 93 U. S. 399, it was said:
"In cases where the statute makes hard labor a part of the punishment, it is
imperative upon the court to include that in its sentence."
A similar view was expressed in In Re Mills, 135 U. S. 263, 135 U. S. 266.
It was recognized in United States v. Pridgeon and the cases quoted which
sustained it.
The Philippine Code unites the penalties of cadena temporal, principal and
accessory, and it is not in our power to separate them, even if they are
separable, unless their independence is such that we can say that their union
was not made imperative by the legislature. Employers' Liability Cases, 207
U. S. 463. This certainly cannot be said of the Philippine Code, as a Spanish
enactment, and the order putting it into effect in the islands did not attempt to
destroy the unity of its provisions or the effect of that unity. In other words,
it was put into force as it existed, with all its provisions dependent. We
cannot, therefore, declare them separable.
It follows from these views that, even if the minimum penalty of cadena
temporal had been imposed, it would have been repugnant to the Bill of
Rights. In other words, the fault is in the law; and, as we are pointed to no
other under which a sentence can be imposed, the judgment must be reversed,
with directions to dismiss the proceedings.
So ordered.
MR. JUSTICE LURTON, not being a member of the court when this case
was argued, took no part in its decision.
* This case was argued before seven Justices, MR. JUSTICE MOODY being
absent on account of sickness and MR. JUSTICE LURTON not then having
taken his sear. MR. JUSTICE BREWER died before the opinion was
delivered. MR. JUSTICE McKENNA delivered the opinion of the court,
THE CHIEF JUSTICE, MR. JUSTICE HARLAN, and MR.. JUSTICE DAY
concurring with him. MR. JUSTICE WHITE delivered a dissenting opinion
(p. 217 U. S. 382, post), MR. HUSTICE HOLMES concurring with him.
*
"Rule 35. Assignment of Errors."
"1. Where an appeal or a writ of error is taken from a District Court or a
Circuit Court direct to this court, under § 5 of the act entitled 'An act to
establish Circuit Courts of Appeals and to define and regulate in certain cases
the jurisdiction of the courts of the United States, and for other purposes,'
approved March 3, 1891, the plaintiff in error or appellant shall file with the
clerk of the court below, with his petition for the writ of error or appeal, an
assignment of errors, which shall set out separately and particularly each error
asserted and intended to be urged. No writ of error or appeal shall be allowed
until such assignment of errors shall have been filed. When the error alleged
is to the admission or to the rejection of evidence, the assignment of errors
shall quote the full substance of the evidence admitted or rejected. When the
error alleged is to the charge of the court, the assignment of errors shall set
out the part referred to totidem verbis, whether it be in instructions given or
in instructions refused. Such assignment of errors shall form part of the
transcript of the record, and be printed with it. When this is not done, counsel
will not be heard, except at the request of the court; and errors not assigned
according to this rule will be disregarded, but the court, at its option, may
notice a plain error not assigned."
"2. The plaintiff in error or appellant shall cause the record to be printed,
according to the provisions of §§ 2, 3, 4, 5, 6, and 8 of Rule 10."
For this and all rules of the Supreme Court of the United States, see Appendix,
210 U.S.
MR. JUSTICE WHITE, dissenting:
251
The Philippine law made criminal the entry in a public record by a public
official of a knowingly false statement. The
Page 217 U. S. 383
punishment prescribed for violating this law was fine and imprisonment in a
penal institution at hard and painful labor for a period ranging from twelve
years and a day to twenty years, the prisoner being subjected, as accessories
to the main punishment, to carrying during his imprisonment a chain at the
ankle, hanging from the wrist, deprivation during the term of imprisonment
of civil rights, and subjection, besides, to perpetual disqualification to enjoy
political rights, hold office, etc., and, after discharge, to the surveillance of
the authorities. The plaintiff in error, having been convicted of a violation of
this law, was sentenced to pay a small fine and to undergo imprisonment for
fifteen years, with the resulting accessory punishments above referred to.
Neither at the trial in the court of first instance nor in the Supreme Court of
the Philippine Islands was any question raised concerning the repugnancy of
the statute defining the crime and fixing its punishment to the provision of
the Philippine Bill of Rights, forbidding cruel and unusual punishment.
Indeed, no question on that subject was even indirectly referred to in the
assignments of error filed in the court below for the purpose of this writ of
error. In the brief of counsel, however, in this court, the contention was made
that the sentence was void, because the term of imprisonment was a cruel and
unusual one, and therefore repugnant to the Bill of Rights. Deeming this
contention to be of such supreme importance as to require it to be passed
upon, although not raised below, the court now holds that the statute, because
of the punishment which it prescribes, was repugnant to the Bill of Rights,
and therefore void, and, for this reason alone, reverses and remands with
directions to discharge.
The Philippine Bill of Rights, which is construed and applied, is identical
with the cruel and unusual punishment clause of the Eighth Amendment.
Because of this identity, it is now decided that it is necessary to give to the
Philippine Bill of Rights the meaning properly attributable to the provision
on the same subject found in the Eighth Amendment, as, in using the language
of that Amendment in the statute, it is to be
Page 217 U. S. 384
presumed that Congress intended to give to the words their constitutional
significance. The ruling now made, therefore, is an interpretation of the
Eighth Amendment, and announces the limitation which that Amendment
imposes on Congress when exercising its legislative authority to define and
punish crime. The great importance of the decision is hence obvious.
Of course, in every case where punishment is inflicted for the commission of
crime, if the suffering of the punishment by the wrongdoer be alone regarded,
the sense of compassion aroused would mislead and render the performance
of judicial duty impossible. And it is to be conceded that this natural conflict
between the sense of commiseration and the commands of duty is augmented
when the nature of the crime defined by the Philippine law and the
punishment which that law prescribes are only abstractly considered, since
the impression is at once produced that the legislative authority has been
severely exerted. I say only abstractly considered because the first impression
produced by the merely abstract view of the subject is met by the admonition
that the duty of defining and punishing crime has never, in any civilized
country, been exerted upon mere abstract considerations of the inherent
nature of the crime punished, but has always involved the most practical
consideration of the tendency at a particular time to commit certain crimes,
of the difficulty of repressing the same, and of how far it is necessary to
impose stern remedies to prevent the commission of such crimes. And, of
course, as these considerations involve the necessity for a familiarity with
local conditions in the Philippine Islands which I do not possess, such want
of knowledge at once additionally admonishes me of the wrong to arise from
forming a judgment upon insufficient data, or without a knowledge of the
subject matter upon which the judgment is to be exerted. Strength, indeed, is
added to this last suggestion by the fact that no question concerning the
subject was raised in the courts below or there considered, and therefore no
opportunity was afforded those courts, presumably, at least, relatively
familiar with the local
Page 217 U. S. 385
conditions, to express their views as to the considerations which may have
led to the prescribing of the punishment in question. Turning aside, therefore,
from mere emotional tendencies, and guiding my judgment alone by the aid
of the reason at my command, I am unable to agree with the ruling of the
court. As, in my opinion, that ruling rests upon an interpretation of the cruel
and unusual punishment clause of the Eighth Amendment, never before
252
announced, which is repugnant to the natural import of the language
employed in the clause, and which interpretation curtails the legislative power
of Congress to define and punish crime by asserting a right of judicial
supervision over the exertion of that power, in disregard of the distinction
between the legislative and judicial department of the government, I deem it
my duty to dissent and state my reasons.
To perform this duty requires at the outset a precise statement of the
construction given by the ruling now made to the provision of the Eighth
Amendment. My inability to do this must, however, be confessed, because I
find it impossible to fix with precision the meaning which the court gives to
that provision. Not for the purpose of criticizing, but solely in order to
indicate my perplexity on the subject, the reasons for my doubt are briefly
given. Thus, to my mind, it appears as follows: First. That the court interprets
the inhibition against cruel and unusual punishment as imposing upon
Congress the duty of proportioning punishment according to the nature of the
crime, and casts upon the judiciary the duty of determining whether
punishments have been properly apportioned in a particular statute, and if not,
to decline to enforce it. This seems to me to be the case because of the
reference made by the court to the harshness of the principal punishment
(imprisonment), and its comments as to what it deems to be the severity, if
not inhumanity, of the accessories which result from or accompany it, and the
declaration in substance that these things offend against the just principle of
proportioning punishment to the nature of the crime punished, stated to be a
Page 217 U. S. 386
fundamental precept of justice and of American criminal law. That this is the
view now upheld, it seems to me, is additionally demonstrated by the fact that
the punishment for the crime in question, as imposed by the Philippine law,
is compared with other Philippine punishments for crimes deemed to be less
heinous, and the conclusion is deduced that this fact, in and of itself, serves
to establish that the punishment imposed in this case is an exertion of
unrestrained power, condemned by the cruel and unusual punishment clause.
Second. That this duty of apportionment compels not only that the lawmaking
power should adequately apportion punishment for the crimes as to which it
legislates, but also further exacts that the performance of the duty of
apportionment must be discharged by taking into view the standards, whether
lenient or severe, existing in other and distinct jurisdictions; and that a failure
to do so authorizes the courts to consider such standards in their discretion,
and judge of the validity of the law accordingly. I say this because, although
the court expressly declares in the opinion, when considering a case decided
by the highest court of one of the territories of the United States, that the
legislative power to define and punish crime committed in a territory, for the
purpose of the Eighth Amendment, is separate and distinct from the
legislation of Congress, yet, in testing the validity of the punishment affixed
by the law here in question, proceeds to measure it not alone by the Philippine
legislation, but by the provisions of several acts of Congress punishing crime,
and in substance declares such congressional laws to be a proper standard,
and in effect holds that the greater proportionate punishment inflicted by the
Philippine law over the more lenient punishments prescribed in the laws of
Congress establishes that the Philippine law is repugnant to the Eighth
Amendment.
Third. That the cruel and unusual punishment clause of the Eighth
Amendment controls not only the exertion of legislative power as to modes
of punishment, proportionate or otherwise, but addresses itself also to the
mainspring of the
Page 217 U. S. 387
legislative motives in enacting legislation punishing crime in a particular
case, and therefore confers upon courts the power to refuse to enforce a
particular law defining and punishing crime, if, in their opinion, such law
does not manifest that the lawmaking power, in fixing the punishment, was
sufficiently impelled by a purpose to effect a reformation of the criminal. This
is said because of the statements contained in the opinion of the court as to
the legislative duty to shape legislation not only with a view to punish, but to
reform the criminal, and the inferences which I deduce that it is conceived
that the failure to do so is a violation of constitutional duty.
Fourth. That the cruel and unusual punishment clause does not merely limit
the legislative power to fix the punishment for crime by excepting out of that
authority the right to impose bodily punishments of a cruel kind, in the strict
acceptation of those terms, but limits the legislative discretion in determining
to what degree of severity an appropriate and usual mode of punishment may,
in a particular case, be inflicted, and therefore endows the courts with the
right to supervise the exercise of legislative discretion as to the adequacy of
punishment, even although resort is had only to authorized kinds of
253
punishment, thereby endowing the courts with the power to refuse to enforce
laws punishing crime, if, in the judicial judgment, the legislative branch of
the government has prescribed a too severe punishment.
Not being able to assent to these, as it to me seems, in some respects
conflicting, or, at all events, widely divergent, propositions, I shall consider
them all as sanctioned by the interpretation now given to the prohibition of
the Eighth Amendment, and with this conception in mind shall consider the
subject.
Before approaching the text of the Eighth Amendment to determine its true
meaning, let me briefly point out why, in my opinion, it cannot have the
significance which it must receive to sustain the propositions rested upon it.
In the first place, if it be that the lawmaker, in defining and punishing crime,
is imperatively restrained by constitutional provisions to apportion
Page 217 U. S. 388
punishment by a consideration alone of the abstract heinousness of the
offenses punished, it must result that the power is so circumscribed as to be
impossible of execution; or, at all events, is so restricted as to exclude the
possibility of taking into account, in defining and punishing crime, all those
considerations concerning the condition of society, the tendency to commit
the particular crime, the difficulty of detecting the same, the necessity for
resorting to stern measures of repression, and various other subjects which
have, at all times, been deemed essential to be weighed in defining and
punishing crime. And certainly the paralysis of the discretion vested in the
lawmaking authority which the propositions accomplish is immeasurably
magnified when it is considered that this duty of proportioning punishment
requires the taking into account of the standards prevailing in other or
different countries or jurisdictions, thereby at once exacting that legislation
on the subject of crime must be proportioned not to the conditions to which
it is intended to apply, but must be based upon conditions with which the
legislation, when enacted, will have no relation or concern whatever. And
when it is considered that the propositions go further, and insist that, if the
legislation seems to the judicial mind not to have been sufficiently impelled
by motives of reformation of the criminal, such legislation defining and
punishing crime is to be held repugnant to constitutional limitations, the
impotency of the legislative power to define and punish crime is made
manifest. When to this result is added the consideration that the interpretation,
by its necessary effect, does not simply cause the cruel and unusual
punishment clause to carve out of the domain of legislative authority the
power to resort to prohibited kinds of punishments, but subjects to judicial
control the degree of severity with which authorized modes of punishment
may be inflicted, it seems to me that the demonstration is conclusive that
nothing will be left of the independent legislative power to punish and define
crime, if the interpretation now made be pushed in future application to its
logical conclusion.
Page 217 U. S. 389
But let me come to the Eighth Amendment, for the purpose of stating why
the clause in question does not, in my opinion, authorize the deductions
drawn from it, and therefore does not sanction the ruling now made.
I shall consider the Amendment a as to its origin in the mother country, and
the meaning there given to it prior to the American Revolution; b its migration
and existence in the states after the Revolution, and prior to the adoption of
the Constitution; c its incorporation into the Constitution, and the
construction given to it in practice from the beginning to this time; and d the
judicial interpretation which it has received, associated with the construction
affixed, both in practice and judicially, to the same provision found in various
state constitutions or Bills of Rights.
Without going into unnecessary historical detail, it is sufficient to point out,
as did the court in In re Kemmler, 136 U. S. 436, 136 U. S. 446, that
"the provision in reference to cruel and unusual punishments was taken from
the well known act of Parliament of 1688 [1689?], entitled 'An Act Declaring
the Rights and Liberties of the Subject, and Settling the Succession of the
Crown.'"
And this act, it is to be observed, was but in regular form a crystallization of
the Declaration of Rights of the same year. 3 Hallam, Const. Hist. p. 106. It
is also certain, as declared in the Kemmler case, that "this Declaration of
Rights had reference to the acts of the executive and judicial departments of
the government of England," since it but embodied the grievances which it
was deemed had been suffered by the usurpations of the Crown and
transgressions of authority by the courts. In the recitals both of the
Declaration of Rights and the Bill of Rights, the grievances complained of
254
were that illegal and cruel punishments had been inflicted, "which are utterly
and directly contrary to the known laws and statutes and freedom of this
realm;" while, in both the Declaration and the Bill of Rights, the remedy
formulated was a declaration against the infliction of cruel and unusual
punishments.
Whatever may be the difficulty, if any, in fixing the meaning
Page 217 U. S. 390
of the prohibition at its origin, it may not be doubted, and indeed is not
questioned by anyone, that the cruel punishments against which the Bill of
Rights provided were the atrocious, sanguinary, and inhuman punishments
which had been inflicted in the past upon the persons of criminals. This being
certain, the difficulty of interpretation, if any, is involved in determining what
was intended by the unusual punishments referred to and which were
provided against. Light, however, on this subject, is at once afforded by
observing that the unusual punishments provided against were responsive to
and obviously considered to be the illegal punishments complained of. These
complaints were, first, that customary modes of bodily punishments, such as
whipping and the pillory, had, under the exercise of judicial discretion, been
applied to so unusual a degree as to cause them to be illegal; and, second,
that, in some cases, an authority to sentence to perpetual imprisonment had
been exerted under the assumption that power to do so resulted from the
existence of judicial discretion to sentence to imprisonment when it was
unusual, and therefore illegal, to inflict life imprisonment in the absence of
express legislative authority. In other words, the prohibitions, although
conjunctively stated, were really disjunctive, and embraced braced as
follows: a prohibitions against a resort to the inhuman bodily punishments of
the past; b or, where certain bodily punishments were customary, a
prohibition against their infliction to such an extent as to be unusual and
consequently illegal; c or the infliction, under the assumption of the exercise
of judicial discretion, of unusual punishments not bodily, which could not be
imposed except by express statute, or which were wholly beyond the
jurisdiction of the court to impose.
The scope and power of the guaranty as we have thus stated it will be found
portrayed in the reasons assigned by the members of the House of Lords who
dissented against two judgments for perjury entered in the King's bench
against Titus Oates. 10 How.St.Tr. col. 1325.
Page 217 U. S. 391
The judgments and the dissenting reasons are copied in the margin. [Footnote
1]
As well the dissent referred to as the report of the conferees
Page 217 U. S. 392
on the part of the House of Commons, made to that body concerning a bill to
set aside the judgments against Oates above referred to (5 Cobbett's
Parl.History, col. 386), proceeded upon the identity of what was deemed to
be the illegal practices complained of, and which were intended to be rectified
by the prohibition against cruel and unusual punishments,
Page 217 U. S. 393
made in the Declaration of Rights, and treated that prohibition, as already
stated, as substantially disjunctive, and as forbidding the doing of the things
we have above enumerated. See, for the disjunctive character of the
provision, Stephen, Com.Law Eng. 15th ed. p. 379.
When the origin and purpose of the Declaration and the Bill of Rights is thus
fixed, it becomes clear that that Declaration is not susceptible of the meaning
now attributed to the same language found in the Constitution of the United
States. That in England it was nowhere deemed that any theory of
proportional punishment was suggested by the Bill of Rights, or that a protest
was thereby intended against the severity of punishments, speaking generally,
is demonstrated by the practice which prevailed in England as to punishing
crime from the time of the Bill of Rights to the time of the American
Revolution. Speaking on this subject, Stephen, in his history of the criminal
law of England, vol. 1, pp. 470, 471, says:
"The severity of the criminal law was greatly increased all through the
eighteenth century by the creation of new felonies without benefit of clergy.
. . . However, after making all deductions on these grounds, there can be no
doubt that the legislation of the eighteenth century in criminal matters was
severe to the highest degree, and destitute of any sort of principal or system."
255
For the sake of brevity, a review of the practises which prevailed in the
colonial period will not be referred to. Therefore, attention is at once directed
to the express guaranties in certain of the state constitutions adopted after the
Declaration of Independence, and prior to the formation of the Constitution
of the United States, and the circumstances connected with the subsequent
adoption of the Eighth Amendment.
In 1776, Maryland, in a Bill of Rights, declared (1 Charters and Constitutions,
pp. 818, 819):
"XIV. That sanguinary laws ought to be avoided, as far as is consistent with
the safety of the state; and no law to inflict
Page 217 U. S. 394
cruel and unusual pains and penalties ought to be made in any case, or at any
time hereafter."
"XXII. That excessive bail ought not to be required, nor excessive fines
imposed, nor cruel or unusual punishments inflicted, by the courts of law."
The Constitution of North Carolina of 1776, in general terms prohibited the
infliction of "cruel or unusual punishments."
Virginia, by § 9 of the Bill of Rights adopted in 1776, provided as follows:
"That excessive bail ought not to be required, nor excessive fines imposed,
nor cruel and unusual punishments inflicted."
In the Massachusetts Declaration of Rights of 1780, a direct prohibition was
placed upon the infliction by magistrates or courts of cruel or unusual
punishments, the provision being as follows:
"Art. XXVI. No magistrate or court of law shall demand excessive bail or
sureties, impose excessive fines, or inflict cruel or unusual punishments."
The Declaration of Rights of New Hampshire, of 1784, was as follows:
"XVIII. All penalties ought to be proportioned to the nature of the offense.
No wise legislature will affix the same punishment to the crimes of theft,
forgery, and the like, which they do to those of murder and treason; where
the same undistinguishing severity is exerted against all offense, the people
are led to forget the real distinction in the crimes themselves, and to commit
the most flagrant with as little compunction as they do those of the lightest
dye. For the same reason, a multitude of sanguinary laws is both impolitic
and unjust. The true design of all punishments being to reform, not to
exterminate, mankind."
"XXXIII. No magistrate or court of law shall demand excessive bail or
sureties, impose excessive fines, or inflict cruel or unusual punishments."
The substantial identity between the provisions of these several constitutions
or Bills of Rights shows beyond doubt that
Page 217 U. S. 395
their meaning was understood; that is to say, that the significance attributed
to them in the mother country as the result of the Bill of Rights of 1689 was
appreciated, and that it was intended, in using the identical words, to give
them the same well understood meaning. It is to be observed that the New
Hampshire Bill of Rights contains a clause admonishing as to the wisdom of
the apportionment of punishment of crime according to the nature of the
offense, but in marked contrast to the reenactment, in express and positive
terms, of the cruel and unusual punishment clause of the English Bill of
Rights, the provision as to apportionment is merely advisory, additionally
demonstrating the precise and accurate conception then entertained of the
nature and character of the prohibition adopted from the English Bill of
Rights.
Undoubtedly, in the American states, prior to the formation of the
Constitution, the necessity for the protection afforded by the cruel and
unusual punishment guaranty of the English Bill of Rights had ceased to be a
matter of concern, because, as a rule, the cruel bodily punishments of former
times were no longer imposed, and judges, where moderate bodily
punishment was usual, had not, under the guise of discretion, directed the
infliction of such punishments to so unusual a degree as to transcend the
limits of discretion and cause the punishment to he illegal, and had also not
attempted, in virtue of mere discretion, to inflict such unusual and extreme
punishments as had always been deemed proper to be inflicted only as the
result of express statutory authority. Despite these considerations, it is true
256
that some of the solicitude which arose after the submission of the
Constitution for ratification, and which threatened to delay or prevent such
ratification, in part, at least, was occasioned by the failure to guarantee against
the infliction of cruel and unusual punishments. Thus, in the Massachusetts
convention, Mr. Holmes, discussing the general result of the judicial powers
conferred by the Constitution, and referring to the right of Congress to define
and fix the punishment for crime, said (2 Elliot, Debates, 111):
Page 217 U. S. 396
"They are nowhere restrained from inventing the most cruel and unheared-of
punishments, and annexing them to crimes; and there is no constitutional
check on them, but that racks and gibbets may be amongst the most mild
instruments of their discipline."
That the opposition to the ratification in the Virginia convention was
earnestly and eloquently voiced by Patrick Henry is too well known to require
anything but statement. That the absence of a guaranty against cruel and
unusual punishment was one of the causes of the solicitude by which Henry
was possessed is shown by the debates in that convention. Thus, Patrick
Henry said (3 Elliot, Debates, 447):
"In this business of legislation, your members of Congress will lose the
restriction of not imposing excessive fines, demanding excessive bail, and
inflicting cruel and unusual punishments. These are prohibited by your
Declaration of Rights. What has distinguished our ancestors? That they would
not admit of tortures, or cruel and barbarous punishment. But Congress may
introduce the practice of the civil law, in preference to that of the common
law. They may introduce the practice of France, Spain, and Germany -- of
torturing to extort a confession of the crime. They will say that they might as
well draw examples from those countries as from Great Britain, and they will
tell you that there is such a necessity of strengthening the arm of government
that they must have a criminal equity, and extort confession by torture, in
order to punish with still more relentless severity. We are then lost and
undone. And can any man think it troublesome when he can, by a small
interference, prevent our rights from being lost? If you will, like the Virginian
government, give them knowledge of the extent of the rights retained by the
people, and the powers of themselves, they will, if they be honest men, thank
you for it. Will they not wish to go on sure grounds? But, if you leave them
otherwise, they will not know how to proceed; and, being in a state of
uncertainty, they will assume, rather than give up, powers by implication. "
Page 217 U. S. 397
These observations, it is plainly to be seen, were addressed to the fear of the
repetition, either by the sanction of law or by the practice of courts, of the
barbarous modes of bodily punishment or torture, the protest against which
was embodied in the Bill of Rights in 1689.
The ultimate recognition by Henry of the patriotic duty to ratify the
Constitution and trust to the subsequent adoption of a Bill of Rights, the
submission and adoption of the first ten Amendments as a Bill of Rights,
which followed ratification, the connection of Mr. Madison with the drafting
of the amendments, and the fact that the Eighth Amendment is in the precise
words of the guaranty on that subject in the Virginia Bill of Rights, would
seem to make it perfectly clear that it was only intended by that Amendment
to remedy the wrongs which had been provided against in the English Bill of
Rights, and which were likewise provided against in the Virginia provision,
and therefore was intended to guard against the evils so vividly portrayed by
Henry in the debate which we have quoted. That this was the common
understanding which must have existed on the subject is plainly to be inferred
from the fact that the Eighth Amendment was substantially submitted by
Congress without any debate on the subject. 2 Lloyd's Debates, 225. Of
course, in view of the nature and character of the government which the
Constitution called into being, the incorporation of the Eighth Amendment
caused its provisions to operate a direct and controlling prohibition upon the
legislative branch (as well as all other departments), restraining it from
authorizing or directing the infliction of the cruel bodily punishments of the
past, which was one of the evils sought to be prevented for the future by the
English Bill of Rights, and also restrained the courts from exerting and
Congress from empowering them, to select and exert by way of discretion
modes of punishment which were not usual, or usual modes of punishment to
a degree not usual, and which could alone be imposed by express authority
of law. But this obvious result lends no
Page 217 U. S. 398
support to the theory that the adoption of the Amendment operated or was
intended to prevent the legislative branch of the government from
257
prescribing, according to its conception of what public policy required, such
punishments, severe or otherwise, as it deemed necessary for the prevention
of crime, provided, only, resort was not had to the infliction of bodily
punishments of a cruel and barbarous character, against which the
Amendment expressly provided. Not to so conclude is to hold that because
the Amendment, in addition to depriving the lawmaking power of the right to
authorize the infliction of cruel bodily punishments, had restricted the courts,
where discretion was possessed by them, from exerting the power to punish
by a mode or in a manner so unusual as to require legislative sanction, it
thereby deprived Congress of the power to sanction the punishments which
the Amendment forbade being imposed, merely because they were not
sanctioned. In other words, that because the power was denied to the judiciary
to do certain things without legislative authority, thereby the right on the part
of the legislature to confer the authority was taken away. And this impossible
conclusion would lead to the equally impossible result that the effect of the
Amendment was to deprive Congress of its legitimate authority to punish
crime, by prescribing such modes of punishment, even although not before
employed, as were appropriate for the purpose.
That no such meaning as is now ascribed to the Amendment was attributed
to it at the time of its adoption is shown by the fact that not a single suggestion
that it had such a meaning is pointed to, and that, on the other hand, the
practice from the very beginning shows directly to the contrary, and
demonstrates that the very Congress that adopted the Amendment construed
it in practice as I have construed it. This is so since the first crimes act of the
United States prescribed punishments for crime utterly without reference to
any assumed rule of proportion, or of a conception of a right in the judiciary
to supervise the action of Congress in respect to
Page 217 U. S. 399
the severity of punishment, excluding, always, the right to impose as a
punishment the cruel bodily punishments which were prohibited. What
clearer demonstration can there be of this than the statement made by this
court in Ex parte Wilson, 114 U. S. 427, of the nature of the first crimes act,
as follows:
"By the first crimes act of the United States, forgery of public securities, or
knowingly uttering forged public securities with intent to defraud, as well as
treason, murder, piracy, mutiny, robbery, or rescue of a person convicted of
a capital crime, was punishable with death; most other offenses were
punished by fine and imprisonment; whipping was part of the punishment of
stealing or falsifying records, fraudulently acknowledging bail, larceny of
goods, or receiving stolen goods; disqualification to hold office was part of
the punishment of bribery; and those convicted of perjury or subornation of
perjury, besides being fined and imprisoned, were to stand in the pillory for
one hour, and rendered incapable of testifying in any court of the United
States. Act of April 30, 1790, chap. 9, 1 Stat. 112-117; Mr. Justice Wilson's
Charge to the Grand Jury in 1791, 3 Wilson's Works, 380, 381."
And it is, I think, beyond power even of question that the legislation of
Congress, from the date of the first crimes act to the present time, but
exemplifies the truth of what has been said, since that legislation from time
to time altered modes of punishment, increasing or diminishing the amount
of punishment, as was deemed necessary for the public good, prescribing
punishments of a new character, without reference to any assumed rule of
apportionment, or the conception that a right of judicial supervision was
deemed to obtain. It is impossible with any regard for brevity to demonstrate
these statements by many illustrations. But let me give a sample from
legislation enacted by Congress of the change of punishment. By § 14 of the
first crimes act (Act April 30, 1790, chap. 9, 1 Stat. 115), forgery, etc., of the
public securities of the United States, or the knowingly uttering
Page 217 U. S. 400
and offering for sale of forged or counterfeited securities of the United States
with intent to defraud, was made punishable by death. The punishment now
is a fine of not more than $5,000, and imprisonment at hard labor for not more
than fifteen years. Rev.Stat. § 5414.
By the first crimes act, also, as in numerous others since that time, various
additional punishments for the commission of crime were imposed,
prescribing disqualification to hold office, to be a witness in the courts, etc.,
and, as late as 1865, a law was enacted by Congress which prescribed as a
punishment for crime the disqualification to enjoy rights of citizenship.
Rev.Stat. §§ 1996, 1997, 1998.
Comprehensively looking at the rulings of this court, [Footnote 2] it may be
conceded that hitherto they have not definitely interpreted the precise
meaning of the clause in question, because, in most of the cases in which the
258
protection of the Amendment has been invoked, the cases came from courts
of last resorts of states, and the opinions leave room for the contention that
they proceeded upon the implied assumption that the Eighth Amendment did
not govern the states, by virtue of the adoption of the 14th Amendment.
However, in Wilkerson v. Utah, 99 U.S. 130, a case coming to this court from
the territory of Utah, the meaning of the clause of the Eighth Amendment in
question came directly under review. The question for decision was whether
a sentence to death by shooting, which had been imposed by the court under
the assumed exercise of a discretionary power to fix the mode of execution
of the sentence, was repugnant to the clause. While the court, in deciding that
it was not, did not undertake to fully interpret the meaning of the clause, it
nevertheless, reasoning by exclusion, expressly negatived the construction
now placed upon it. It was said (pp. 99 U. S. 135-136):
Page 217 U. S. 401
"Difficulty would attend the effort to define with exactness the extent of the
constitutional provision which provides that cruel and unusual punishments
shall not be inflicted; but it is safe to affirm that punishments of torture, such
as those mentioned by the commentator referred to, and all others in the same
line of unnecessary cruelty, are forbidden by that Amendment to the
Constitution. Cooley, Const.Lim. 4th ed. 408; Wharton, Crim.Law, 7th ed. §
3405."
And it was doubtless this ruling which caused the court subsequently to say
in In re Kemmler, 136 U. S. 436, 136 U. S. 447:
"Punishments are cruel when they involve torture or a lingering death; but the
punishment of death is not cruel within the meaning of that word as used in
the Constitution. It implies there something inhuman and barbarous,
something more than the mere extinguishment of life."
Generally viewing the action of the states in their Bills of Rights as to the
prohibition against inhuman or cruel and unusual punishments, it is true to
say that those provisions substantially conform to the English Bill of Rights
and to the provision of the Eighth Amendment we are considering, some
using the expression "cruel and unusual," others the more accurate expression
"cruel or unusual," and some "cruel" only, and, in a few instances, a provision
requiring punishments to be proportioned to the nature of the offense is added
to the inhibition against cruel and unusual punishments. In one (Illinois), the
prohibition against cruel and unusual punishments is not expressed, although
proportional punishment is commanded; yet in Kelly v. State, 115 Ill. 583,
discussing the extent of punishment inflicted by a criminal statute, the
Supreme Court of Illinois declared that "it would not be for the court to say
the penalty was not proportioned to the nature of the offense." In another state
(Ohio), where, in the early constitution of the state, proportionate punishment
was conjoined with the cruel and unusual punishment provision, the
proportionate provision was omitted in a later constitution.
Page 217 U. S. 402
Here again, it is true to say, time forbidding my indulging in a review of the
statutes, that the legislation of all the states is absolutely in conflict with and
repugnant to the construction now given to the clause, since that legislation
but exemplifies the exertion of legislative power to define and punish crime
according to the legislative conception of the necessities of the situation,
without the slightest indication of the assumed duty to proportion
punishments, and without the suggestion of the existence of judicial power to
control the legislative discretion, provided only that the cruel bodily
punishments forbidden were not resorted to. And the decisions of the state
courts of last resort, it seems to me, with absolute uniformity, and without a
single exception from the beginning, proceed upon this conception. It is true
that, when the reasoning employed in the various cases in critically examined,
a difference of conception will be manifested as to the occasion for the
adoption of the English Bill of Rights and of the remedy which it provided.
Generally speaking, when carefully analyzed, it will be seen that this
difference was occasioned by treating the provision against cruel and unusual
punishment as conjunctive, instead of disjunctive, thereby overlooking the
fact, which I think has been previously demonstrated to be the case, that the
term "unusual," as used in the clause, was not a qualification of the provision
against cruel punishments, but was simply synonymous with illegal, and was
mainly intended to restrain the courts, under the guise of discretion, from
indulging in an unusual and consequently illegal exertion of power. Certain
it is, however, whatever may be these differences of reasoning, there stands
out in bold relief in the state cases, as it is given to me to understand them,
without a single exception, the clear and certain exclusion of any prohibition
upon the lawmaking power to determine the adequacy with which crime shall
be punished, provided only the cruel bodily punishments of the past are not
resorted to. Let me briefly refer to some of the cases.
259
Page 217 U. S. 403
In Aldridge v. Commonwealth, 2 Va.Cases 447, decided about twenty years
after the ratification of the Eighth Amendment, speaking concerning the evils
to which the guaranty of the Virginia Bill of Rights against cruel and unusual
punishments was addressed, the court, after referring to the punishments
usually applicable in that state to crime at the time of the adoption of the Bill
of Rights of Virginia, said (p. 450):
"We consider these sanctions as sufficiently rigorous, and we knew that the
best heads and hearts of the land of our ancestors had long and loudly
declaimed against the wanton cruelty of many of the punishments practised
in other countries; and this section in the Bill of Rights was framed effectually
to exclude these, so that no future legislature, in a moment, perhaps, of great
and general excitement, should be tempted to disgrace our Code by the
introduction of any of those odious modes of punishment."
And, four years later, in 1828, applying the same doctrine in Commonwealth
v. Wyatt, 6 Rand. 694, where a punishment by whipping was challenged as
contrary to the Virginia Bill of Rights, the court said (p. 700): "The
punishment of offenses by stripes is certainly odious, but cannot be said to be
unusual."
Until 1865, there was no provision in the Constitution of Georgia expressly
guaranteeing against cruel and unusual punishments. The Constitution of that
year, however, contained a clause identical in terms with the Eighth
Amendment, and the scope of the guaranty arose for decision in 1872 in
Whitten v. State, 47 Ga. 297. The case was this: upon a conviction for assault
and battery, Whitten had been sentenced to imprisonment or the payment of
a fine of $250 and costs. The contention was that this sentence was so
disproportionate to the offense committed as to be cruel and unusual and
repugnant to the guaranty. In one of its immediate aspects, the case involved
the guaranty against excessive fines; but, as the imprisonment was the
coercive means for the payment of the fine, in that aspect, the case
Page 217 U. S. 404
involved the cruel and unusual punishment clause, and the court so
considered; and, in coming to interpret the clause, said (p. 301):
"Whether the law is unconstitutional, a violation of that article of the
Constitution which declares excessive fines shall not be imposed nor cruel
and unusual punishments inflicted, is another question. The latter clause was,
doubtless, intended to prohibit the barbarities of quartering, hanging in
chains, castration, etc. When adopted by the framers of the Constitution of
the United States, larceny was generally punished by hanging; forgeries,
burglaries, etc., in the same way; for, be it remembered, penitentiaries are of
modern origin, and I doubt if it ever entered into the mind of men of that day
that a crime such as this witness makes the defendant guilty of deserved a less
penalty than the judge has inflicted. It would be an interference with matters
left by the Constitution to the legislative department of the government for us
to undertake to weigh the propriety of this or that penalty fixed by the
legislature for specific offenses. So long as they do not provide cruel and
unusual punishments, such as disgraced the civilization of former ages, and
made one shudder with horror to read of them, as drawing, quartering,
burning, etc., the Constitution does not put any limit upon legislative
discretion."
In State v. White (1890), 44 Kan. 514, 25 Pac. 33, it was sought to reverse a
sentence of five years' imprisonment in the penitentiary, imposed upon a boy
of sixteen for statutory rape. The girl was aged sixteen, and had consented. It
was contended that, if the statute applied, it was unconstitutional and void,
"for the reason that it conflicts with § 9 of the Bill of Rights, because it inflicts
cruel and unusual punishment, and is in conflict with the spirit of the Bill of
Rights generally, and is in violation of common sense, common reason, and
common justice."
The court severely criticized the statute. After deciding that the offense was
embraced in the statute, the court said:
Page 217 U. S. 405
"With respect to the severity of the punishment, while we think it is true that
is is a severer one than has ever before been provided for in any other state or
country for such an offense, yet we cannot say that the statute is void for that
reason. Imprisonment in the penitentiary at hard labor is not, of itself, a cruel
or unusual punishment within the meaning of § 9 of the Bill of Rights of the
Constitution, for it is a kind of punishment which has been resorted to ever
since Kansas has had any existence, and is a kind of punishment common in
260
all civilized countries. That section of the Constitution probably, however,
relates to the kind of punishment to be inflicted, and not to its duration.
Although the punishment in this case may be considered severe, and much
severer, indeed, than the punishment for offenses of much greater magnitude,
as adultery, or sexual intercourse coupled with seduction, yet we cannot say
that the act providing for it is unconstitutional or void."
In State v. Hogan (1900), 63 Ohio St. 218, the court sustained a "tramp law,"
which prescribed as the punishment to be imposed on a tramp for threatening
to do injury to the person of another, imprisonment in the penitentiary not
more than three years nor less than one year. In the course of the opinion, the
court said:
"The objection that the act prescribes a cruel and unusual punishment we
think not well taken. Imprisonment at hard labor is neither cruel nor unusual.
It may be severe in the given instance, but that is a question for the lawmaking
power. In re Kemmler, 136 U. S. 436; Cornelison v. Commonwealth, 84
Kentucky 583. The punishment, to be effective, should be such as will prove
a deterrent. The tramp cares nothing for a jail sentence. Often he courts it. A
workhouse sentence is less welcome, but there are but few workhouses in the
state. A penitentiary sentence is a real punishment. There he has to work, and
cannot shirk."
In Minnesota, a register of deeds was convicted of misappropriating the sum
of $62.50, which should have been turned
Page 217 U. S. 406
over by him to the county treasurer. He was sentenced to pay a fine of $500
and be imprisoned at hard labor for one year. The contention that the sentence
was repugnant to the state constitutional guaranty against cruel and unusual
punishment was considered and disposed of by the court in State v.
Borgstrom, 69 Minn. 508, 520. Among other things, the court said:
"It is claimed that the sentence imposed was altogether disproportionate to
the offense charged, and of which the defendant was convicted, and comes
within the inhibition of Const. art. 1, § 5, that no cruel or unusual punishments
be inflicted. . . . We are not unmindful of the importance of this question, and
have given to it that serious and thorough examination which such importance
demands. . . . In England, there was a time when punishment was by torture,
by loading him with weights to make him confess. Traitors were condemned
to be drowned, disemboweled, or burned. It was the law"
"that the offender shall be drawn, or rather dragged, to the gallows; he shall
be hanged and cut down alive; his entrails shall be removed and burned while
he yet lives; his head shall be decapitated; his body divided into four parts."
"Browne, Bl. Com. 617. For certain other offenses, the offender was punished
by cutting off the hands or ears, or boiling in oil, or putting in the pillory. By
the Roman law, a parricide was punished by being sewed up in a leather sack
with a live dog, a cock, a viper, and an ape, and cast into the sea. These
punishments may properly be termed cruel, but, happily, the more humane
spirit of this nation does not permit such punishments to be inflicted upon
criminals. Such punishments are not warranted by the laws of nature or
society, and we find that they are prohibited by our Constitution. But, within
this limitation or restriction, the legislature is ordinarily the judge of the
expediency of creating new crimes and of prescribing the penalty. . . . While
the amount of money misappropriated in this instance was not great, the
legislature evidently had in mind the fact that the misappropriation by a
Page 217 U. S. 407
public official of the public money was destructive of the public rights and
the stability of our government. But fine and imprisonment are not ordinarily
cruel and unusual punishments."
In Territory v. Ketchum, 10 N. M. 721, the court considered whether a statute
which had recently been put in force, and which imposed the death penalty
instead of a former punishment of imprisonment for an attempt at train
robbery, was cruel and unusual. In sustaining the validity of the law, the court
pointed out the conditions of society which presumably had led the
lawmaking power to fix the stern penalty, and, after a lengthy discussion of
the subject, it was held that the law did not impose punishment which was
cruel or unusual.
The cases just reviewed are typical, and I therefore content myself with noting
in the margin many others to the same general effect. [Footnote 3]
In stating, as I have done, that, in my opinion, no case could be found
sustaining the proposition which the court now
261
Page 217 U. S. 408
holds, I am, of course, not unmindful that a North Carolina case (State v.
Driver, 78 N. C. 423) is cited by the court as authority, and that a Louisiana
case (State ex rel. Garvey et. al. v. Whitaker, 48 La. Ann. 527) is sometimes
referred to as of the same general tenor. A brief analysis of the Driver case
will indicate why, in my opinion, it does not support the contention based
upon it. In that case, the accused was convicted of assault and battery and
sentenced to imprisonment for five years in the county jail. The offense was
a common law misdemeanor, and the punishment, not being fixed by statute,
as observed by the court (page 429), was left to the discretion of the judge. In
testing whether the term of the sentence was unusual, and therefore illegal,
the court held that a long term of imprisonment in the county jail was
unlawful because unusual, and was a gross abuse by the lower court of its
discretion. Although the court made reference to the constitutional guaranty,
there is not the slightest indication in its opinion that it was deemed there
would have been power to set aside the sentence had it been inflicted by virtue
of an express statutory command. But, this aside, it seems to me, as the test
applied in the Driver case to determine what was an unusual punishment in
North Carolina was necessarily so local in character, that it affords no
possible ground here for giving an erroneous meaning to the Eighth
Amendment. I say this because an examination of the opinion will disclose
that it proceeded upon a consideration of the disadvantages peculiar to an
imprisonment in a county jail in North Carolina, as compared with the greater
advantages to arise from the imprisonment for a like term in the penitentiary,
the court saying:
"Now, it is true, our terms of imprisonment are much longer, but they are in
the penitentiary, where a man may live and be made useful; but a county jail
is a close prison, where life is soon in jeopardy, and where the prisoner is not
only useless, but a heavy public expense."
As to the Louisiana case, I content myself with saying that it, in substance,
involved merely the question of error committed
Page 217 U. S. 409
by a magistrate in imposing punishment for many offenses when, under the
law, the offense was a continuing and single one.
From all the considerations which have been stated, I can deduce no ground
whatever which, to my mind, sustains the interpretation now given to the
cruel and unusual punishment clause. On the contrary, in my opinion, the
review which has been made demonstrates that the word "cruel," as used in
the Amendment, forbids only the lawmaking power, in prescribing
punishment for crime, and the courts in imposing punishment, from inflicting
unnecessary bodily suffering through a resort to inhuman methods for
causing bodily torture, like or which are of the nature of the cruel methods of
bodily torture which had been made use of prior to the Bill of Rights of 1689,
and against the recurrence of which the word "cruel" was used in that
instrument. To illustrate. Death was a well known method of punishment,
prescribed by law, and it was, of course, painful, and, in that sense, was cruel.
But the infliction of this punishment was clearly not prohibited by the word
"cruel," although that word manifestly was intended to forbid the resort to
barbarous and unnecessary methods of bodily torture in executing even the
penalty of death.
In my opinion, the previous considerations also establish that the word
"unusual" accomplished only three results: first, it primarily restrains the
courts when acting under the authority of a general discretionary power to
impose punishment, such as was possessed at common law, from inflicting
lawful modes of punishment to so unusual a degree as to cause the
punishment to be illegal, because, to that degree, it cannot be inflicted without
express statutory authority; second, it restrains the courts in the exercise of
the same discretion from inflicting a mode of punishment so unusual as to be
impliedly not within its discretion, and to be consequently illegal in the
absence of express statutory authority; and, third, as to both the foregoing, it
operated to restrain the lawmaking power from endowing the judiciary with
the right to exert an illegal
Page 217 U. S. 410
discretion as to the kind and extent of punishment to be inflicted.
Nor is it given to me to see in what respect the construction thus stated
minimizes the constitutional guaranty by causing it to become obsolete or
ineffective in securing the purposes which led to its adoption. Of course, it
may not be doubted that the provision against cruel bodily punishment is not
restricted to the mere means used in the past to accomplish the prohibited
262
result. The prohibition, being generic, embraces all methods within its
intendment. Thus, if it could be conceived that tomorrow the lawmaking
power, instead of providing for the infliction of the death penalty by hanging,
should command its infliction by burying alive, who could doubt that the law
would be repugnant to the constitutional inhibition against cruel punishment?
But, while this consideration is obvious, it must be equally apparent that the
prohibition against the infliction of cruel bodily torture cannot be extended
so as to limit legislative discretion in prescribing punishment for crime by
modes and methods which are not embraced within the prohibition against
cruel bodily punishment, considered even in their most generic sense, without
disregarding the elementary rules of construction which have prevailed from
the beginning. Of course, the beneficent application of the Constitution to the
ever-changing requirements of our national life has, in a great measure,
resulted from the simple and general terms by which the powers created by
the Constitution are conferred, or in which the limitations which it provides
are expressed. But this beneficent result has also essentially depended upon
the fact that this court, while never hesitating to bring within the powers
granted or to restrain by the limitations created all things generically within
their embrace, has also incessantly declined to allow general words to be
construed so as to include subjects not within their intendment. That these
great results have been accomplished through the application by the court of
the familiar rule that what is generically included in the words
Page 217 U. S. 411
employed in the Constitution is to be ascertained by considering their origin
and their significance at the time of their adoption in the instrument may not
be denied -- Boyd v. United States, 116 U. S. 616, 116 U. S. 624; Kepner v.
United States, 195 U. S. 100, 195 U. S. 124, 105 U. S. 125 -- rulings which
are directly repugnant to the conception that, by judicial construction,
constitutional limitations may be made to progress so as to ultimately include
that which they were not intended to embrace -- a principle with which it
seems to me the ruling now made is in direct conflict, since, by the
interpretation now adopted, two results are accomplished: (a) the clause
against cruel punishments, which was intended to prohibit inhumane and
barbarous bodily punishments, is so construed as to limit the discretion of the
lawmaking power in determining the mere severity with which punishments
not of the prohibited character may be prescribed, and (b) by interpreting the
word "unusual," adopted for the sole purpose of limiting judicial discretion
in order thereby to maintain the supremacy of the lawmaking power, so as to
cause the prohibition to bring about the directly contrary result; that is, to
expand the judicial power by endowing it with a vast authority to control the
legislative department in the exercise of its discretion to define and punish
crime.
But further than this, assuming, for the sake of argument, that I am wrong in
my view of the Eighth Amendment, and that it endows the courts with the
power to review the discretion of the lawmaking body in prescribing sentence
of imprisonment for crime, I yet cannot agree with the conclusion reached in
this case, that, because of the mere term of imprisonment, it is within the rule.
True, the imprisonment is at hard and painful labor. But certainly the mere
qualification of painful in addition to hard cannot be the basis upon which it
is now decided that the legislative discretion was abused, since to understand
the meaning of the term requires a knowledge of the discipline prevailing in
the prisons in the Philippine Islands. The division of hard labor into classes,
one more irksome, and, it may be said, more painful than the other in the
Page 217 U. S. 412
sense of severity, is well known. English prisons act of 1865, Pub.Gen.Stat.
§ 19, p. 835. I do not assume that the mere fact that a chain is to be carried by
the prisoner causes the punishment to be repugnant to the Bill of Rights,
since, while the chain may be irksome, it is evidently not intended to prevent
the performance of the penalty of hard labor. Such a provision may well be
part of the ordinary prison discipline, particularly in communities where the
jails are insecure, and it may be a precaution applied, as it is commonly
applied in this country, as a means of preventing the escape of prisoners; for
instance, where the sentence imposed is to work on the roads or other work
where escape might be likely. I am brought, then, to the conclusion that the
accessory punishments are the basis of the ruling now made, that the
legislative discretion was so abused as to cause it to be necessary to declare
the law prescribing the punishment for the crime invalid. But I can see no
foundation for this ruling, as, to my mind, these accessory punishments, even
under the assumption, for the sake of argument, that they amounted to an
abuse of legislative discretion, are clearly separable from the main
punishment -- imprisonment. Where a sentence is legal in one part and illegal
in another, it is not open to controversy that the illegal, if separable, may be
disregarded and the legal enforced. United States v. Pridgeon, 153 U. S. 48.
But it is said here the illegality is not merely in the sentence, but in the law
which authorizes the sentence. Grant the premise. The illegal is capable of
263
separation from the legal in the law as well as in the sentence; and because
this is a criminal case, it is nonetheless subject to the rule that, where a statute
is unconstitutional in part and in part not, the unconstitutional part, if
separable, may be rejected and the constitutional part maintained. Of course,
it is true that that can only be done provided it can be assumed that the
legislature would have enacted the legal part separate from the illegal. The
ruling now made must therefore rest upon the proposition that, because the
law has provided an illegal in addition to a legal punishment,
Page 217 U. S. 413
it must be assumed that the legislature would not have defined and punished
the crime to the legal extent, because, to some extent, the legislature was
mistaken as to its powers. But this I contend is to indulge in an assumption
which is unwarranted, and has been directly decided to the contrary at this
term in United States v. Union Supply Co., 215 U. S. 50. In that case, a
corporation was proceeded against criminally for an offense punishable by
imprisonment and fine. The corporation clearly could not be subjected to the
imprisonment, and the contention was that the lawmaker must be presumed
to have intended that both the punishments should be inflicted upon the
person violating the law, and therefore it could not be intended to include a
corporation within its terms. In overruling the contention, it was said:
"And if we free our minds from the notion that criminal statutes must be
construed by some artificial and conventional rule, the natural inference,
when a statute prescribes two independent penalties, is that it means to inflict
them so far as it can, and that if one of them is impossible, it does not mean,
on that account, to let the defendant escape."
I am authorized to say that Mr. Justice Holmes concurs in this dissent.
[Footnote 1]
Judgment against Titus Oates upon conviction upon two indictments for
perjury, as announced by the court (10 How.St.Tr. cols. 1316, 1317):
"First, The court does order for a fine that you pay 1,000 marks upon each
Indictment."
"Secondly, That you be stript of all your Canonical Habits."
"Thirdly, The Court does award, That you do stand upon the Pillory, and in
the Pillory, here before Westminster-hall gate, upon Monday next, for an
hour's time, between the hours of 10 and 12; with a paper over your head
(which you must first walk with round about to all the Courts in Westminster-
hall) declaring your crime. And that is upon the first indictment."
"Fourthly (on the Second Indictment), upon Tuesday, you shall stand upon,
and in the Pillory, at the Royal Exchange in London, for the space of an hour,
between the hours of 12 and 2; with the same inscription."
"You shall upon the next Wednesday be whipped from Aldgate to Newgate."
"Upon Friday, you shall be whipped from Newgate to Tyburn, by the hands
of the common hangman."
"But, Mr. Oates, we cannot but remember, there were several particular times
you swore false about; and therefore, as annual commemorations, that it may
be known to all people as long as you live, we have taken special care of you
for an annual punishment."
"Upon the 24th of April every year, as long as you live, you are to stand upon
the Pillory and in the Pillory, at Tyburn, just opposite to the gallows, for the
space of an hour, between the hours of 10 and 12."
"You are to stand upon, and in the Pillory, here at Westminster-hall gate,
every 9th of August, in every year, so long as you live. And that it may be
known what we mean by it, 'tis to remember, what he swore about Mr.
Ireland's being in town between the 8th and 12th of August."
"You are to stand upon, and in the Pillory, at Charing-cross, on the 10th of
August, every year, during your life, for an hour, between 10 and 12."
"The like over against the Temple gate, upon the 11th."
"And upon the 2d of September (which is another notorious time, which you
cannot but be remember'd of) you are to stand upon, and in the Pillory, for
the space of one hour, between 12 and 2, at the Royal Exchange; and all this
you are to do every year, during your life; and to be committed close prisoner,
as long as you live."
264
 Pervear v. Massachusetts, 5 Wall. 475; Wilkerson v. Utah, 99 U. S. 130; Re
Dissenting statement of a minority of the House of Lords: Kemmler, 136 U. S. 436; McElvaine v. Brush, 142 U. S. 155; Howard v.
Fleming, 191 U. S. 126.
"1. For that the King's bench, being a temporal court, made it part of the
judgment that Titus Oates, being a clerk, should, for his said perjuries, be
divested of his canonical and priestly habit, and to continue divested all his
life, which is a matter wholly out of their power, belonging to the
ecclesiastical courts only."

"2. For that the said judgments are barbarous, inhuman, and unchristian, and
there is no precedents to warrant the punishments of whipping and
committing to prison for life, for the crime of perjury, which yet were but part
of the punishments inflicted upon him."

"3. For that the particular matters upon which the indictments were found
were the points objected against Mr. Titus Oates' testimony in several of the
trials, in which he was allowed to be a good and credible witness, though
testified against him by most of the same persons, who witnessed against him
upon those indictments."

"4. For that this will be an encouragement and allowance for giving the like
cruel, barbarous, and illegal judgments hereafter unless this judgment be
reversed."

"5. Because Sir John Holt, Sir Henry Pollexfen, the two chief justices, and
Sir Robert Atkins, chief baron, with six judges more (being all that were then
present), for these and many other reasons, did, before us, solemnly deliver
their opinions, and unanimously declare, that the said judgments were
contrary to law and ancient practice, and therefore erroneous, and ought to be
reversed."

"6. Because it is contrary to the declaration on the 12th of February last,

which was ordered by the Lords Spiritual and Temporal and Commons then
assembled, and by their declaration engrossed in parchment, and enrolled
among the records of Parliament, and recorded in chancery; whereby it doth
appear, that excessive bail ought not to be required, nor excessive fines
imposed, nor cruel nor unusual punishments inflicted."

[Footnote 2]

265
[G.R. No. 117472. February 7, 1997]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. LEO
ECHEGARAY y PILO, accused-appellant.
RESOLUTION
PER CURIAM:
On June 25, 1996, we rendered our decision in the instant case affirming the
conviction of the accused-appellant for the crime of raping his ten-year old
daughter. The crime having been committed sometime in April, 1994, during
which time Republic Act (R.A.) No. 7659, commonly known as the Death
Penalty Law, was already in effect, accused-appellant was inevitably meted
out the supreme penalty of death.
On July 9, 1996, the accused-appellant timely filed a Motion for
Reconsideration which focused on the sinister motive of the victim's
grandmother that precipitated the filing of the alleged false accusation of rape
against the accused. We find no substantial arguments on the said motion
that can disturb our verdict.
On August 6, 1996, accused-appellant discharged the defense counsel, Atty.
Julian R. Vitug, and retained the services of the Anti-Death Penalty Task
Force of the Free Legal Assistance Group of the Philippines (FLAG).
On August 23, 1996, we received the Supplemental Motion for
Reconsideration prepared by the FLAG on behalf of accused-appellant. The
motion raises the following grounds for the reversal of the death sentence:
"[1] Accused-appellant should not have been prosecuted since the pardon
by the offended party and her mother before the filing of the complaint acted
as a bar to his criminal prosecution.
[2] The lack of a definite allegation of the date of the commission of the
offense in the Complaint and throughout trial prevented the accused-appellant
from preparing an adequate defense.
[3] The guilt of the accused was not proved beyond a reasonable doubt.
[4] The Honorable Court erred in finding that the accused-appellant was
the father or stepfather of the complainant and in affirming the sentence of
death against him on this basis.
[5] The trial court denied the accused-appellant of due process and
manifested bias in the conduct of the trial.
[6] The accused-appellant was denied his constitutional right to effective
assistance of counsel and to due process, due to the incompetence of counsel.
[7] R.A. [No.] 7659, reimposing the death penalty is unconstitutional per
se:
a. For crimes where no death results from the offense, the death penalty
is a severe and excessive penalty in violation of Article III, Sec. 19 ( I ) of the
1987 Constitution.
b. The death penalty is cruel and unusual punishment in violation of
Article III, Sec. 11 of the 1987 Constitution."
In sum, the Supplemental Motion for Reconsideration raises three (3) main
issues: (1) mixed factual and legal matters relating to the trial proceedings
and findings; (2) alleged incompetence of accused-appellant's former
counsel; and (3) purely legal question of the constitutionality of R.A. No.
7659.
I.
It is a rudimentary principle of law that matters neither alleged in the
pleadings nor raised during the proceedings below cannot be ventilated for
the first time on appeal before the Supreme Court. Moreover, as we have
stated in our Resolution in Manila Bay Club Corporation v. Court of
Appeals:[1]
"If well-recognized jurisprudence precludes raising an issue only for the first
time on appeal proper, with more reason should such issue be disallowed or
disregarded when initially raised only in a motion for reconsideration of the
decision of the appellate court."
266
It is to be remembered that during the proceedings of the rape case against
the accused-appellant before the sala of then presiding Judge xxx, the defense
attempted to prove that:
a) the rape case was motivated by greed, hence, a mere concoction of the
alleged victim's maternal grandmother;
b) the accused is not the real father of the complainant;
c) the size of the penis of the accused cannot have possibly penetrated the
alleged victim's private part; and
d) the accused was in xxx during the time of the alleged rape.
In his Brief before us when the rape case was elevated for automatic review,
the accused-appellant reiterated as grounds for exculpation:
a) the ill-motive of the victim's maternal grandmother in prompting her
grandchild to file the rape case;
b) the defense of denial relative to the size of his penis which could not
have caused the healed hymenal lacerations of the victim; and
c) the defense of alibi.
Thus, a second hard look at the issues raised by the new counsel of the
accused-appellant reveals that in their messianic appeal for a reversal of our
judgment of conviction, we are asked to consider for the first time, by way of
a Supplemental Motion for Reconsideration, the following matters:
a) the affidavit of desistance written by the victim which acted as a bar to
the criminal prosecution for rape against the accused-appellant;
b) the vagueness attributed to the date of the commission of the offense in
the Complaint which deprived the accused-appellant from adequately
defending himself;
c) the failure of this Court to clearly establish the qualifying circumstance
that placed the accused-appellant within the coverage of the Death Penalty
Law;
d) the denial of due process and the manifest bias exhibited by the trial
court during the trial of the rape case.
Apparently, after a careful scrutiny of the foregoing points for
reconsideration, the only legitimate issue that We can tackle relates to the
Affidavit of Desistance which touches on the lack of jurisdiction of the trial
court to have proceeded with the prosecution of the accused-appellant
considering that the issue of jurisdiction over the subject matter may be raised
at any time, even during appeal.[2]
It must be stressed that during the trial proceedings of the rape case against
the accused-appellant, it appeared that despite the admission made by the
victim herself in open court that she had signed an Affidavit of Desistance,
she, nevertheless, "strongly pointed out that she is not withdrawing the charge
against the accused because the latter might do the same sexual assaults to
other women."[3] Thus, this is one occasion where an affidavit of desistance
must be regarded with disfavor inasmuch as the victim, in her tender age,
manifested in court that she was pursuing the rape charges against the
accused-appellant.
We have explained in the case of People v. Gerry Ballabare,[4] that:
"As pointed out in People v. Lim (24 190 SCRA 706 [1990], which is also
cited by the accused-appellant, an affidavit of desistance is merely an
additional ground to buttress the accused's defenses, not the sole
consideration that can result in acquittal. There must be other circumstances
which, when coupled with the retraction or desistance, create doubts as to the
truth of the testimony given by the witnesses at the trial and accepted by the
judge."[5]
In the case at bar, all that the accused-appellant offered as defenses mainly
consisted of denial and alibi which cannot outweigh the positive
identification and convincing testimonies given by the prosecution. Hence,
the affidavit of desistance, which the victim herself intended to disregard as
earlier discussed, must have no bearing on the criminal prosecution against
the accused-appellant, particularly on the trial court's jurisdiction over the
case.
II
267

The settled rule is that the client is bound by the negligence or mistakes of
his counsel.[6] One of the recognized exceptions to this rule is gross
incompetency in a way that the defendant is highly prejudiced and prevented,
in effect, from having his day in court to defend himself.[7]
In the instant case, we believe that the former counsel of the accused-
appellant to whom the FLAG lawyers now impute incompetency had amply
exercised the required ordinary diligence or that reasonable decree of care
and skill expected of him relative to his client's defense. As the rape case was
being tried on the merits, Atty. Vitug, from the time he was assigned to handle
the case, dutifully attended the hearings thereof. Moreover, he had
seasonably submitted the Accused-Appellant's Brief and the Motion for
Reconsideration of our June 25, 1996 Decision with extensive discussion in
support of his line of defense. There is no indication of gross incompetency
that could have resulted from a failure to present any argument or any witness
to defend his client. Neither has he acted haphazardly in the preparation of
his case against the prosecution evidence. The main reason for his failure to
exculpate his client, the accused-appellant, is the overwhelming evidence of
the prosecution. The alleged errors committed by the previous counsel as
enumerated by the new counsel could not have overturned the judgment of
conviction against the accused-appellant.
III
Although its origins seem lost in obscurity, the imposition of death as
punishment for violation of law or custom, religious or secular, is an ancient
practice. We do know that our forefathers killed to avenge themselves and
their kin and that initially, the criminal law was used to compensate for a
wrong done to a private party or his family, not to punish in the name of the
state.
The dawning of civilization brought with it both the increasing sensitization
throughout the later generations against past barbarity and the
institutionalization of state power under the rule of law. Today every man or
woman is both an individual person with inherent human rights recognized
and protected by the state and a citizen with the duty to serve the common
weal and defend and preserve society.
One of the indispensable powers of the state is the power to secure society
against threatened and actual evil. Pursuant to this, the legislative arm of
government enacts criminal laws that define and punish illegal acts that may
be committed by its own subjects, the executive agencies enforce these laws,
and the judiciary tries and sentences the criminals in accordance with these
laws.
Although penologists, throughout history, have not stopped debating on the
causes of criminal behavior and the purposes of criminal punishment, our
criminal laws have been perceived as relatively stable and functional since
the enforcement of the Revised Penal Code on January 1, 1932, this
notwithstanding occasional opposition to the death penalty provisions
therein. The Revised Penal Code, as it was originally promulgated, provided
for the death penalty in specified crimes under specific circumstances. As
early as 1886, though, capital punishment had entered our legal system
through the old Penal Code, which was a modified version of the Spanish
Penal Code of 1870.
The opposition to the death penalty uniformly took the form of a
constitutional question of whether or not the death penalty is a cruel, unjust,
excessive or unusual punishment in violation of the constitutional
proscription against cruel and unusual punishments. We unchangingly
answered this question in the negative in the cases of Harden v. Director of
Prison,[8] People v. Limaco,[9] People v. Camano,[10] People v. Puda[11]
and People v. Marcos,[12] In Harden, we ruled:
"The penalty complained of is neither cruel, unjust nor excessive. In Ex-parte
Kemmler, 136 U.S., 436, the United States Supreme Court said that
'punishments are cruel when they involve torture or a lingering death, but the
punishment of death is not cruel, within the meaning of that word as used in
the constitution. It implies there something inhuman and barbarous,
something more than the mere extinguishment of life.'"[13]
Consequently, we have time and again emphasized that our courts are not the
fora for a protracted debate on the morality or propriety of the death sentence
where the law itself provides therefor in specific and well-defined criminal
acts. Thus we had ruled in the 1951 case of Limacothat:
"x x x there are quite a number of people who honestly believe that the
supreme penalty is either morally wrong or unwise or ineffective. However,
268
as long as that penalty remains in the statute books, and as long as our
criminal law provides for its imposition in certain cases, it is the duty of
judicial officers to respect and apply the law regardless of their private
opinions,"[14]
and this we have reiterated in the 1995 case of People v. Veneracion.[15]
Under the Revised Penal Code, death is the penalty for the crimes of treason,
correspondence with the enemy during times of war, qualified piracy,
parricide, murder, infanticide, kidnapping, rape with homicide or with the use
of deadly weapon or by two or more persons resulting in insanity, robbery
with homicide, and arson resulting in death. The list of capital offenses
lengthened as the legislature responded to the emergencies of the times. In
1941, Commonwealth Act (C.A.) No. 616 added espionage to the list. In the
1950s, at the height of the Huk rebellion, the government enacted Republic
Act (R.A.) No. 1700, otherwise known as the Anti-Subversion Law, which
carried the death penalty for leaders of the rebellion. From 1971 to 1972,
more capital offenses were created by more laws, among them, the Anti-
Hijacking Law, the Dangerous Drugs Act, and the Anti-Carnapping Law.
During martial law, Presidential Decree (P.D.) No. 1866 was enacted
penalizing with death, among others, crimes involving homicide committed
with an unlicensed firearm.
In the aftermath of the 1986 revolution that dismantled the Marcos regime
and led to the nullification of the 1973 Constitution, a Constitutional
Commission was convened following appointments thereto by Corazon
Aquino who was catapulted to power by the people.
Tasked with formulating a charter that echoes the new found freedom of a
rejuvenated people, the Constitutional Commissioners grouped themselves
into working committees among which is the Bill of Rights Committee with
Jose B. Laurel, Jr. As Chairman and Father Joaquin G. Bernas, S.J., as Vice-
Chairman.
On July 17, 1986, Father Bernas presented the committee draft of the
proposed bill of rights to the rest of the commission. What is now Article III,
Section 19 (1) of the 1987 Constitution was first denominated as Section 22
and was originally worded as follows:
"Excessive fines shall not be imposed, nor cruel, degrading or inhuman
punishment, or the death penalty inflicted. Death penalty already imposed
shall be commuted to reclusion perpetua."
Father Bernas explained that the foregoing provision was the result of a
consensus among the members of the Bill of Rights Committee that the death
penalty should be abolished. Having agreed to abolish the death penalty, they
proceeded to deliberate on how the abolition was to be done -- whether the
abolition should be done by the Constitution or by the legislature -- and the
majority voted for a constitutional abolition of the death penalty. Father
Bernas explained:
"x x x [T]here was a division in the Committee not on whether the death
penalty should be abolished or not, but rather on whether the abolition should
be done by the Constitution -- in which case it cannot be restored by the
legislature -- or left to the legislature. The majority voted for the
constitutional abolition of the death penalty. And the reason is that capital
punishment is inhuman for the convict and his family who are traumatized by
the waiting, even if it is never carried out. There is no evidence that the death
penalty deterred deadly criminals, hence, life should not be destroyed just in
the hope that other lives might be saved. Assuming mastery over the life of
another man is just too presumptuous for any man. The fact that the death
penalty as an institution has been there from time immemorial should not
deter us from reviewing it. Human life is more valuable than an institution
intended precisely to serve human life. So, basically, this is the summary of
the reasons which were presented in support of the constitutional abolition of
the death penalty".[16]
The original wording of Article III, Section 19 (1), however, did not survive
the debate that it instigated. Commissioner Napoleon G. Rama first pointed
out that "never in our history has there been a higher incidence of crime" and
that "criminality was at its zenith during the last decade".[17] Ultimately, the
dissent defined itself to an unwillingness to absolutely excise the death
penalty from our legal system and leave society helpless in the face of a future
upsurge of crimes or other similar emergencies. As Commissioner Rustico
F. de los Reyes, Jr. suggested, "although we abolish the death penalty in the
Constitution, we should afford some amount of flexibility to future
legislation,"[18] and his concern was amplified by the interpellatory remarks
of Commissioner Lugum L. Commissioner and now Associate Justice
Florenz Regalado, Commissioner Crispino M. de Castro, Commissioner
269
Ambrosio B. Padilla, Commissioner Christian Monsod, Commissioner
Francisco A. Rodrigo, and Commissioner Ricardo Romulo. Commissioner
Padilla put it succinctly in the following exchange with Commissioner
Teodoro C. Bacani:
"BISHOP BACANI. x x x At present, they explicitly make it clear that the
church has never condemned the right of the state to inflict capital
punishment.
MR. PADILLA. x x x So it is granted that the state is not deprived of the
right even from a moral standpoint of imposing or prescribing capital
punishment.
BISHOP BACANI. Yes. What I am saying is that from the Catholic point of
view, that right of the state is not forbidden.
MR. PADILLA. In fact x x x we have to accept that the state has the
delegated authority from the Creator to impose the death penalty under
certain circumstances.
BISHOP BACANI. The state has the delegation from God for it to do what
is needed for the sake of the common good, but the issue at stake is whether
or not under the present circumstances that will be for the common good.
MR. PADILLA. But the delegated power of the state cannot be denied.
BISHOP BACANI. Yes, the state can be delegated by God at a particular
stage in history, but it is not clear whether or not that delegation is forever
under all circumstances
MR. PADILLA. So this matter should be left to the legislature to determine,
under certain specified conditions or circumstances, whether the retention of
the death penalty or its abolition would be for the common good. I do not
believe this Commission can a priori, and as was remarked within a few days
or even a month, determine a positive provision in the Constitution that would
prohibit even the legislature to prescribe the death penalty for the most
heinous crimes, the most grievous offenses attended by many qualifying and
aggravating circumstances."[19]
What followed, thus, were proposed amendments to the beleaguered
provision. The move to add the phrase, "unless for compelling reasons
involving heinous crimes, the national assembly provides for the death
penalty," came from Commissioners Monsod, Jose E. Suarez and de los
Reyes. Commissioner Rodrigo, however, expressed reservations even as
regards the proposed amendment. He said:
"x x x [T]he issue here is whether or not we should provide this matter in the
Constitution or leave it to the discretion of our legislature. Arguments pro
and con have been given x x x. But my stand is, we should leave this to the
discretion of the legislature.
The proposed amendment is halfhearted. It is awkward because we will, in
effect, repeal by our Constitution a piece of legislation and after repealing
this piece of legislation, tell the legislature that we have repealed the law and
that the legislature can go ahead and enact it again. I think this is not worthy
of a constitutional body like ours. If we will leave the matter of the death
penalty to the legislature, let us leave it completely to the discretion of the
legislature, but let us not have this half-baked provision. We have many
provisions in the Revised Penal Code imposing the death penalty. We will
now revoke or repeal these pieces of legislation by means of the Constitution,
but at the same time say that it is up to the legislature to impose this again.
x x x The temper and condition of the times change x x x and so we, I think
we should leave this matter to the legislature to enact statutes depending on
the changing needs of the times. Let us entrust this completely to the
legislature composed of representatives elected by the people.
I do not say that we are not competent. But we have to admit the fact that we
are not elected by the people and if we are going to entrust this to the
legislature, let us not be half-baked nor half-hearted about it. Let us entrust
it to the legislature 100 percent."[20]
Nonetheless, the proposed amendment was approved with twenty-three (23)
commissioners voting in favor of the amendment and twelve (12) voting
against it, followed by more revisions, hence the present wording of Article
III, Section 19 (1) of the 1987 Constitution in the following tenor:
"Excessive fines shall not be imposed, nor cruel, degrading or inhuman
punishment inflicted. Neither shall death penalty be imposed, unless, for
270
compelling reasons involving heinous crimes, the Congress hereafter
provides for it. Any death penalty already imposed shall be reduced to
reclusion perpetua."
The implications of the foregoing provision on the effectivity of the death
penalty provisions in the Revised Penal Code and certain special criminal
laws and the state of the scale of penalties thereunder, were tremendous.
The immediate problem pertained to the applicable penalty for what used to
be capital crimes. In People v. Gavarra,[21] we stated that "in view of the
abolition of the death penalty under Section 19, Article III of the 1987
Constitution, the penalty that may be imposed for murder isreclusion
temporal in its maximum period to reclusion perpetua"[22] thereby
eliminating death as the original maximum period. The constitutional
abolition of the death penalty, it seemed, limited the penalty for murder to
only the remaining periods, to wit, the minimum and the medium, which we
then, in People v. Masangkay,[23] People v. Atencio[24] and People v.
Intino[25] divided into three new periods, to wit, the lower half of reclusion
temporal maximum as the minimum; the upper half of reclusion temporal
maximum as the medium; and reclusion perpetua as the maximum, in keeping
with the three-grade scheme under the Revised Penal Code. In People v.
Munoz,[26] however, we reconsidered these aforecited cases and after
extended discussion, we concluded that the doctrine announced therein did
not reflect the intention of the framers. The crux of the issue was whether or
not Article III, Section 19 (1) absolutely abolished the death penalty, for if it
did, then, the aforementioned new three-grade penalty should replace the old
one where the death penalty constituted the maximum period. But if no total
abolition can be read from said constitutional provision and the death penalty
is only suspended, it cannot as yet be negated by the institution of a new three-
grade penalty premised on the total inexistence of the death penalty in our
statute books. We thus ruled in Munoz:
"The advocates of the Masangkay ruling argue that the Constitution abolished
the death penalty and thereby limited the penalty for murder to the remaining
periods, to wit, the minimum and the medium. These should now be divided
into three new periods in keeping with the three-grade scheme intended by
the legislature. Those who disagree feel that Article III, Section 19 (1) merely
prohibits the imposition of the death penalty and has not, by reducing it
toreclusion perpetua, also correspondingly reduced the remaining penalties.
These should be maintained intact.
A reading of Section 19 (1) of Article III will readily show that there is really
nothing therein which expressly declares the abolition of the death penalty.
The provision merely says that the death penalty shall not be imposed unless
for compelling reasons involving heinous crimes the Congress hereafter
provides for it and, if already imposed, shall be reduced to reclusion perpetua.
The language, while rather awkward, is still plain enough".[27]
Nothing is more defining of the true content of Article III, Section 19 (1) of
the 1987 Constitution than the form in which the legislature took the initiative
in re-imposing the death penalty.
The Senate never doubted its power as vested in it by the constitution, to enact
legislation re-imposing the death penalty for compelling reasons involving
heinous crimes. Pursuant to this constitutional mandate, the Senate
proceeded to a two-step process consisting of: first, the decision, as a matter
of policy, to re-impose the death penalty or not; and second, the vote to pass
on the third reading the bill re-imposing the death penalty for compelling
reasons involving heinous crimes.
On February 15, 1993, after a fierce and fiery exchange of arguments for and
against capital punishment, the Members of the Senate voted on the policy
issue of death penalty. The vote was explained, thus:
"SUSPENSION OF THE RULES
Upon motion of Senator Romulo, there being no objection, the Body
suspended the Rules of the Senate.
Thereafter, upon motion of Senator Romulo, there being no objection, the
Chair directed that a nominal voting be conducted on the policy issue of death
penalty.
INQUIRY OF SENATOR TOLENTINO
Asked by Senator Tolentino on how the Members of the Senate would vote
on this policy question, Senator Romulo stated that a vote of Yes would mean
a vote in favor of death as a penalty to be reincorporated in the scale of
penalties as provided in the Revised Penal Code, and a vote of No would be
271
a vote against the reincorporation of death penalty in the scale of penalties in
the Revised Penal Code.
INQUIRY OF SENATOR ALVAREZ
xxx
The Chair explained that it was agreed upon that the Body would first decide
the question whether or not death penalty should be reimposed, and
thereafter, a seven-man committee would be formed to draft the compromise
bill in accordance with the result of the voting. If the Body decides in favor
of the death penalty, the Chair said that the committee would specify the
crimes on which death penalty would be imposed. It affirmed that a vote of
Yes in the nominal voting would mean a vote in favor of death penalty on at
least one crime, and that certain refinements on how the penalty would be
imposed would be left to the discretion of the seven-man committee.
xxx
INQUIRY OF SENATOR TAADA
In reply to Senator Taada's query, the Chair affirmed that even if a senator
would vote 'yes' on the basic policy issue, he could still vote 'no' on the
imposition of the death penalty on a particular crime.
REMARKS OF SENATOR TOLENTINO
Senator Tolentino observed that the Body would be voting on the basic policy
issue of whether or not the death penalty would be included in the scale of
penalties found in Article 27 of the Revised Penal Code, so that if it is voted
down, the Body would discontinue discussing Senate Bill No. 891 pursuant
to the Rules, but if approved, a special committee, as agreed upon in the
caucus, is going to be appointed and whatever course it will take will depend
upon the mandate given to it by the Body later on.
The Chair affirmed Senator Tolentino's observations.
REMARKS OF SENATOR ROCO
Senator Roco stated that the Body would vote whether or not death as a
penalty will be reincorporated in the scale of penalties provided by the
Revised Penal Code. However, he pointed out that if the Body decides in
favor of death penalty, the Body would still have to address two issues: 1) Is
the crime for which the death penalty is supposed to be imposed heinous
pursuant to the constitutional mandate? 2) And, if so, is there a compelling
reason to impose the death penalty for it? The death penalty, he stressed,
cannot be imposed simply because the crime is heinous."[28]
With seventeen (17) affirmative votes and seven (7) negative votes and no
abstention, the Chair declared that the Senate has voted to re-incorporate
death as a penalty in the scale of penalties as provided in the Revised Penal
Code. A nine-person committee was subsequently created to draft the
compromise bill pursuant to said vote. The mandate of the committee was to
retain the death penalty, while the main debate in the committee would be the
determination of the crimes to be considered heinous.
On March 17, 1993, Senator Arturo Tolentino, Chairman of the Special
Committee on the Death Penalty, delivered his Sponsorship Speech. He
began with an explanation as to why the Senate Bill No. 891 re-imposes the
death penalty by amending the Revised Penal Code and other special penal
laws and includes provisions that do not define or punish crimes but serve
purposes allied to the reimposition of the death penalty. Senator Tolentino
stated:
x x x [W]hen the Senate approved the policy of reimposing the death penalty
on heinous crimes and delegated to the Special Committee the work of
drafting a bill, a compromise bill that would be the subject for future
deliberations of this Body, the Committee had to consider that the death
penalty was imposed originally in the Revised Penal Code.
So, when the Constitution was approved in order to do away with the death
penalty, unless Congress should, for compelling reasons reimpose that
penalty on heinous crimes, it was obvious that it was the Revised Penal Code
that was affected by that provision of the Constitution. The death penalty, as
provided in the Revised Penal Code, would be considered as having been
repealed -- all provisions on the death penalty would be considered as having
been repealed by the Constitution, until Congress should, for compelling
reasons, reimpose such penalty on heinous crimes. Therefore, it was not only
272
one article but many articles of the Revised Penal Code that were actually
affected by the Constitution.
And it is in consideration of this consequence of the constitutional provision
that our Special Committee had to consider the Revised Penal Code itself in
making this compromise bill or text of the bill. That is why, in the proposed
draft now under consideration which we are sponsoring, the specific
provisions of the Revised Penal Code are actually either reenacted or
amended or both. Because by the effect of the Constitution, some provisions
were totally repealed, and they had to be reenacted so that the provisions
could be retained. And some of them had to be amended because the
Committee thought that amendments were proper."[29]
In response to a query by Senator Gloria Macapagal-Arroyo as to whether or
not it would have been better if the Senate were to enact a special law which
merely defined and imposed the death penalty for heinous crimes, Senator
Tolentino explicated, thus:
"x x x [T]hat may be a way presenting the bill. But we must bear in mind
that the death penalty is imposed in the Revised Penal Code. Therefore, when
the Constitution abolished the death penalty, it actually was amending the
Revised Penal Code to such an extent that the Constitution provides that
where the death penalty has already been imposed but not yet carried out,
then the penalty shall be reclusion perpetua, that is the penalty in the Revised
Penal Code. So we thought that it would be best to just amend the provisions
of the Revised Penal Code, restoring the death penalty for some crimes that
may be considered as heinous. That is why the bill is in this form amending
the provisions of the Revised Penal Code.
Of course, if some people want to present a special bill . . . the whole trouble
is, when a special bill is presented and we want to punish in the special bill
the case of murder, for instance, we will have to reproduce the provisions of
the Revised Penal Code on murder in order to define the crime for which the
death penalty shall be imposed. Or if we want to impose the death penalty in
the case of kidnapping which is punished in the Revised Penal Code, we will
do the same -- merely reproduce. Why will we do that? So we just followed
the simpler method of keeping the definition of the crime as the same and
merely adding some aggravating circumstances and reimposing the death
penalty in these offenses originally punished in the Revised Penal Code."[30]
From March 17, 1993, when the death penalty bill was presented for
discussion until August 16, 1993, the Members of the Senate debated on its
provisions.
The stiffest opposition thereto was bannered by Senator Lina who kept
prodding the sponsors of the bill to state the compelling reason for each and
every crime for which the supreme penalty of death was sought. Zeroing in
on the statement in the preamble of the death penalty bill that the same is
warranted in the face of "the alarming upsurge of [heinous] crimes", Senator
Lina demanded for solid statistics showing that in the case of each and every
crime in the death penalty bill, there was a significantly higher incidence of
each crime after the suspension of the death penalty on February 2, 1987
when the 1987 Constitution was ratified by the majority of the Filipino
people, than before such ratification.[31]Inasmuch as the re-impositionists
could not satisfy the abolitionists with sufficient statistical data for the latter
to accept the alarming upsurge of heinous crimes as a compelling reason
justifying the reimposition of the death penalty, Senator Lina concluded that
there were, in fact, no compelling reasons therefor. In the alternative, Senator
Lina argued that the compelling reason required by the constitution was that
"the State has done everything in its command so that it can be justified to
use an inhuman punishment called death penalty".[32] The problem, Senator
Lina emphasized, was that even the re-impositionists admit that there were
still numerous reforms in the criminal justice system that may and must be
put in place, and so clearly, the recourse to the enactment of a death penalty
bill was not in the nature of a last resort, hence, unconstitutional in the
absence of compelling reasons. As an initial reaction to Senator Lina's
contentions, Senator Tolentino explained that the statement in the preamble
is a general one and refers to all the crimes covered by the bill and not to
specific crimes. He added that one crime may not have the same degree of
increase in incidence as the other crimes and that the public demand to impose
the death penalty is enough compelling reason.[33]
Equally fit to the task was Senator Wigberto Taada to whom the battle lines
were clearly drawn. He put to issue two things: first, the definition of
"heinous crimes" as provided for in the death penalty bill; and second, the
statement of compelling reasons for each and every capital crime. His
interpellation of Senator Tolentino clearly showed his objections to the bill:
"Senator Taada. x x x But what would make crimes heinous, Mr. President?
Are crimes heinous by their nature or elements as they are described in the
273
bill or are crimes heinous because they are punished by death, as bribery and
malversation are proposed to be punished in the bill?
Senator Tolentino. They are heinous by their nature, Mr. President, but that
is not supposed to be the exclusive criterion. The nature of the offense is the
most important element in considering it heinous but, at the same time, we
should consider the relation of the offense to society in order to have a
complete idea of the heinous nature of these offenses.
In the case of malversation or bribery, for instance, these offenses by
themselves connected with the effect upon society and the government have
made them fall under the classification of heinous crimes. The compelling
reason for imposing the death penalty is when the offenses of malversation
and bribery becomes so grave and so serious as indicated in the substitute bill
itself, then there is a compelling reason for the death penalty.
Senator Taada. With respect to the compelling reasons, Mr. President, does
the Gentleman believe that these compelling reasons, which would call for
the reimposition of the death penalty, should be separately, distinctly and
clearly stated for each crime so that it will be very clear to one and all that
not only are these crimes heinous but also one can see the compelling reasons
for the reimposition of the death penalty therefor?
Senator Tolentino. Mr. President, that matter was actually considered by the
Committee. But the decision of the Committee was to avoid stating the
compelling reason for each and every offense that is included in the substitute
measure. That is why in the preamble, general statements were made to show
these compelling reasons. And that, we believe, included in the bill, when
converted into law, would be sufficient notice as to what were considered
compelling reasons by the Congress, in providing the death penalty for these
different offenses.
If a matter like this is questioned before the Supreme Court, I would suppose
that with the preamble already in general terms, the Supreme Court would
feel that it was the sense of Congress that this preamble would be applicable
to each and every offense described or punishable in the measure.
So we felt that it was not necessary to repeat these compelling reasons for
each and every offense.
Senator Taada. Mr. President, I am thinking about the constitutional
limitations upon the power of Congress to enact criminal legislation,
especially the provisions on the Bill of Rights, particularly the one which says
that no person shall be held to answer for a criminal offense without due
process of law.
Can we not say that under this provision, it is required that the compelling
reasons be so stated in the bill so that the bill, when it becomes a law, will
clearly define the acts and the omissions punished as crimes?
Senator Tolentino. Mr. President, I believe that in itself, as substantive law,
this is sufficient. The question of whether there is due process will more or
less be a matter of procedure in the compliance with the requirements of the
Constitution with respect to due process itself which is a separate matter from
the substantive law as to the definition and penalty for crimes.
Senator Taada. Under the Constitution, Mr. President, it appears that the
reimposition of the death penalty is subject to three conditions and these are:
1. Congress should so provide such reimposition of the death penalty;
2. There are compelling reasons; and
3. These involve heinous crimes.
Under these provision of the Constitution, paragraph 1, Section 13, does the
distinguished Gentleman not feel that Congress is bound to state clearly the
compelling reasons for the reimposition of the death penalty for each crime,
as well as the elements that make each of the crimes heinous included in the
bill?
Senator Tolentino. Mr. President, that is a matter of opinion already. I
believe that whether we state the compelling reasons or not, whether we state
why a certain offense is heinous, is not very important. If the question is
raised in the Supreme Court, it is not what we say in the bill that will be
controlling but what the Supreme Court will fell as a sufficient compelling
reason or as to the heinous nature whether the crime is heinous or not. The
accused can certainly raise the matter of constitutionality but it will not go
into the matter of due process. It will go into the very power of Congress to
274
enact a bill imposing the death penalty. So that would be entirely separate
from the matter of due process." [34]
Senator Francisco Tatad, on his part, pointed out that the death penalty bill
violated our international commitment in support of the worldwide abolition
of capital punishment, the Philippines being a signatory to the International
Covenant on Civil and Political Rights and its Second Optional Protocol.
Senator Ernesto Herrera clarified, however, that in the United Nations,
subject matters are submitted to the different committees which vote on them
for consideration in the plenary session. He stressed that unless approved in
the plenary session, a declaration would have no binding effect on signatory
countries. In this respect, the Philippines cannot be deemed irrevocably
bound by said covenant and protocol considering that these agreements have
reached only the committee level.[35]
After the protracted debate, the Members of the Senate voted on Senate Bill
No. 891 on third reading. With seventeen (17) affirmative votes, four (4)
negative votes, and one abstention, the death penalty bill was approved on
third reading on August 16, 1993.
The Senate's vote to pass Senate Bill No. 891 on third reading on August 16,
1993 was a vindication of, the House of Representatives. The House had, in
the Eight Congress, earlier approved on third reading House Bill No. 295 on
the restoration of the death penalty for certain heinous crimes. The House
was in effect rebuffed by the Senate when the Senate killed House Bill No.
295 along with other bills coming from the House. House Bill No. 295 was
resurrected during the Ninth Congress in the form of House Bill No. 62 which
was introduced by twenty one (21) Members of the House of Representatives
on October 27, 1992. House Bill No. 62 was a merger of House Bill Nos.
125, 187, 411, 764, 506, 781, 955, 1565, 1586, 2206, 3238, 3576 and 3632
authored by various Members of the Lower House.
In his Sponsorship Speech, Representative Manuel R. Sanchez of Rizal ably
essayed the constitutional vesting in Congress of the power to re-impose the
death penalty for compelling reasons invoking heinous crimes as well as the
nature of this constitutional pre-requisite to the exercise of such power.
"Mr. Speaker, in Article III, Section 19(1) of Constitution reads, a I quote:
'Neither shall death penalty be imposed, unless, for compelling reasons
involving heinous crimes, the Congress shall thereafter provide for it . . .'
The phrase 'unless, for compelling reasons involving heinous crimes, the
Congress shall thereafter provide for it was introduced as an amendment by
then Comm. Christian Monsod.
The import of this amendment is unmistakable. By this amendment, the death
penalty was not completely abolished by the 1987 Constitution. Rather, it
merely suspended the death penalty and gave Congress the discretion to
review it at the propitious time.
Arguing for the inclusion of said amendment in the fine provision, Comm.
Ricardo Romulo said, and I quote:
"'The people should have the final say on the subject, because, at some future
time, the people might want to restore death penalty through initiative and
referendum.
Commissioner Monsod further argued, and I quote:
We cannot presume to have the wisdom of the ages. Therefore, it is entirely
possible in the future that circumstances may arise which we should not
preclude today.
xxx xxx
xxx
I believe that [there] are enough compelling reasons that merit the
reimposition of the capital punishment. The violent manner and the
viciousness in which crimes are now committed with alarming regularity,
show very clearly a patent disregard of the law and a mockery of public peace
and order.
In the public gallery section today are the relatives of the victims of heinous
crimes the Hultmans, the Maguans, the Vizcondes, the Castanoses, and many
more, and they are all crying for justice. We ought to listen to them because
their lives, their hopes, their dreams, their future have fallen asunder by the
cruel and vicious criminality of a few who put their selfish interest above that
of society.
275
Heinous crime is an act or series of acts which, by the flagrantly violent
manner in which the same was committed or by the reason of its inherent
viciousness, shows a patent disregard and mockery of the law, public peace
and order, or public morals. It is an offense whose essential and inherent
viciousness and atrocity are repugnant and outrageous to a civilized society
and hence, shock the moral self of a people.
Of late, we are witness to such kind of barbaric crimes.
The Vizconde massacre that took the lives of a mother and her two lovely
daughters, will stand in the people's memory for many long years as the
epitome of viciousness and atrocity that are repugnant to civilized society.
The senseless murder of Eldon Maguan, and up-and-coming young business
executive, was and still is an outrage that shocks the moral self of our people.
The mind-boggling death of Maureen Hultmann, a comely 16 year-old high
school student who dreamt of becoming a commercial model someday, at the
hands of a crazed man was so repulsive, so brutal that it offends the
sensibilities of Christians and non-Christians alike
The cold-blooded double murder of Cochise Bernabe and Beebom Castanos,
the lovely and promising couple from the University of the Philippines, is
eternally lodged in the recesses of our minds and still makes our stomach turn
in utter disgust.
xxx xxx
xxx
The seriousness of the situation is such that if no radical action is taken by
this body in restoring death penalty as a positive response to the
overwhelming clamor of the people, then, as Professor Esteban Bautista of
the Philippine Law Center said, and I quote:
'When people begin to believe that organized society is unwilling or unable
to impose upon criminal offenders the punishment they deserve, there are
sown the seeds of anarchy of self-help, of vigilante justice and lynch law.
The people will take the law upon their hands and exact vengeance in the
nature of personal vendetta.'
It is for this reason, Mr. Speaker, that I stand here and support House Bill No.
62.
As duly elected Representatives of our people, collectively, we ought to listen
to our constituents and heed their plea a plea for life, liberty and pursuit of
their happiness under a regime of justice and democracy, and without threat
that their loves ones will be kidnapped, raped or butchered.
But if such a misfortune befalls them, there is the law they could rely on for
justice. A law that will exact retribution for the victims. A law that will deter
future animalistic behavior of the criminal who take their selfish interest over
and above that of society. A law that will deal a deathblow upon all heinous
crimes.
Mr. Speaker, my distinguished colleagues, for the preservation of all that we
hold dear and sacred, let us restore the death penalty."[36]
A studious comparison of the legislative proceedings in the Senate and in the
House of Representatives reveals that, while both Chambers were not
wanting of oppositors to the death penalty, the Lower House seemed less
quarrelsome about the form of the death penalty bill as a special law
specifying certain heinous crimes without regard to the provisions of the
Revised Penal Code and more unified in the perception of what crimes are
heinous and that the fact of their very heinousness involves the compulsion
and the imperative to suppress, if not completely eradicate, their occurrence.
Be it the foregoing general statement of Representative Sanchez or the
following details of the nature of the heinous crimes enumerated in House
Bill No. 62 by Representative Miguel L. Romero of Negros Oriental, there
was clearly, among the hundred or so re-impositionists in the Lower House,
no doubt as to their cause:
"My friends, this bill provides for the imposition of the death penalty not only
for the importation, manufacture and sale of dangerous drugs, but also for
other heinous crimes such as reason; parricide; murder; kidnapping; robbery;
rape as defined by the Revised Penal Code with or without additionally
defined circumstances; plunder, as defined in R.A. 7080; piracy, as defined
under Section 2 of PD 532; carnapping, as defined in Section 2 of RA 6539,
when the owner, driver or occupant is killed; hijacking, as defined in xxx RA
6235; and arson resulting in the death of any occupants.
276
All these crimes have a common denominator which qualifies them to the
level of heinous crimes. A heinous crime is one which, by reason of its
inherent or manifest wickedness, viciousness, atrocity or perversity, is
repugnant and outrageous to the common standards of decency and morality
in a just and civilized society.
For instance, the crime of treason is defined as a breach of allegiance to a
government, committed by a person who owes allegiance to it (U.S. v. Abad
1 Phil. 437). By the 'allegiance' is meant the obligation of fidelity and
obedience which individuals owe to the government under which they live or
to their sovereign in return for the protection which they receive (52 Am Jur
797).
In kidnapping, the though alone of one's loved one being held against his or
her own will in some unidentified xxx house by a group of scoundrels who
are strangers is enough terrify and send shivers of fear through the spine of
any person, even scoundrels themselves.
In robbery accompanied by rape, intentional mutilation or arson, what is
being punished by death is the fact that the perpetrator, at the time of the
commission of the crime, thinks nothing of the other crime he commits and
sees it merely as a form of self-amusement. When a homicide is committed
by reason of the robbery, the culprits are perceived as willing to take human
life in exchange for money or other personal property.
In the crime of rape, not only do we speak of the pain and agony of the parents
over the personal shock and suffering of their child but the stigma of the
traumatic and degrading incident which has shattered the victim's life and
permanently destroyed her reputation, not to mention the ordeal of having to
undergo the shameful experience of police interrogation and court hearings.
Piracy, which is merely a higher form of robbery, is punished for the universal
hostility of the perpetrators against their victims who are passengers and
complement of the vessel, and because of the fact that, in the high seas, no
one may be expected to be able to come to the rescue of the helpless victims.
For the same reason, Mr. Speaker, the crime of air piracy is punished due to
the evil motive of the hijackers in making unreasonable demands upon the
sovereignty of an entire nation or nations, coupled with the attendant
circumstance of subjecting the passengers to terrorism." [37]
The debate on House Bill No. 62 lasted from October 27, 1992 to February
11, 1993. On February 11, 1993, the Members of the House of
Representatives overwhelmingly approved the death penalty bill on second
reading.
On February 23, 1993, after explaining their votes, the Members of the House
of Representatives cast their vote on House Bill No. 62 when it was up for
consideration on third reading. [38] The results were 123 votes in favor, 26
votes against, and 2 abstentions
After the approval on third reading of House Bill No. 62 on February 23,
1993 and of Senate Bill No. 891 on August 16, 1993, the Bicameral
Conference Committee convened to incorporate and consolidate them.
On December 31, 1993, Republic Act (R.A.) No. 7659, entitled, "An Act to
Impose the Death Penalty on Certain Heinous Crimes, Amending for that
Purpose the Revised Penal Code, as Amended, Other Special Penal Laws,
and for Other Purposes," took effect.[39]
Between December 31, 1993, when R.A. No. 7659 took effect, and the
present time, criminal offenders have been prosecuted under said law, and
one of them, herein accused-appellant, has been, pursuant to said law, meted
out the supreme penalty of death for raping his ten-year old daughter. Upon
his conviction, his case was elevated to us on automatic review. On June 25,
1996, we affirmed his conviction and the death sentence.
Now, accused-appellant comes to us in the heels of this court's affirmation of
his death sentence and raises for the first time the issue of the constitutionality
of R.A. 7659. His thesis is two-fold: (1) that the death penalty law is
unconstitutional per se for having been enacted in the absence of compelling
reasons therefor; and (2) that the death penalty for rape is a cruel, excessive
and inhuman punishment in violation of the constitutional proscription
against punishment of such nature.
We reject accused-appellant's proposition.
Three justices interposed their dissent hereto, agreeing with accused-
appellant's view that Congress enacted R.A. No. 7659 without complying
with the twin requirements of compelling reasons and heinous crimes.
277

At this juncture, the detailed events leading to the enactment of R.A. No. 7659
as unfurled in the beginning of this disquisition, necessarily provide the
context for the following analysis.
Article III, Section 19 (1) of the 1987 Constitution plainly vests in Congress
the power to re-impose the death penalty "for compelling reasons involving
heinous crimes". This power is not subsumed in the plenary legislative power
of Congress, for it is subject to a clear showing of "compelling reasons
involving heinous crimes."
The constitutional exercise of this limited power to re-impose the death
penalty entails (1) that Congress define or describe what is meant by heinous
crimes; (2) that Congress specify and penalize by death, only crimes that
qualify as heinous in accordance with the definition or description set in the
death penalty bill and/or designate crimes punishable by reclusion perpetua
to death in which latter case, death can only be imposed upon the attendance
of circumstances duly proven in court that characterize the crime to be
heinous in accordance with the definition or description set in the death
penalty bill; and (3) that Congress, in enacting this death penalty bill be
singularly motivated by "compelling reasons involving heinous crimes."
In the second whereas clause of the preamble of R.A. No. 7659, we find the
definition or description of heinous crimes. Said clause provides that
"x x x the crimes punishable by death under this Act are heinous for being
grievous, odious and hateful offenses and which, by reason of their inherent
or manifest wickedness, viciousness, atrocity and perversity are repugnant
and outrageous to the common standards and norms of decency and morality
in a just, civilized and ordered society."
Justice Santiago Kapunan, in his dissenting opinion in People v. Alicando,
[40] traced the etymological root of the word "heinous" to the Early Spartans'
word, "haineus", meaning, hateful and abominable, which, in turn, was from
the Greek prefix "haton", denoting acts so hatefully or shockingly evil.
We find the foregoing definition or description to be a sufficient criterion of
what is to be considered a heinous crime. This criterion is deliberately
undetailed as to the circumstances of the victim, the accused, place, time, the
manner of commission of crime, its proximate consequences and effects on
the victim as well as on society, to afford the sentencing authority sufficient
leeway to exercise his discretion in imposing the appropriate penalty in cases
where R.A. No. 7659 imposes not a mandatory penalty of death but the more
flexible penalty of reclusion perpetua to death.
During the debates on the proposed death penalty bill, Senators Lina and
Taada grilled the sponsors of the bill as regards what they perceived as a mere
enumeration of capital crimes without a specification of the elements that
make them heinous. They were oblivious to the fact that there were two types
of crimes in the death penalty bill: first, there were crimes penalized by
reclusion perpetua to death; and second, there were crimes penalized by
mandatory capital punishment upon the attendance of certain specified
qualifying circumstances.
Under R.A. No. 7659, the following crimes are penalized by reclusion
perpetua to death:
(1) Treason (Sec. 2);
(2) Qualified piracy (Sec. 3);
(3) Parricide (Sec. 5);
(4) Murder (Sec. 6);
(5) Infanticide (Sec. 7);
(6) Kidnapping and serious illegal detention if attended by any of the
following four circumstances: (a) the victim was detained for more than three
days; (b) it was committed simulating public authority; (c) serious physical
injuries were inflicted on the victim or threats to kill him were made; and (d)
if the victim is a minor, except when the accused is any of the parents, female
or a public officer (Sec. 8);
(7) Robbery with homicide, rape or intentional mutilation (Sec. 9);
(8) Destructive arson if what is burned is (a) one or more buildings or
edifice; (b) a building where people usually gather; (c) a train, ship or airplane
for public use; (d) a building or factory in the service of public utilities; (e) a
building for the purpose of concealing or destroying evidence Or a crime; (f)
278
an arsenal, fireworks factory, or government museum; and (g) a storehouse
or factory of explosive materials located in an inhabited place; or regardless
of what is burned, if the arson is perpetrated by two or more persons (Sec.
10);
(9) Rape attended by any of the following circumstances: (a) the rape is
committed with a deadly weapon; (b) the rape is committed by two or more
persons; and (c) the rape is attempted or frustrated and committed with
homicide (Sec. 11);
(10) Plunder involving at least P50 million (Sec. 12);
(11) Importation of prohibited drugs (Sec. 13);
(12) Sale, administration, delivery, distribution, and transportation of
prohibited drugs (id.);
(13) Maintenance of den, dive or resort for users of prohibited drugs (id.);
(14) Manufacture of prohibited drugs (id.);
(15) Possession or use of prohibited drugs in certain specified amounts (id.);
(16) Cultivation of plants which are sources of prohibited drugs (id.)
(17) Importation of regulated drugs (Sec. 14);
(18) Manufacture of regulated drugs (id.);
(19) Sale, administration, dispensation, delivery, transportation, and
distribution of regulated drugs (id.);
(20) Maintenance of den, dive, or resort for users of regulated drugs (Sec.
15);
(21) Possession or use of regulated drugs in specified amounts (Sec. 16);
(22) Misappropriation, misapplication or failure to account dangerous drugs
confiscated by the arresting officer (Sec. 17);
(23) Planting evidence of dangerous drugs in person or immediate vicinity
of another to implicate the latter (Sec. 19); and
(24) Carnapping where the owner, driver or occupant of the carnapped motor
vehicle is killed or raped (Sec. 20).
All the foregoing crimes are not capital crimes per se, the uniform penalty for
all of them being not mandatory death but the flexible penalty of reclusion
perpetua to death. In other words, it is premature to demand for a specification
of the heinous elements in each of foregoing crimes because they are not
anyway mandatorily penalized with death. The elements that call for the
imposition of the supreme penalty of death in these crimes, would only be
relevant when the trial court, given the prerogative to impose reclusion
perpetua, instead actually imposes the death penalty because it has, in
appreciating the evidence proffered before it, found the attendance of certain
circumstances in the manner by which the crime was committed, or in the
person of the accused on his own or in relation to the victim, or in any other
matter of significance to the commission of the crime or its effects on the
victim or on society, which circumstances characterize the criminal acts as
grievous, odious, or hateful, or inherently or manifestly wicked, vicious,
atrocious or perverse as to be repugnant and outrageous to the common
standards and norms of decency and morality in a just, civilized and ordered
society.
On the other hand, under R.A. No. 7659, the mandatory penalty of death is
imposed in the following crimes:
(1) Qualified bribery
"If any public officer is entrusted with law enforcement and he refrains from
arresting or prosecuting an offender who has committed a crime punishable
by reclusion perpetua and/or death in consideration of any offer, promise, gift
or present, he shall suffer the penalty for the offense which was not
prosecuted.
If it is the public officer who asks or demands such gift or present, he shall
suffer the penalty of death." (Sec. 4)
279
(2) Kidnapping and serious illegal detention for ransom resulting in the
death of the victim or the victim is raped, tortured or subjected to
dehumanizing acts
"The penalty shall be death where the kidnapping or detention was committed
for the purpose of ransom from the victim or any other person, even if none
of the circumstances above-mentioned were present in the commission of the
offense.
When the victim is killed or dies as a consequence of the detention or is raped,
or is subject to torture or dehumanizing acts, the maximum penalty [of death]
shall be imposed." (Sec. 8)
(3) Destructive arson resulting in death
"If as a consequence of the commission of any of the acts penalized under
this Article, death results, the mandatory penalty of death shall be imposed."
(Sec. 10)
(4) Rape with the victim becoming insane, rape with homicide and qualified
"When by reason or on the occasion of the rape, the victim has become
insane, the penalty shall be death.
xxx xxx xxx
When by reason or on the occasion of the rape, a homicide is committed, the
penalty shall be 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 or the
victim.
2. when the victim is under the custody of the police or military authorities.
3. when the rape is committed in full view of the husband, parent, any of
the children or other relatives within the third degree of consanguinity.
4. when the victim is a religious or a child below seven (7) years old
5. when the offender knows that he is afflicted with Acquired Immune
Deficiency Syndrome (AIDS) disease.
6. when committed by any member of the Armed Forces of the Philippines
or the Philippine National Police or any law enforcement agency.
7. when by reason or on the occasion of the rape, the victim has suffered
permanent physical mutilation." (Sec. 11 )
(5) Sale, administration, delivery, distribution and transportation of
prohibited drugs where the victim is a minor or the victim dies
"Notwithstanding the provision of Section 20 of this Act to the contrary, if
the victim of the offense is a minor, or should a prohibited drug involved in
any offense under this Section be the proximate cause of the death of victim
thereof, the maximum penalty [of death] herein provided shall be imposed."
(Sec. 13)
(6) Maintenance of den, dive, or resort for users of prohibited drugs where
the victim is a minor or the victim dies
"Notwithstanding the provisions of Section 20 of this Act to the contrary, the
maximum of the penalty [of death] shall be imposed in every case where a
prohibited drug is administered, delivered or sold to a minor who is allowed
to use the same in such place.
Should a prohibited drug be the proximate case of the death of a person using
the same in such den, dive or resort, the maximum penalty herein provided
shall be imposed on the maintainer notwithstanding the provisions of Section
20 of this Act to the contrary." (Sec. 13)
(7) Sale, administration, dispensation, delivery, distribution and
transportation of regulated drugs where the victim is a minor or the victim
dies
280
"Notwithstanding the provisions of Section 20 of this Act to the contrary, if
the victim of the offense is a minor, or should a regulated drug involved in
any offense under this Section be the proximate cause of the death of a victim
thereof, the maximum penalty [of death] herein provided shall be imposed."
(Sec. 14)
(8) Maintenance of den, dive, or resort for users of regulated drugs where
the victim is a minor or the victim dies
"Notwithstanding the provisions of Section 20 of this Act to the contrary, the
maximum penalty [of death] herein provided shall be imposed in every case
where a regulated drug is administered, delivered or sold to a minor who is
allowed to use the same in such place.
Should a regulated drug be the proximate cause of death of a person using the
same in such den, dive or resort, the maximum penalty herein provided shall
be imposed on the maintainer notwithstanding the provisions of Section 20
of this Act to the contrary." (Sec. 15)
(9) Drug offenses if convicted are government officials, employees or
officers including members of police agencies and armed forces
"The maximum penalties [of death] provided for in Section 3, 4 (1), 5(1), 6,
7, 8, 9, 11,12 and 13 of Article II and Sections 14, 14-A, 14(1), 15A (1), 16,
and 19 of Article III [of the Dangerous Drugs Act of 1972] shall be imposed,
if those found guilty or any of the same offenses are government officials,
employees or officers including members of police agencies and the armed
forces." (Sec. 19)
(10) Planting of dangerous drugs as evidence in drug offenses with the
mandatory death penalty if convicted are government officials, employees or
officers
"Any such above government official, employee or officer who is found
guilty of 'planting' any dangerous drugs punished in Section s 3, 4, 7, 8, 9 and
13 of Article II and Sections 14, 14-A, 15, and 16 of Article III (of the
Dangerous Drugs Act of 1972) in the person or in the immediate vicinity of
another as evidence to implicate the latter, shall suffer the same penalty as
therein provided." (Sec. 19)
(11) In all the crimes in RA. No. 7659 in their qualified form
"When in the commission of the crime, advantage was taken by the offender
of his public position, the penalty to be imposed shall be in its maximum [of
death] regardless of mitigating circumstances.
The maximum penalty [of death] shall be imposed if the offense was
committed by any person who belongs to an organized/syndicated crime
group.
An organized/syndicated crime group means a group of two or more persons
collaborating, confederating or mutually helping one another for purposes of
gain in the commission of any crime." (Sec. 23)
It is specifically against the foregoing capital crimes that the test of
heinousness must be squarely applied.
The evil of a crime may take various forms. There are crimes that are, by
their very nature, despicable, either because life was callously taken or the
victim is treated like an animal and utterly dehumanized as to completely
disrupt the normal course of his or her growth as a human being. The right
of a person is not only to live but to live a quality life, and this means that the
rest of society is obligated to respect his or her individual personality, the
integrity and the sanctity of his or her own physical body, and the value he or
she puts in his or her own spiritual, psychological, material and social
preferences and needs. Seen in this light, the capital crimes of kidnapping and
serious illegal detention for ransom resulting in the death of the victim or the
victim is raped, tortured, or subjected to dehumanizing acts; destructive arson
resulting in death, and drug offenses involving minors or resulting in the
death of the victim in the case of other crimes; as well as murder, rape,
parricide, infanticide, kidnapping and serious illegal detention where the
victim is detained for more than three days or serious physical injuries were
inflicted on the victim or threats to kill him were made or the victim is a
minor, robbery with homicide, rape or intentional mutilation, destructive
arson, and carnapping where the owner, driver or occupant of the carnapped
vehicle is killed or raped, which are penalized by reclusion perpetua to death,
are clearly heinous by their very nature.
There are crimes, however, in which the abomination lies in the significance
and implications of the subject criminal acts in the scheme of the larger socio-
281
political and economic context in which the state finds itself to be struggling
to develop and provide for its poor and underprivileged masses. Reeling from
decades of corrupt tyrannical rule that bankrupted the government and
impoverished the population, the Philippine Government must muster the
political will to dismantle the culture of corruption, dishonesty, greed and
syndicated criminality that so deeply entrenched itself in the structures of
society and psyche of the populace. Terribly lacking the money to provide
even the most basic services to its people, any form of misappropriation or
misapplication of government funds translates to an actual threat to the very
existence of government, and in turn, the very survival of the people it
governs over. Viewed in this context, no less heinous are the effects and
repercussions of crimes like qualified bribery, destructive arson resulting in
death, and drug offenses involving government officials, employees or
officers, that their perpetrators must not be allowed to cause further
destruction and damage to society.
We have no doubt, therefore, that insofar as the element of heinousness is
concerned, R.A. No. 7659 has correctly identified crimes warranting the
mandatory penalty of death. As to the other crimes in R.A. No. 7659
punished by reclusion perpetua to death, they are admittingly no less
abominable than those mandatorily penalized by death. The proper time to
determine their heinousness in contemplation of law, is when on automatic
review, we are called to pass on a death sentence involving crimes punishable
by reclusion perpetua to death under R.A. No. 7659, with the trial court
meting out the death sentence in exercise of judicial discretion. This is not to
say, however, that the aggravating circumstances under the Revised Penal
Code need be additionally alleged as establishing the heinousness of the
crime for the trial court to validly impose the death penalty in the crimes
under R.A. No. 7659 which are punished with the flexible penalty of
reclusion perpetua to death.
In the first place, the 1987 Constitution did not amend or repeal the provisions
of the Revised Penal Code relating to aggravating circumstances. Secondly,
R.A. No. 7659, while it specifies circumstances that generally qualify a crime
provided therein to be punished by the maximum penalty of death, neither
amends nor repeals the aggravating circumstances under the Revised Penal
Code. Thus, construing R.A. No. 7659 in parimateria with the Revised Penal
Code, death may be imposed when (1) aggravating circumstances attend the
commission of the crime as to make operative the provision of the Revised
Penal Code regarding the imposition of the maximum penalty; and (2) other
circumstances attend the commission of the crime which indubitably
characterize the same as heinous in contemplation of R.A. No. 7659 that
justify the imposition of the death, albeit the imposable penalty is reclusion
perpetua to death. Without difficulty, we understand the rationale for the
guided discretion granted in the trial court to cognize circumstances that
characterize the commission of the crime as heinous. Certainly there is an
infinity of circumstances that may attend the commission of a crime to the
same extent that there is no telling the evil that man is capable of. The
legislature cannot and need not foresee and inscribe in law each and every
loathsome act man is capable of. It is sufficient thus that R.A. 7659 provides
the test and yardstick for the determination of the legal situation warranting
the imposition of the supreme penalty of death. Needless to say, we are not
unaware of the ever existing danger of abuse of discretion on the part of the
trial court in meting out the death sentence. Precisely to reduce to nil the
possibility of executing an innocent man or one criminal but not heinously
criminal, R.A. 7659 is replete with both procedural and substantive
safeguards that ensure only the correct application of the mandate of R.A.
No. 7659.
In the course of the congressional debates on the constitutional requirement
that the death penalty be re-imposed for compelling reasons involving
heinous crimes, we note that the main objection to the death penalty bill
revolved around the persistent demand of the abolitionists for a statement of
the reason in each and every heinous crime and statistical proof the such
compelling reason actually exists.
We believe, however, that the elements of heinousness and compulsion are
inseparable and are, in fact, interspersed with each other. Because the subject
crimes are either so revolting and debasing as to violate the most minimum
of the human standards of decency or its effects, repercussions, implications
and consequences so destructive, destabilizing, debilitating, or aggravating in
the context of our socio-political and economic agenda as a developing
nation, these crimes must be frustrated, curtailed and altogether eradicated.
There can be no ifs or buts in the face of evil, and we cannot afford to wait
until we rub elbows with it before grasping it by the ears and thrashing it to
its demission.
The abolitionists in congress insisted that all criminal reforms first be pursued
and implemented before the death penalty be re-imposed in case such reforms
prove unsuccessful. They claimed that the only compelling reason
282
contemplated of by the constitution is that nothing else but the death penalty
is left for the government to resort to that could check the chaos and the
destruction that is being caused by unbridled criminality. Three of our
colleagues, are of the opinion that the compelling reason required by the
constitution is that there occurred a dramatic and significant change in the
socio-cultural milieu after the suspension of the death penalty on February 2,
1987 such as an unprecedented rise in the incidence of criminality. Such are,
however, interpretations only of the phrase "compelling reasons" but not of
the conjunctive phrase "compelling reasons involving heinous crimes". The
imposition of the requirement that there be a rise in the incidence of
criminality because of the suspension of the death penalty, moreover, is an
unfair and misplaced demand, for what it amounts to, in fact, is a requirement
that the death penalty first proves itself to be a truly deterrent factor in
criminal behavior. If there was a dramatically higher incidence of criminality
during the time that the death penalty was suspended, that would have proven
that the death penalty was indeed a deterrent during the years before its
suspension. Suffice it to say that the constitution in the first place did not
require that the death penalty be first proven to be a deterrent; what it requires
is that there be compelling reasons involving heinous crimes.
Article III, Section 19 (1) of the 1987 Constitution simply states that
congress, for compelling reasons involving heinous crimes, may re-impose
the death penalty. Nothing in the said provision imposes a requirement that
for a death penalty bill to be valid, a positive manifestation in the form of a
higher incidence of crime should first be perceived and statistically proven
following the suspension of the death penalty. Neither does the said provision
require that the death penalty be resorted to as a last recourse when all other
criminal reforms have failed to abate criminality in society. It is immaterial
and irrelevant that R.A. No. 7659 cites that there has been an "alarming
upsurge of such crimes", for the same was never intended by said law to be
the yardstick to determine the existence of compelling reasons involving
heinous crimes. Fittingly, thus, what R.A. No. 7659 states is that "the
Congress, in the interest of justice, public order and rule of law, and the need
to rationalize and harmonize the penal sanctions for heinous crimes, finds
compelling reasons to impose the death penalty for said crimes."
We now proceed to answer accused-appellant's other ground for attacking the
constitutionality of R.A. No. 7659, i.e., that the death penalty imposed in rape
is violative of the constitutional proscription against cruel, degrading or
inhuman punishment.
Accused-appellant first claims that the death penalty is per se a cruel,
degrading or inhuman punishment as ruled by the United States (U.S.)
Supreme Court in Furman v. Georgia.[41] To state, however, that the U.S.
Supreme Court, in Furman, categorically ruled that the death penalty is a
cruel, degrading or inhuman punishment, is misleading and inaccurate.
The issue in Furman was not so much death penalty itself but the arbitrariness
pervading the procedures by which the death penalty was imposed on the
accused by the sentencing jury. Thus, the defense theory in Furman centered
not so much on the nature of the death penalty as a criminal sanction but on
the discrimination against the black accused who is meted out the death
penalty by a white jury that is given the unconditional discretion to determine
whether or not to impose the death penalty. In fact, the long road of the
American abolitionist movement leading to the landmark case of Furman was
trekked by American civil rights advocates zealously fighting against racial
discrimination. Thus, the U.S. Supreme Court stated in Furman:
"We cannot say from facts disclosed in these records that these defendants
were sentenced to death because they were black. Yet our task is not
restricted to an effort to divine what motives impelled these death penalties.
Rather, we deal with a system of law and of justice that leaves to the
uncontrolled discretion of judges or juries the determination whether
defendants committing these crimes should die x x x.
xxx
In a Nation committed to equal protection of the laws there is no permissible
'caste' aspect of law enforcement. Yet we know that the discretion of judges
and juries in imposing the death penalty enables the penalty to be selectively
applied, feeding prejudices against the accused if he is poor and despised x x
x.
xxx
Thus, these discretionary statutes are unconstitutional in their operation.
They are pregnant with discrimination and discrimination is an ingredient not
compatible with the idea of equal protection of the laws that is implicit in the
ban on 'cruel and unusual' punishments."
283
Furman, thus, did not outlaw the death penalty because it was cruel and
unusual per se. While the U.S. Supreme Court nullified all discretionary
death penalty statutes in Furman, it did so because the discretion which these
statutes vested in the trial judges and sentencing juries was uncontrolled and
without any parameters, guidelines, or standards intended to lessen, if not
altogether eliminate, the intervention of personal biases, prejudices and
discriminatory acts on the part of the trial judges and sentencing juries.
Consequently, in the aftermath of Furman, when most of the states re-enacted
their death penalty statutes now bearing the procedural checks that were
required by the U.S. Supreme Court, said court affirmed the constitutionality
of the new death penalty statutes in the cases of Gregg v. Georgia,[42] Jurek
v. Texas,[43] and Profitt v. Florida.[44]
Next, accused-appellant asseverates that the death penalty is a cruel, inhuman
or degrading punishment for the crime of rape mainly because the latter,
unlike murder, does not involve the taking of life. In support of his
contention, accused-appellant largely relies on the ruling of the U.S. Supreme
Court in Coker v. Georgia.[45]
In Coker, the U.S. Supreme Court ruled as follows:
"x x x It is now settled that the death penalty is not invariably cruel and
unusual punishment within the meaning of the Eighth Amendment; it is not
inherently barbaric or an unacceptable mode of punishment for crime; neither
is it always disproportionate to the crime for which it is imposed. It is also
established that imposing capital punishment, at least for murder, in
accordance with the procedures provided under the Georgia statutes saves the
sentence from the infirmities which led the Court to invalidate the prior
Georgia capital punishment statute in Furman v. Georgia x x x.
xxx
In Gregg [v. Georgia] x x x the Court's judgment was that the death penalty
for deliberate murder was neither the purposeless imposition of severe
punishment nor a punishment grossly disproportionate to the crime. But the
Court reserved the question of the constitutionality of the death penalty when
imposed for other crimes. x x x
That question, with respect to rape of an adult woman, is now before us.
xxx
x x x [T]he public judgment with respect to rape, as reflected in the statutes
providing the punishment for that crime, has been dramatically different. In
reviving death penalty laws to satisfy Furman's mandate, none of the States
that had not previously authorized death for rape chose to include rape among
capital felonies. Of the 16 States in which rape had been a capital offense,
only three provided the death penalty for rape of an adult woman in their
revised statutes -- Georgia, North Carolina. and Louisiana. In the latter two
States, the death penalty was mandatory for those found guilty, and those
laws were invalidated by Woodson and Roberts. When Louisiana and North
Carolina, respondent to those decisions, again revised their capital
punishment laws, they reenacted the death penalty for murder but not for
rape; none of the seven other legislatures that to our knowledge have amended
or replaced their death penalty statutes since July 2, 1976, including four
States (in addition to Louisiana and North Carolina) that had authorized the
death sentence for rape prior to 1972 and had reacted to Furman with
mandatory statutes, included rape among the crimes for which death was an
authorized punishment.
xxx
It should be noted that Florida, Mississippi, and Tennessee also authorized
the death penalty in some rape cases, but only where the victim was a child,
and the rapist an adult, the Tennessee statute has since been invalidated
because the death sentence was mandatory. x x x The upshot is that Georgia
is the sole jurisdiction in the United States at the present time that authorizes
a sentence of death when the rape victim is an adult woman, and only two
other jurisdictions provide capital punishment when the victim is a child
The current judgment with respect to the death penalty for rape is not wholly
unanimous among state legislatures, but it obviously weighs very heavily on
the side of rejecting capital punishment as a suitable penalty for raping an
adult woman.
x x x [T]he legislative rejection of capital punishment for rape strongly
confirms our own judgment, which is that death is indeed a disproportionate
penalty for the crime of raping an adult woman.
284
We do not discount the seriousness of rape as a crime. It is highly
reprehensible, both in a moral sense and in its almost total contempt for the
personal integrity and autonomy of the female victim and for the latter's
privilege of choosing those with whom intimate relationships are to be
established. Short of homicide, it is the 'ultimate violation of self.' It is also
a violent crime because it normally involves force, or the threat of force or
intimidation, to over come the will and the capacity of the victim to resist.
Rape is very often accompanied by physical injury to the female and can also
inflict mental and psychological damage. Because it undermines the
community's sense of security, there is public injury as well.
Rape is without doubt deserving of serious punishment; but in terms of moral
depravity and of the injury to the person and to the public, it does not compare
with murder, which does involve the unjustified taking of human life.
Although it may be accompanied by another crime, rape by definition does
not include the death of or even the serious injury to another person. The
murderer kills; the rapist, if no more than that, does not. Life is over for the
victim of the murderer; for the rape victim, life may not be nearly so happy
as it was, but it is not over and normally is not beyond repair. We have the
abiding conviction that the death penalty, which 'is unique in its severity and
irrevocability' x x x is an excessive penalty for the rapist who, as such, does
not take human life."
The U.S. Supreme Court based its foregoing ruling on two grounds: first, that
the public has manifested its rejection of the death penalty as a proper
punishment for the crime of rape through the willful omission by the state
legislatures to include rape in their new death penalty statutes in the aftermath
of Furman; and second, that rape, while concededly a dastardly contemptuous
violation of a woman's spiritual integrity, physical privacy, and psychological
balance, does not involve the taking of life.
Anent the first ground, we fail to see how this could have any bearing on the
Philippine experience and in the context of our own culture.
Anent the second ground, we disagree with the court's predicate that the
gauge of whether or not a crime warrants the death penalty or not, is the
attendance of the circumstance of death on the part of the victim. Such a
premise is in fact an ennobling of the biblical notion of retributive justice of
"an eye for an eye, a tooth for a tooth". We have already demonstrated earlier
in our discussion of heinous crimes that the forfeiture of life simply because
life was taken, never was a defining essence of the death penalty in the
context of our legal history and cultural experience; rather, the death penalty
is imposed in heinous crimes because the perpetrators thereof have
committed unforgivably execrable acts that have so deeply dehumanized a
person or criminal acts with severely destructive effects on the national
efforts to lift the masses from abject poverty through organized governmental
strategies based on a disciplined and honest citizenry, and because they have
so caused irreparable and substantial injury to both their victim and the
society and a repetition of their acts would pose actual threat to the safety of
individuals and the survival of government, they must be permanently
prevented from doing so. At any rate, this court has no doubts as to the innate
heinousness of the crime of rape, as we have held in the case of People v.
Cristobal: [46]
"Rape is the forcible violation of the sexual intimacy of another person. It
does injury to justice and charity. Rape deeply wounds the respect, freedom,
and physical and moral integrity to which every person has a right. It causes
grave damage that can mark the victim for life. It is always an intrinsically
evil act xxx an outrage upon decency and dignity that hurts not only the victim
but the society itself."
We are not unaware that for all the legal posturings we have so essayed here,
at the heart of the issue of capital punishment is the wistful, sentimental life-
and-death question to which all of us, without thinking, would answer, "life,
of course, over death". But dealing with the fundamental question of death
provides a context for struggling with even more basic questions, for to
grapple with the meaning of death is, in an indirect way, to ask the meaning
of life. Otherwise put, to ask what the rights are of the dying is to ask what
the rights are of the living.
"Capital punishment ought not to be abolished solely because it is
substantially repulsive, if infinitely less repulsive than the acts which invoke
it. Yet the mounting zeal for its abolition seems to arise from a
sentimentalized hyperfastidiousness that seeks to expunge from the society
all that appears harsh and suppressive. If we are to preserve the humane
society we will have to retain sufficient strength of character and will to do
the unpleasant in order that tranquillity and civility may rule
comprehensively. It seems very likely that capital punishment is a x x x
necessary, if limited factor in that maintenance of social tranquillity and
ought to be retained on this ground. To do otherwise is to indulge in the
285
luxury of permitting a sense of false delicacy to reign over the necessity of
social survival." [47]

WHEREFORE, in view of all the foregoing, the Motion for Reconsideration

and the Supplemental Motion for Reconsideration are hereby DENIED[48]
for LACK OF MERIT.

286
ATKINS v. VIRGINIA
CERTIORARI TO THE SUPREME COURT OF VIRGINIA
No. 00-8452. Argued February 20, 2002-Decided June
20, 2002
JUSTICE STEVENS delivered the opinion of the Court.
Those mentally retarded persons who meet the law's
requirements for criminal responsibility should be tried
and
punished when they commit crimes. Because of their
disabilities in areas of reasoning, judgment, and control of
their impulses, however, they do not act with the level of
moral culpability that characterizes the most serious adult
criminal conduct. Moreover, their impairments can
jeopardize the
[307]
reliability and fairness of capital proceedings against
mentally retarded defendants. Presumably for these
reasons, in the 13 years since we decided Penry v.
Lynaugh, 492 U. S. 302 (1989), the American public,
legislators, scholars, and judges have deliberated over
the question whether the death penalty should ever be
imposed on a mentally retarded criminal. The consensus
reflected in those deliberations informs our answer to the
question presented by this case: whether such
executions are "cruel and unusual punishments"
prohibited by the Eighth Amendment to the Federal
Constitution.
I
Petitioner, Daryl Renard Atkins, was convicted of
abduction, armed robbery, and capital murder, and
sentenced to death. At approximately midnight on August
16, 1996, Atkins and William Jones, armed with a
semiautomatic handgun, abducted Eric Nesbitt, robbed
him of the money on his person, drove him to an
automated teller machine in his pickup truck where
cameras recorded their withdrawal of additional cash,
then took him to an isolated location where he was shot
eight times and killed.
Jones and Atkins both testified in the guilt phase of
Atkins' trial.[Footnote 1] Each confirmed most of the
details in the other's account of the incident, with the
important exception that each stated that the other had
actually shot and killed Nesbitt. Jones' testimony, which
was both more coherent and credible than Atkins', was
obviously credited by the jury and was sufficient to
establish Atkins' guilt.[Footnote 2] At the penalty
[308]
phase of the trial, the State introduced victim impact
evidence and proved two aggravating circumstances:
future dangerousness and "vileness of the offense." To
prove future dangerousness, the State relied on Atkins'
prior felony convictions as well as the testimony of four
victims of earlier robberies and assaults. To prove the
second aggravator, the prosecution relied upon the trial
record, including pictures of the deceased's body and the
autopsy report.
287
In the penalty phase, the defense relied on one witness,
Dr. Evan Nelson, a forensic psychologist who had
evaluated Atkins before trial and concluded that he was
"mildly mentally retarded."[Footnote 3] His conclusion
was based on interviews with people who knew
Atkins,[Footnote 4] a review of school and court
[309]
records, and the administration of a standard intelligence
test which indicated that Atkins had a full scale IQ of
59.[Footnote 5]
The jury sentenced Atkins to death, but the Virginia
Supreme Court ordered a second sentencing hearing
because the trial court had used a misleading verdict
form. 257 Va. 160,510 S. E. 2d 445 (1999). At the
resentencing, Dr. Nelson again testified. The State
presented an expert rebuttal witness, Dr. Stanton Same
now, who expressed the opinion that Atkins was not
mentally retarded, but rather was of "average
intelligence, at least," and diagnosable as having
antisocial personality disorder.[Footnote 6] App.476. The
jury again sentenced Atkins to death.
[310]
The Supreme Court of Virginia affirmed the imposition of
the death penalty. 260 Va. 375, 385, 534 S. E. 2d 312,
318 (2000). Atkins did not argue before the Virginia
Supreme Court that his sentence was disproportionate to
penalties imposed for similar crimes in Virginia, but he did
contend "that he is mentally retarded and thus cannot be
sentenced to death." Id., at 386, 534 S. E. 2d, at 318.
The majority of the state court rejected this contention,
relying on our holding in Penry. 260 Va., at 387, 534 S. E.
2d, at 319. The court was "not willing to commute Atkins'
sentence of death to life imprisonment merely because of
his IQ score." Id., at 390, 534 S. E. 2d, at 321.
Justice Hassell and Justice Koontz dissented. They
rejected Dr. Samenow's opinion that Atkins possesses
average intelligence as "incredulous as a matter of law,"
and concluded that "the imposition of the sentence of
death upon a criminal defendant who has the mental age
of a child between the ages of 9 and 12 is excessive." Id.,
at 394, 395-396, 534 S. E. 2d, at 323-324. In their
opinion, "it is indefensible to conclude that individuals
who are mentally retarded are not to some degree less
culpable for their criminal acts. By definition, such
individuals have substantial limitations not shared by the
general population. A moral and civilized society
diminishes itself if its system of justice does not afford
recognition and consideration of those limitations in a
meaningful way." Id., at 397, 534 S. E. 2d, at 325.
Because of the gravity of the concerns expressed by the
dissenters, and in light of the dramatic shift in the state
legislative landscape that has occurred in the past 13
years, we granted certiorari to revisit the issue that we
first addressed in the Penry case. 533 U. S. 976 (2001).
[311]
II
288
The Eighth Amendment succinctly prohibits "[e]xcessive"
sanctions. It provides: "Excessive bail shall not be
required, nor excessive fines imposed, nor cruel and
unusual punishments inflicted." In Weems v. United
States, 217 U. S. 349 (1910), we held that a punishment
of 12 years jailed in irons at hard and painful labor for the
crime of falsifying records was excessive. We explained
"that it is a precept of justice that punishment for crime
should be graduated and proportioned to [the]
offense." Id., at 367. We have repeatedly applied this
proportionality precept in later cases interpreting the
Eighth Amendment. See Harmelin v. Michigan, 501 U. S.
957, 997-998 (1991) (KENNEDY, J., concurring in part
and concurring in judgment); see also id., at 1009-1011
(White, J., dissenting).[Footnote 7] Thus, even though
"imprisonment for ninety days is not, in the abstract, a
punishment which is either cruel or unusual," it may not
be imposed as a penalty for "the 'status' of narcotic
addiction," Robinson v. California, 370 U. S. 660, 666-
667 (1962), because such a sanction would be
excessive. As Justice Stewart explained
in Robinson: "Even one day in prison would be a cruel
and unusual punishment for the 'crime' of having a
common cold." Id., at 667.
A claim that punishment is excessive is judged not by the
standards that prevailed in 1685 when Lord Jeffreys
presided over the "Bloody Assizes" or when the Bill of
Rights was adopted, but rather by those that currently
prevail. As Chief Justice Warren explained in his opinion
in Trop v. Dulles, 356 U. S. 86 (1958): "The basic
concept underlying the Eighth Amendment is nothing less
than the dignity of man . . . . The Amendment must draw
its meaning from the
[312]
evolving standards of decency that mark the progress of
a maturing society." Id., at 100-101.
Proportionality review under those evolving standards
should be informed by "'objective factors to the maximum
possible extent,'" see Harmelin, 501 U. S., at 1000
(quoting Rummel v. Estelle, 445 U. S. 263, 274-275
(1980)). We have pinpointed that the "clearest and most
reliable objective evidence of contemporary values is the
legislation enacted by the country's legislatures." Penry,
492 U. S., at 331. Relying in part on such legislative
evidence, we have held that death is an impermissibly
excessive punishment for the rape of an adult
woman, Coker v. Georgia, 433 U. S. 584, 593-596
(1977), or for a defendant who neither took life, attempted
to take life, nor intended to take life, Enmund v. Florida,
458 U. S. 782, 789-793 (1982). In Coker, we focused
primarily on the then-recent legislation that had been
enacted in response to our decision 10 years earlier
in Furman v. Georgia, 408 U. S. 238 (1972) (per curiam),
to support the conclusion that the "current judgment,"
though "not wholly unanimous," weighed very heavily on
the side of rejecting capital punishment as a "suitable
penalty for raping an adult woman." Coker, 433 U. S., at
596. The "current legislative judgment" relevant to our
decision in Enmund was less clear than in Coker but
"nevertheless weigh[ed] on the side of rejecting capital
289
punishment for the crime at issue." Enmund, 458 U. S., at
793.
We also acknowledged in Coker that the objective
evidence, though of great importance, did not "wholly
determine" the controversy, "for the Constitution
contemplates that in the end our own judgment will be
brought to bear on the question of the acceptability of the
death penalty under the Eighth Amendment." 433 U. S.,
at 597. For example, in Enmund, we concluded by
expressing our own judgment about the issue:
"For purposes of imposing the death penalty, Enmund's
criminal culpability must be limited to his participation
[313]
in the robbery, and his punishment must be tailored to his
personal responsibility and moral guilt. Putting Enmund to
death to avenge two killings that he did not commit and
had no intention of committing or causing does not
measurably contribute to the retributive end of ensuring
that the criminal gets his just deserts. This is the
judgment of most of the legislatures that have recently
addressed the matter, and we have no reason to
disagree with that judgment for purposes of construing
and applying the Eighth Amendment." 458 U. S., at 801
(emphasis added).
Thus, in cases involving a consensus, our own judgment
is "brought to bear," Coker, 433 U. S., at 597, by asking
whether there is reason to disagree with the judgment
reached by the citizenry and its legislators.
Guided by our approach in these cases, we shall first
review the judgment of legislatures that have addressed
the suitability of imposing the death penalty on the
mentally retarded and then consider reasons for agreeing
or disagreeing with their judgment.
III
The parties have not called our attention to any state
legislative consideration of the suitability of imposing the
death penalty on mentally retarded offenders prior to
1986. In that year, the public reaction to the execution of
a mentally retarded murderer in Georgia[Footnote 8]
apparently led to the enact-
[314]
ment of the first state statute prohibiting such
executions.[Footnote 9] In 1988, when Congress enacted
legislation reinstating the federal death penalty, it
expressly provided that a "sentence of death shall not be
carried out upon a person who is mentally
retarded."[Footnote 10] In 1989, Maryland enacted a
similar prohibition.[Footnote 11] It was in that year that
we decided Penry, and concluded that those two state
enactments, "even when added to the 14 States that
have rejected capital punishment completely, do not
provide sufficient evidence at present of a national
consensus." 492 U. S., at 334.
Much has changed since then. Responding to the
national attention received by the Bowden execution and
our decision in Penry, state legislatures across the
290
country began to address the issue. In 1990, Kentucky
and Tennessee enacted statutes similar to those in
Georgia and Maryland, as did New Mexico in 1991, and
Arkansas, Colorado, Washington, Indiana, and Kansas in
1993 and 1994.[Footnote 12] In 1995, when New York
reinstated its death penalty, it emulated the Federal
Government by expressly exempting the mentally
retarded.[Footnote 13] Nebraska followed suit in
1998.[Footnote 14] There appear
[315]
to have been no similar enactments during the next two
years, but in 2000 and 2001 six more States--South
Dakota, Arizona, Connecticut, Florida, Missouri, and
North Carolina--joined the procession.[Footnote 15] The
Texas Legislature unanimously adopted a similar
bill,[Footnote 16] and bills have passed at least one
house in other States, including Virginia and
Nevada.[Footnote 17]
It is not so much the number of these States that is
significant, but the consistency of the direction of
change.[Footnote 18] Given the well-known fact that
anticrime legislation is far more popular than legislation
providing protections for persons guilty of violent crime,
the large number of States prohibiting the execution of
mentally retarded persons (and the
[316]
complete absence of States passing legislation
reinstating the power to conduct such executions)
provides powerful evidence that today our society views
mentally retarded offenders as categorically less culpable
than the average criminal. The evidence carries even
greater force when it is noted that the legislatures that
have addressed the issue have voted overwhelmingly in
favor of the prohibition.[Footnote 19] Moreover, even in
those States that allow the execution of mentally retarded
offenders, the practice is uncommon. Some States, for
example New Hampshire and New Jersey, continue to
authorize executions, but none have been carried out in
decades. Thus there is little need to pursue legislation
barring the execution of the mentally retarded in those
States. And it appears that even among those States that
regularly execute offenders and that have no prohibition
with regard to the mentally retarded, only five have
executed offenders possessing a known IQ less than 70
since we decided Penry.[Footnote 20] The practice,
therefore, has become truly unusual, and it is fair to say
that a national consensus has developed against
it.[Footnote 21]
[317]
To the extent there is serious disagreement about the
execution of mentally retarded offenders, it is in
determining which offenders are in fact retarded. In this
case, for instance, the Commonwealth of Virginia
disputes that Atkins suffers from mental retardation. Not
all people who claim to be mentally retarded will be so
impaired as to fall within the range of mentally retarded
offenders about whom there is a national consensus. As
was our approach in Ford v. Wainwright, 477 U. S.
399 (1986), with regard to insanity, "we leave to the
291
State[s] the task of developing appropriate ways to
enforce the constitutional restriction upon [their]
execution of sentences." Id., at 405, 416-417.[Footnote
22]
IV
This consensus unquestionably reflects widespread
judgment about the relative culpability of mentally
retarded offenders, and the relationship between mental
retardation and the penological purposes served by the
death penalty. Additionally, it suggests that some
characteristics of mental retardation undermine the
strength of the procedural protections that our capital
jurisprudence steadfastly guards.
[318]
As discussed above, clinical definitions of mental
retardation require not only subaverage intellectual
functioning, but also significant limitations in adaptive
skills such as communication, self-care, and self-direction
that became manifest before age 18. Mentally retarded
persons frequently know the difference between right and
wrong and are competent to stand trial. Because of their
impairments, however, by definition they have diminished
capacities to understand and process information, to
communicate, to abstract from mistakes and learn from
experience, to engage in logical reasoning, to control
impulses, and to understand the reactions of
others.[Footnote 23] There is no evidence that they are
more likely to engage in criminal conduct than others, but
there is abundant evidence that they often act on impulse
rather than pursuant to a premeditated plan, and that in
group settings they are followers rather than
leaders.[Footnote 24] Their deficiencies do not warrant
an exemption from criminal sanctions, but they do
diminish their personal culpability.
In light of these deficiencies, our death penalty
jurisprudence provides two reasons consistent with the
legislative consensus that the mentally retarded should
be categorically excluded from execution. First, there is a
serious question as to whether either justification that we
have recognized as
[319]
a basis for the death penalty applies to mentally retarded
offenders. Gregg v. Georgia, 428 U. S. 153, 183 (1976)
(joint opinion of Stewart, Powell, and STEVENS, JJ.),
identified "retribution and deterrence of capital crimes by
prospective offenders" as the social purposes served by
the death penalty. Unless the imposition of the death
penalty on a mentally retarded person "measurably
contributes to one or both of these goals, it 'is nothing
more than the purposeless and needless imposition of
pain and suffering,' and hence an unconstitutional
punishment." Enmund, 458 U. S., at 798.
With respect to retribution--the interest in seeing that the
offender gets his "just deserts"--the severity of the
appropriate punishment necessarily depends on the
culpability of the offender. Since Gregg, our jurisprudence
has consistently confined the imposition of the death
penalty to a narrow category of the most serious crimes.
292
For example, in Godfrey v. Georgia, 446 U. S.
420 (1980), we set aside a death sentence because the
petitioner's crimes did not reflect "a consciousness
materially more 'depraved' than that of any person guilty
of murder." Id., at 433. If the culpability of the average
murderer is insufficient to justify the most extreme
sanction available to the State, the lesser culpability of
the mentally retarded offender surely does not merit that
form of retribution. Thus, pursuant to our narrowing
jurisprudence, which seeks to ensure that only the most
deserving of execution are put to death, an exclusion for
the mentally retarded is appropriate.
With respect to deterrence--the interest in preventing
capital crimes by prospective offenders--"it seems likely
that 'capital punishment can serve as a deterrent only
when murder is the result of premeditation and
deliberation,'" Enmund, 458 U. S., at 799. Exempting the
mentally retarded from that punishment will not affect the
"cold calculus that precedes the decision" of other
potential murderers. Gregg, 428 U. S., at 186. Indeed,
that sort of calculus is at the opposite end of the
spectrum from behavior of mentally retarded
[320]
offenders. The theory of deterrence in capital sentencing
is predicated upon the notion that the increased severity
of the punishment will inhibit criminal actors from carrying
out murderous conduct. Yet it is the same cognitive and
behavioral impairments that make these defendants less
morally culpable--for example, the diminished ability to
understand and process information, to learn from
experience, to engage in logical reasoning, or to control
impulses--that also make it less likely that they can
process the information of the possibility of execution as
a penalty and, as a result, control their conduct based
upon that information. Nor will exempting the mentally
retarded from execution lessen the deterrent effect of the
death penalty with respect to offenders who are not
mentally retarded. Such individuals are unprotected by
the exemption and will continue to face the threat of
execution. Thus, executing the mentally retarded will not
measurably further the goal of deterrence.
The reduced capacity of mentally retarded offenders
provides a second justification for a categorical rule
making such offenders ineligible for the death penalty.
The risk "that the death penalty will be imposed in spite of
factors which may call for a less severe penalty," Lockett
v. Ohio, 438 U. S. 586, 605 (1978), is enhanced, not only
by the possibility of false confessions,[Footnote 25] but
also by the lesser ability of mentally retarded defendants
to make a persuasive showing of mitigation in the face of
prosecutorial evidence of one or more aggravating
factors. Mentally retarded defendants may be less able to
give meaningful assistance to their counsel and
[321]
are typically poor witnesses, and their demeanor may
create an unwarranted impression of lack of remorse for
their crimes. As Penry demonstrated, moreover, reliance
on mental retardation as a mitigating factor can be a two-
edged sword that may enhance the likelihood that the
aggravating factor of future dangerousness will be found
293
by the jury. 492 U. S., at 323-325. Mentally retarded
defendants in the aggregate face a special risk of
wrongful execution.
Our independent evaluation of the issue reveals no
reason to disagree with the judgment of "the legislatures
that have recently addressed the matter" and concluded
that death is not a suitable punishment for a mentally
retarded criminal. We are not persuaded that the
execution of mentally retarded criminals will measurably
advance the deterrent or the retributive purpose of the
death penalty. Construing and applying the Eighth
Amendment in the light of our "evolving standards of
decency," we therefore conclude that such punishment is
excessive and that the Constitution "places a substantive
restriction on the State's power to take the life" of a
mentally retarded offender. Ford, 477 U. S., at 405.
The judgment of the Virginia Supreme Court is reversed,
and the case is remanded for further proceedings not
inconsistent with this opinion.
It is so ordered.
CHIEF JUSTICE REHNQUIST, with whom JUSTICE
SCALIA and JUSTICE THOMAS join, dissenting.
The question presented by this case is whether a national
consensus deprives Virginia of the constitutional power to
impose the death penalty on capital murder defendants
like petitioner, i. e., those defendants who indisputably
are competent to stand trial, aware of the punishment
they are about to suffer and why, and whose mental
retardation has been found an insufficiently compelling
reason to lessen their individual responsibility for the
crime. The Court pronounces
[322]
the punishment cruel and unusual primarily because 18
States recently have passed laws limiting the death
eligibility of certain defendants based on mental
retardation alone, despite the fact that the laws of 19
other States besides Virginia continue to leave the
question of proper punishment to the individuated
consideration of sentencing judges or juries familiar with
the particular offender and his or her crime. See ante, at
314-315.
I agree with JUSTICE SCALIA, post, at 337-338
(dissenting opinion), that the Court's assessment of the
current legislative judgment regarding the execution of
defendants like petitioner more resembles a post
hocrationalization for the majority's subjectively preferred
result rather than any objective effort to ascertain the
content of an evolving standard of decency. I write
separately, however, to call attention to the defects in the
Court's decision to place weight on foreign laws, the
views of professional and religious organizations, and
opinion polls in reaching its conclusion. See ante, at 316-
317, n. 21. The Court's suggestion that these sources are
relevant to the constitutional question finds little support
in our precedents and, in my view, is antithetical to
considerations of federalism, which instruct that any
"permanent prohibition upon all units of democratic
government must [be apparent] in the operative acts
294
(laws and the application of laws) that the people have
approved." Stanford v. Kentucky, 492 U. S. 361, 377
(1989) (plurality opinion). The Court's uncritical
acceptance of the opinion poll data brought to our
attention, moreover, warrants additional comment,
because we lack sufficient information to conclude that
the surveys were conducted in accordance with generally
accepted scientific principles or are capable of supporting
valid empirical inferences about the issue before us.
In making determinations about whether a punishment is
"cruel and unusual" under the evolving standards of
decency embraced by the Eighth Amendment, we have
emphasized that legislation is the "clearest and most
reliable objective
[323]
evidence of contemporary values." Penry v. Lynaugh,
492 U. S. 302, 331 (1989). See also McCleskey v.
Kemp, 481 U. S. 279, 300 (1987). The reason we ascribe
primacy to legislative enactments follows from the
constitutional role legislatures play in expressing policy of
a State. "'[I]n a democratic society legislatures, not
courts, are constituted to respond to the will and
consequently the moral values of the people.' " Gregg v.
Georgia, 428 U. S. 153, 175-176 (1976) (joint opinion of
Stewart, Powell, and STEVENS, JJ.) (quoting Furman v.
Georgia, 408 U. S. 238, 383 (1972) (Burger, C. J.,
dissenting)). And because the specifications of
punishments are "peculiarly questions of legislative
policy," Gore v. United States, 357 U. S. 386, 393 (1958),
our cases have cautioned against using" 'the aegis of the
Cruel and Unusual Punishment Clause'" to cut off the
normal democratic processes, Gregg, supra, at 176
(quoting Powell v. Texas, 392 U. S. 514, 533 (1968)
(plurality opinion)).
Our opinions have also recognized that data concerning
the actions of sentencing juries, though entitled to less
weight than legislative judgments, "'is a significant and
reliable objective index of contemporary values,'" Coker
v. Georgia, 433 U. S. 584, 596 (1977) (plurality opinion)
(quoting Gregg, supra, at 181), because of the jury's
intimate involvement in the case and its function of
"'maintain[ing] a link between contemporary community
values and the penal system,'" Gregg, supra, at 181
(quoting Witherspoon v. Illinois, 391 U. S. 510, 519, n. 15
(1968)). In Coker, supra, at 596-597, for example, we
credited data showing that "at least 9 out of 10" juries in
Georgia did not impose the death sentence for rape
convictions. And in Enmund v. Florida, 458 U. S. 782,
793-794 (1982), where evidence of the current legislative
judgment was not as "compelling" as that in Coker (but
more so than that here), we were persuaded by
"overwhelming [evidence] that American juries . . .
repudiated imposition of the death penalty" for a
defendant who neither took life nor attempted or intended
to take life.
[324]
In my view, these two sources--the work product of
legislatures and sentencing jury determinations--ought to
be the sole indicators by which courts ascertain the
contemporary American conceptions of decency for
295
purposes of the Eighth Amendment. They are the only
objective indicia of contemporary values firmly supported
by our precedents. More importantly, however, they can
be reconciled with the undeniable precepts that the
democratic branches of government and individual
sentencing juries are, by design, better suited than courts
to evaluating and giving effect to the complex societal
and moral considerations that inform the selection of
publicly acceptable criminal punishments.
In reaching its conclusion today, the Court does not take
notice of the fact that neither petitioner nor his amici have
adduced any comprehensive statistics that would
conclusively prove (or disprove) whether juries routinely
consider death a disproportionate punishment for
mentally retarded offenders like petitioner.[Footnote *]
Instead, it adverts to the fact that other countries have
disapproved imposition of the death penalty for crimes
committed by mentally retarded offenders, see ante, at
316-317, n. 21 (citing the Brief for European Union
as Amicus Curiae 2). I fail to see, how-
[325]
ever, how the views of other countries regarding the
punishment of their citizens provide any support for the
Court's ultimate determination. While it is true that some
of our prior opinions have looked to "the climate of
international opinion," Coker, supra, at 596, n. 10, to
reinforce a conclusion regarding evolving standards of
decency, see Thompson v. Oklahoma, 487 U. S. 815,
830 (1988) (plurality opinion); Enmund, supra, at 796-
797, n. 22; Trop v. Dulles, 356 U. S. 86, 102-103 (1958)
(plurality opinion); we have since explicitly rejected the
idea that the sentencing practices of other countries
could "serve to establish the first Eighth Amendment
prerequisite, that [a] practice is accepted among our
people." Stanford, 492 U. S., at 369, n. 1 (emphasizing
that "American conceptions of decency . . . are
dispositive" (emphasis in original)).
Stanford's reasoning makes perfectly good sense, and
the Court offers no basis to question it. For if it is
evidence of a national consensus for which we are
looking, then the viewpoints of other countries simply are
not relevant. And nothing in Thompson, Enmund, Coker,
or Trop suggests otherwise. Thompson, Enmund,
and Coker rely only on the bare citation of international
laws by the Trop plurality as authority to deem other
countries' sentencing choices germane. But
the Trop plurality--representing the view of only a minority
of the Court--offered no explanation for its own citation,
and there is no reason to resurrect this view given our
sound rejection of the argument in Stanford.
To further buttress its appraisal of contemporary societal
values, the Court marshals public opinion poll results and
evidence that several professional organizations and
religious groups have adopted official positions opposing
the imposition of the death penalty upon mentally
retarded offenders. See ante, at 316-317, n. 21 (citing
Brief for American Psychological Association et al.
as Amici Curiae; Brief for American Association on
Mental Retardation et al. as Amici Curiae; noting that
"representatives of widely diverse reli-
296
[326]
gious communities . . . reflecting Christian, Jewish,
Muslim, and Buddhist traditions . . . 'share a conviction
that the execution of persons with mental retardation
cannot be morally justified' "; and stating that "polling
data shows a widespread consensus among Americans .
. . that executing the mentally retarded is wrong"). In my
view, none should be accorded any weight on the Eighth
Amendment scale when the elected representatives of a
State's populace have not deemed them persuasive
enough to prompt legislative action. In Penry, 492 U. S.,
at 334-335, we were cited similar data and declined to
take them into consideration where the "public sentiment
expressed in [them]" had yet to find expression in state
law. See also Stanford, 492 U. S., at 377 (plurality
opinion) (refusing "the invitation to rest constitutional law
upon such uncertain foundations" as "public opinion polls,
the views of interest groups, and the positions adopted by
various professional associations"). For the Court to rely
on such data today serves only to illustrate its willingness
to proscribe by judicial fiat--at the behest of private
organizations speaking only for themselves--a
punishment about which no across-the-board consensus
has developed through the workings of normal
democratic processes in the laboratories of the States.
Even if I were to accept the legitimacy of the Court's
decision to reach beyond the product of legislatures and
practices of sentencing juries to discern a national
standard of decency, I would take issue with the blind-
faith credence it accords the opinion polls brought to our
attention. An extensive body of social science literature
describes how methodological and other errors can affect
the reliability and validity of estimates about the opinions
and attitudes of a population derived from various
sampling techniques. Everything from variations in the
survey methodology, such as the choice of the target
population, the sampling design used, the questions
asked, and the statistical analyses used to interpret the
data can skew the results. See, e. g., R. Groves, Survey
[327]
Errors and Survey Costs (1989); 1 C. Turner & E. Martin,
Surveying Subjective Phenomena (1984).
The Federal Judicial Center's Reference Manual on
Scientific Evidence 221-271 (1994) and its Manual for
Complex Litigation 21.493, pp. 101-103 (3d ed. 1995),
offer helpful suggestions to judges called upon to assess
the weight and admissibility of survey evidence on a
factual issue before a court. Looking at the polling data
(reproduced in the Appendix to this opinion) in light of
these factors, one cannot help but observe how unlikely it
is that the data could support a valid inference about the
question presented by this case. For example, the
questions reported to have been asked in the various
polls do not appear designed to gauge whether the
respondents might find the death penalty an acceptable
punishment for mentally retarded offenders in rare cases.
Most are categorical (e. g., "Do you think that persons
convicted of murder who are mentally retarded should or
should not receive the death penalty?"), and, as such,
would not elicit whether the respondent might agree or
disagree that all mentally retarded people by definition
297
can never act with the level of culpability associated with
the death penalty, regardless of the severity of their
impairment or the individual circumstances of their crime.
Second, none of the 27 polls cited disclose the targeted
survey population or the sampling techniques used by
those who conducted the research. Thus, even if one
accepts that the survey instruments were adequately
designed to address a relevant question, it is impossible
to know whether the sample was representative enough
or the methodology sufficiently sound to tell us anything
about the opinions of the citizens of a particular State or
the American public at large. Finally, the information
provided to us does not indicate why a particular survey
was conducted or, in a few cases, by whom, factors
which also can bear on the objectivity of the results. In
order to be credited here, such surveys should be offered
as
support to [its] conclusion" that a national consensus has
developed against imposing the death penalty on all
mentally retarded defendants in international opinion, the
views of professional and religious organizations, and
opinion polls not demonstrated to be reliable. Ante, at
317, n. 21. Believing this view to be seriously mistaken, I
dissent.
APPENDIX TO OPINION OF REHNQUIST, C. J.
Poll and survey results reported in Brief for American
Association on Mental Retardation et al. as Amici
Curiae 3a-7a, and cited by the Court, ante, at 317, n. 21:
STAT POLL DAT RESPONS QUESTIO
E E E N

[328]
AR Arkansans? 1992 61% never "Some
Appendix to opinion of REHNQUIST, C. J. Opinion on appropriate people say
the Death 17% is that there
evidence at trial, where their sponsors can be examined Penalty, appropriate is nothing
and cross-examined about these matters. Opinion 5% wrong with
Research opposed to executing a
*** Associates, all person who
Inc., Q. 13 executions is mentally
There are strong reasons for limiting our inquiry into what (July 1992) 17% retarded.
constitutes an evolving standard of decency under the John undecided Others say
Eighth Amendment to the laws passed by legislatures DiPippa, that the
and the practices of sentencing juries in America. Here, Will death
the Court goes beyond these well-established objective Fairchild s penalty
indicators of contemporary values. It finds "further Death should

298
 Violate the never be mentally
Constitution imposed on retarded"
, or Simply a person
Our who is
Morality?, mentally CA Field 1989 64.8% not "Some
Arkansas retarded. Research all right people feel
Forum, Which of Corp., 25.7% is all there is
Sept. 1993 these California right 9.5% nothing
positions Death no opinion wrong with
comes Penalty imposing the
closest to Survey, Q. death
your own" 22 (Dec. penalty on
1989) persons who
Frank Hill, are mentally
[329] Death retarded
Penalty For depending
Appendix to opinion of Rehnquist, C. J. The on the
Retarded, circum-
San Diego stances.
STAT POLL DAT RESPONS QUESTION Union- Others feel
E E E Tribune, the death
Mar. 28, penalty
1993, at G3 should never
AZ Behavior 2000 71% "For persons be imposed
Research oppose convicted of on persons
Center, 12% favor murder, do who are
Survey 11% you favor or mentally
2000, Q. 3 depends oppose use retarded
(July 2000) 6% of the death under any
ref/unsure penalty circumstanc
when the e. The death
defendant is penalty on a
mentally

299
 retarded [330]
person is . . .
" Appendix to opinion of REHNQUIST, C. J.

CA Field 1997 74% "Mentally STAT POLL DAT RESPONS QUESTIO

Research disagree retarded E E E N
Corp., 17% agree defendants
California 9% no should be
Death opinion given the Polling 11% don't murder
Penalty death Institute, know who are
Survey, Q. penalty Death mentally
62D (Feb. when they Penalty retarded
1997) Paul commit Survey should or
Van capital Info., Q. 35 should not
Slambrouck crimes." (Apr. 23, receive the
, Execution 2001) death
and a penalty?"
Convict's
Mental
State, The FL Amnesty 1986 71% [not
Christian Internationa opposed provided]
Science l Martin
Monitor, Dyckman,
Apr. 27, Death
1998, at 1 Penalty's
High Price,
St.
CT Quinnipac 2001 77% no "Do you Petersburg
University 12% yes think that Times, Apr.
persons 19, 1992, at
convicted of 3D

300
 of capital
GA Georgia 1987 66% [not murder,
State opposed provided] should be
University 17% favor executed?"
Tracy 16%
Thompson, depends
Executions MD Survey 1988 82% "Would you
of Retarded Research opposed favor or
Opposed, Center, 8% favor oppose the
Atlanta University 10% other death
Journal, of Maryland penalty for
Jan. 6, (Nov. 1988) a person
1987, at 1B convicted
of murder if
he or she is
LA Marketing 1993 77.7% no "Would you mentally
Research 9.2% yes vote for the retarded?"
Inst., Loyola 13% death
Death uncertain penalty if
Penalty the [331]
Survey, Q. convicted
7 (Feb. person is Appendix to opinion of Rehnquist, C. J.
1993) mentally
retarded?"
STAT POLL DAT RESPONS QUESTION
E E E
LA Louisiana 2001 68% no "Do you
Poll, Poll 19% yes believe
104, Q. 9 11% no mentally
MO Missouri 1993 61.3% not "Some
(Apr. 2001) opinion 2% retarded
Mental all right people feel
won t say people,
Retardatio 23.7% is all there is
who are
n and nothing
convicted

301
Death right 15% wrong with retarded
Penalty don't know imposing person?"
Survey, Q. the death
5 (Oct. penalty on
1993) persons NC/SC Charlotte 2000 64% yes "Should the
who are Observer- 21% no Carolinas
mentally WMTV 14% not ban the
retarded News Poll sure execution of
depending (Sept. people with
on the 2000) mental
circum- Diane retardation?
stances. Suchetka, "
Others feel Carolinas
that the Join
death Emotional
penalty Debate
should Over
never be Executing
imposed on Mentally
persons Retarded,
who are Charlotte
mentally Observer,
retarded Sept. 13,
under any 2000
circum-
stances. Do
you think it
NM Research 1990 57.1% 62% support
IS or IS
& Polling oppose the death
NOT all right
Inc., Use of 10.5% penalty.
to impose
the Death support Asked of
the death
Penalty 26.2% those that
penalty on a
Public depends support it,
mentally

302
 Opinion 6.1% don't "for which of Penalty: An defendant
Poll, Q. 2 know the following Executive guilty of
(Dec. do you Summary, murder
1990) support use Q. 27 (May beyond a
of the 1989) reasonable
Ronald doubt and
Tabak & J. now needs
[332] Mark Lane, to decide
The about
Appendix to opinion of REHNQUIST, C. J. Execution of sentencing.
Injustice: A You are the
Cost and last juror to
STAT POLL DAT RESPONS QUESTIO Lack-of- decide and
E E E N Benefit your
Analysis of decision
the Death will
Penalty, 23 determine
death Loyola (LA) whether or
penalty . . .
L. Rev. 59, not the
when the
93 (1989) offender
convicted
will receive
person is the death
mentally penalty.
retarded?"
Would you
favor or
oppose
NY Patrick 1989 82% "I'd like you sentencing
Caddell oppose to imagine the
Enterprises, 10% favor you are a offender to
NY Public 9% don't member of the death
Opinion know a jury. The penalty if . .
Poll, The jury has . the
Death found the convicted

303
 person else. Which
were is closer to
mentally
retarded?"
[333]

OK Survey of 1999 83.5% "Some

Oklahoma should not people STATE POLL DATE RESPONSE QUESTION
Attitudes be executed think that
Regarding 10.8% persons
Capital should be convicted the way
Punishment executed of murder you feel,
: Survey 5.7% who are that
Conducted depends mentally 'retarded'
for retarded persons
Oklahoma (or have a should not
Indigent mental age be
Defense of between executed,
System, Q. 5 and 10 or that
C (July years) 'retarded'
1999) should not persons
be should be
executed. subject to
Other the death
people penalty like
think that everyone
'retarded' else?"
persons
should be
subject to
TX Austin 1988 73% [not
the death
American opposed provided]
penalty like
Statesman,
anyone

304
 Nov. 15,
1988, at B3 TX Scripps- 2001 66% no "Should the
Howard 17% yes state use
Texas Poll: 17% don't the death
TX Sam 1995 61% more "For each Death know/no penalty
Houston likely to of the Penalty answer when the
State oppose following (Mar. 2001) inmate is
University, items that Dan Parker, considered
College of have been Most mentally
Criminal found to Texans retarded?"
Justice, affect Support
Texas people's Death
Crime Poll attitude Penalty,
On-line about the Corpus
(1995) death Christi
Domingo penalty, Caller-
Ramirez, please Times, Mar.
Jr., Murder state if you 2, 2001, at
Trial May would be A1
Hinge on more likely
Defendant's to favor or
IQ, The more likely [334]
Fort Worth to oppose
Star- the death Appendix to opinion of REHNQUIST, C. J.
Telegram, penalty, or
Oct. 6, wouldn't it
1997, at 1 matter . . . if STAT POLL DAT RESPONS QUESTIO
the E E E N
murderer is
severely
mentally TX Houston 2001 59.9% no "Would you
retarded?" Chronicle support support the

305
 (Feb. 2001) 19.3% death Court to sure/ of less than
Stephen support penalty if Hear Case refused 18 (or the
Brewer & 20.7% not you were on 'retarded')
Mike sure/ no convinced Retarded should not
Tolson, A answer the Slayer, The be
Deadly defendant Washington executed.
Distinction: were guilty, Post, Jan. Other
Part III, but the 11, 1989, at people
Debate defendant A6 think that
Fervent in is mentally 'retarded'
Mental impaired?" persons
Cases, should be
Johnny subject to
Paul Penry the death
Illustrates a penalty like
Lingering anyone
Capital else. Which
Conundrum is closer to
, The the way
Houston you feel,
Chronicle, that
Feb. 6, 'retarded'
2001, at A6 persons
should not
be
US Harris Poll, 1988 71% should "Some executed,
Unfinished not be people or that
Agenda on executed think that 'retarded'
Race, Q. 32 21% should persons persons
(Sept. be executed convicted should be
1988) 4% of murder subject to
Saundra depends who have a the death
Torry, High 3% not mental age penalty like

306
 anyone Punishmen
else?" t and the
American
Future
[335] (Feb.
2001)
Appendix to opinion of Rehnquist, C. J.

US The 1993 56% not all "Some people

STAT POLL DAT RESPONS QUESTION Tarrance right 32% is feel that there
E E E Group, all right is nothing
Death 11% wrong with
Penalty unsure imposing the
US Yankelovic 1989 61% "Do you favor Poll, Q. 9 death penalty
h Clancy oppose or oppose the (Mar. on persons
Shulman, 27% favor death penalty 1993) who are
Time/CNN 12% not for mentally Samuel R. mentally
Poll, Q. 14 sure retarded Gross, retarded,
(July 7, individuals Update: depending on
1989) convicted of American the
Samuel R. serious Public circumstance
Gross, crimes, such Opinion on s. Others feel
Second as murder?" the Death that the death
Thoughts: Penalty-- penalty
Americans' It's Getting should never
Views on Personal, be imposed
the Death 83 Cornell on persons
Penalty at L. Rev. who are
the Turn of 1448, 1467 mentally
the (1998) retarded
Century, under any
Capital circumstance
s. Which of

307
 these views murderer is
comes severely
closest to mentally
your own?" retarded?"

US Public 1995 67% likely "For each US Princeton 1995 83% oppose "If the
Policy to oppose item please Research, 9% favor convicted
Research, 7% likely to tell me if you Newsweek 8% don't person was
Crime in favor 26% would be Poll, Q. 16 know ...
America, wouldn't more likely to (Nov. 1995) refused mentally
Q. 72 (July matter favor the Samuel R. retarded,
1995) death Gross, would you
penalty, more Update: favor or
likely to American oppose the
oppose the Public death
death Opinion on penalty?"
the Death
Penalty--
[336] It's Getting
Personal,
Appendix to opinion of REHNQUIST, C. J. 83 Cornell
L. Rev.
1448, 1468
STATE POLL DATE RESPONSE QUESTION (1998)

penalty or it US Peter Hart 1999 58% ". . . [F]or

wouldn't Research strongly/ each
matter . . . if Associates, somewhat proposal I
it is true Inc., favor 26% read,
that the Innocence strongly/ please tell

308
 Survey, Q. somewhat me whether determine
12 (Dec. oppose 12% you the
1999) mixed/ strongly sentence. If
neutral 4% favor, you knew
not sure somewhat that the
favor, have
mixed or
neutral [337]
feelings,
somewhat
oppose, or STA PO DATE RESPON QUESTI
strongly TE LL SE ON
oppose that
proposal . .
. . [P]rohibit
25% defenda
the death
somewh nt was
penalty for
at less mentall
defendants
likely y
who are
retarde
mentally
d or
retarded."
otherwi
se
mentall
US Peter Hart 1999 72% much/ Suppose y
Research somewhat you were impaire
Associates, less likely on a jury d in a
Inc., 19% no and a serious
Innocence difference defendant way,
Survey, Q. 9% not sure was would
9 (Dec. 47% much convicted of you be
1999) less likely murder. much
Now it is less
time to

309
 likely to Fervent but the
support in Mental defenda
the use Cases, nt is
of the Johnny mentall
death Paul y
penalty Penry impaire
in this Illustrate d?"
specific sa
case, Lingering
somew Capital
hat less Conundr
likely, or um, The
would it Houston
make Chronicle
no , Feb. 6,
differen 2001, at
ce to A6
you?"

JUSTICE SCALIA, with whom THE CHIEF JUSTICE and

US Houston 2001 63.8% "Would JUSTICE THOMAS join, dissenting.
Chronicle no you
(Feb. support support Today's decision is the pinnacle of our Eighth
2001) 16.4% the Amendment death-is-different jurisprudence. Not only
Stephen support death does it, like all of that jurisprudence, find no support in the
Brewer & 19.8% penalty text or history of the Eighth Amendment; it does not even
Mike not sure/ if you have support in current social attitudes regarding the
Tolson, A no were conditions that render
Deadly answer convinc
Distinctio ed the [338]
n: Part defenda
III, nt were
Debate guilty,

310
an otherwise just death penalty inappropriate. Seldom
has an opinion of this Court rested so obviously upon
nothing but the personal views of its Members.
I Commonwealth contested the evidence of retardation
I begin with a brief restatement of facts that are abridged
by the Court but important to understanding this case.
After spending the day drinking alcohol and smoking
marijuana, petitioner Daryl Renard Atkins and a partner in
crime drove to a convenience store, intending to rob a
customer. Their victim was Eric Nesbitt, an airman from
Langley Air Force Base, whom they abducted, drove to a
nearby automated teller machine, and forced to withdraw
$200. They then drove him to a deserted area, ignoring
his pleas to leave him unharmed. According to the co-
conspirator, whose testimony the jury evidently credited,
Atkins ordered Nesbitt out of the vehicle and, after he had
taken only a few steps, shot him one, two, three, four,
five, six, seven, eight times in the thorax, chest,
abdomen, arms, and legs.
The jury convicted Atkins of capital murder. At
resentencing (the Virginia Supreme Court affirmed his
conviction but remanded for resentencing because the
trial court had used an improper verdict form, 257 Va.
160, 179,510 S. E. 2d 445, 457 (1999)), the jury heard
extensive evidence of petitioner's alleged mental
retardation. A psychologist testified that petitioner was
mildly mentally retarded with an IQ of 59, that he was a
"slow learner," App. 444, who showed a "lack of success
in pretty much every domain of his life," id., at 442, and
that he had an "impaired" capacity to appreciate the
criminality of his conduct and to conform his conduct to
the law, id., at 453. Petitioner's family members offered
additional evidence in support of his mental retardation
claim (e. g., that petitioner is a "follower," id., at 421). The
and presented testimony of a psychologist who found
"absolutely no evidence other than the IQ score . . .
indicating that [peti-
[339]
tioner] was in the least bit mentally retarded" and
concluded that petitioner was "of average intelligence, at
least." Id., at 476.
The jury also heard testimony about petitioner's 16 prior
felony convictions for robbery, attempted robbery,
abduction, use of a firearm, and maiming. Id., at 491-522.
The victims of these offenses provided graphic depictions
of petitioner's violent tendencies: He hit one over the
head with a beer bottle, id., at 406; he slapped a gun
across another victim's face, clubbed her in the head with
it, knocked her to the ground, and then helped her up,
only to shoot her in the stomach, id., at 411-413. The jury
sentenced petitioner to death. The Supreme Court of
Virginia affirmed petitioner's sentence. 260 Va. 375, 534
S. E. 2d 312 (2000).
II
As the foregoing history demonstrates, petitioner's mental
retardation was a central issue at sentencing. The jury
concluded, however, that his alleged retardation was not
311
a compelling reason to exempt him from the death
penalty in light of the brutality of his crime and his long
demonstrated propensity for violence. "In upsetting this
particularized judgment on the basis of a constitutional
absolute," the Court concludes that no one who is even
slightly mentally retarded can have sufficient "moral
responsibility to be subjected to capital punishment for
any crime. As a sociological and moral conclusion that is
implausible; and it is doubly implausible as an
interpretation of the United States
Constitution." Thompson v. Oklahoma, 487 U. S. 815,
863-864 (1988) (SCALIA, J., dissenting).
Under our Eighth Amendment jurisprudence, a
punishment is "cruel and unusual" if it falls within one of
two categories: "those modes or acts of punishment that
had been considered cruel and unusual at the time that
the Bill of Rights was adopted," Ford v. Wainwright, 477
U. S. 399, 405 (1986), and modes of punishment that are
inconsistent with
[340]
modern "'standards of decency,'" as evinced by objective
indicia, the most important of which is "legislation
enacted by the country's legislatures," Penry v.
Lynaugh, 492 U. S. 302, 330-331 (1989).
The Court makes no pretense that execution of the mildly
mentally retarded would have been considered "cruel and
unusual" in 1791. Only
the severely or profoundly mentally retarded, commonly
known as "idiots," enjoyed any special status under the
law at that time. They, like lunatics, suffered a "deficiency
in will" rendering them unable to tell right from wrong. 4
W. Blackstone, Commentaries on the Laws of England
24 (1769) (hereinafter Blackstone); see also Penry, 492
U. S., at 331-332 ("[T]he term 'idiot' was generally used
to describe persons who had a total lack of reason or
understanding, or an inability to distinguish between good
and evil"); id., at 333 (citing sources indicating that idiots
generally had an IQ of 25 or below, which would place
them within the "profound" or "severe" range of mental
retardation under modern standards); 2 A. Fitz-
Herbert, Natura Brevium 233B (9th ed. 1794) (originally
published 1534) (An idiot is "such a person who cannot
account or number twenty pence, nor can tell who was
his father or mother, nor how old he is, etc., so as it may
appear that he hath no understanding of reason what
shall be for his profit, or what for his loss"). Due to their
incompetence, idiots were "excuse[d] from the guilt, and
of course from the punishment, of any criminal action
committed under such deprivation of the senses." 4
Blackstone 25; see also Penry, supra, at 331. Instead,
they were often committed to civil confinement or made
wards of the State, thereby preventing them from "go[ing]
loose, to the terror of the king's subjects." 4 Blackstone
25; see also S. Brakel, J. Parry, & B. Weiner, The
Mentally Disabled and the Law 12-14 (3d ed. 1985); 1
Blackstone 292-296; 1 M. Hale, Pleas of the Crown 33
(1st Am. ed. 1847). Mentally retarded offenders with less
severe impairments--those who were not "idiots"--
suffered criminal prosecution
[341]
312
and punishment, including capital punishment. See, e. g.,
I. Ray, Medical Jurisprudence of Insanity 65, 87-92 (W.
Overholser ed. 1962) (recounting the 1834 trial and
execution in Concord, New Hampshire, of an apparent
"imbecile"--imbecility being a less severe form of
retardation which "differs from idiocy in the circumstance
that while in [the idiot] there is an utter destitution of every
thing like reason, [imbeciles] possess some intellectual
capacity, though infinitely less than is possessed by the
great mass of mankind"); A. Highmore, Law of Idiocy and
Lunacy 200 (1807) ("The great difficulty in all these
cases, is to determine where a person shall be said to be
so far deprived of his sense and memory as not to have
any of his actions imputed to him: or where
notwithstanding some defects of this kind he still appears
to have so much reason and understanding as will make
him accountable for his actions . . . ").
The Court is left to argue, therefore, that execution of the
mildly retarded is inconsistent with the "evolving
standards of decency that mark the progress of a
maturing society." Trop v. Dulles, 356 U. S. 86, 101
(1958) (plurality opinion) (Warren, C. J.). Before today,
our opinions consistently emphasized that Eighth
Amendment judgments regarding the existence of social
"standards" "should be informed by objective factors to
the maximum possible extent" and "should not be, or
appear to be, merely the subjective views of individual
Justices." Coker v. Georgia, 433 U. S. 584, 592 (1977)
(plurality opinion); see also Stanford v. Kentucky, 492 U.
S. 361, 369 (1989); McCleskey v. Kemp, 481 U. S. 279,
300 (1987); Enmund v. Florida, 458 U. S. 782, 788
(1982). "First" among these objective factors are the
"statutes passed by society's elected
representatives," Stanford, supra, at 370; because it "will
rarely if ever be the case that the Members of this Court
will have a better sense of the evolution in views of the
American people than do their elected
representatives," Thompson, supra, at 865 (SCALIA, J.,
dissenting).
[342]
The Court pays lipservice to these precedents as it
miraculously extracts a "national consensus" forbidding
execution of the mentally retarded, ante, at 316, from the
fact that 18 States--less than half (47%) of the 38 States
that permit capital punishment (for whom the issue
exists)--have very recently enacted legislation barring
execution of the mentally retarded. Even that 47% figure
is a distorted one. If one is to say, as the Court does
today, that all executions of the mentally retarded are so
morally repugnant as to violate our national "standards of
decency," surely the "consensus" it points to must be one
that has set its righteous face against all such executions.
Not 18 States, but only 7--18% of death penalty
jurisdictions--have legislation of that scope. Eleven of
those that the Court counts enacted statutes prohibiting
execution of mentally retarded defendants convicted
after, or convicted of crimes committed after, the effective
date of the legislation;[Footnote 1] those already on death
row, or consigned there before the statute's effective
date, or even (in those States using the date of the crime
as the criterion of retroactivity) tried in the future for
murders committed many years ago, could be put to
death. That is not a statement of absolute moral
313
repugnance, but one of current preference between two
tolerable approaches. Two of these States permit
execution of the mentally retarded in other situations as
well: Kansas apparently permits execution of all
[343]
except the severely mentally retarded;[Footnote 2] New
York permits execution of the mentally retarded who
commit murder in a correctional facility. N. Y. Crim. Proc.
Law 400.27. 12(d) (McKinney 2001); N. Y. Penal Law
125.27 (McKinney 2002).
But let us accept, for the sake of argument, the Court's
faulty count. That bare number of States alone--18--
should be enough to convince any reasonable person
that no "national consensus" exists. How is it possible
that agreement among 47% of the death penalty
jurisdictions amounts to "consensus"? Our prior cases
have generally required a much higher degree of
agreement before finding a punishment cruel and
unusual on "evolving standards" grounds. In Coker,
supra, at 595-596, we proscribed the death penalty for
rape of an adult woman after finding that only one
jurisdiction, Georgia, authorized such a punishment.
In Enmund, supra, at 789, we invalidated the death
penalty for mere participation in a robbery in which an
accomplice took a life, a punishment not permitted in 28
of the death penalty States (78%). In Ford, 477 U. S., at
408, we supported the common-law prohibition of
execution of the insane with the observation that "[t]his
ancestral legacy has not outlived its time," since not a
single State authorizes such punishment. In Solem v.
Helm, 463 U. S. 277,300 (1983), we invalidated a life
sentence without parole under a recidivist statute by
which the criminal "was treated more severely than he
would have been in any other State." What the Court
calls evidence of "consensus" in the present case (a
fudged 47%) more closely resembles evidence that we
found inadequate
[344]
to establish consensus in earlier cases. Tison v.
Arizona, 481 U. S. 137, 154, 158 (1987), upheld a state
law authorizing capital punishment for major participation
in a felony with reckless indifference to life where only 11
of the 37 death penalty States (30%) prohibited such
punishment. Stanford, 492 U. S., at 372, upheld a state
law permitting execution of defendants who committed a
capital crime at age 16 where only 15 of the 36 death
penalty States (42%) prohibited death for such offenders.
Moreover, a major factor that the Court entirely
disregards is that the legislation of all 18 States it relies
on is still in its infancy. The oldest of the statutes is only
14 years old;[Footnote 3] five were enacted last
year;[Footnote 4] over half were enacted within the past
eight years.[Footnote 5] Few, if any, of the States have
had sufficient experience with these laws to know
whether they are sensible in the long term. It is "myopic
to base sweeping constitutional principles upon the
narrow experience of [a few] years." Coker, 433 U. S., at
614 (Burger, C. J., dissenting); see also Thompson, 487
U. S., at 854-855 (O'CONNOR, J., concurring in
judgment).
314
The Court attempts to bolster its embarrassingly feeble
evidence of "consensus" with the following: "It is not so
much the number of these States that is significant, but
the consistency of the direction of change." Ante, at 315
(emphasis added). But in what other direction could we
possibly see change? Given that 14 years ago all the
death penalty statutes included the mentally
retarded, any change (except precipitate undoing of what
had just been done) was bound
[345]
to be in the one direction the Court finds significant
enough to overcome the lack of real consensus. That is
to say, to be accurate the Court's "consistency-of-the-
direction-of-change" point should be recast into the
following unimpressive observation: "No State has yet
undone its exemption of the mentally retarded, one for as
long as 14 whole years." In any event, reliance upon
"trends," even those of much longer duration than a mere
14 years, is a perilous basis for constitutional
adjudication, as JUSTICE O'CONNOR eloquently
explained in Thompson:
"In 1846, Michigan became the first State to abolish the
death penalty . . . . In succeeding decades, other
American States continued the trend towards abolition . .
. . Later, and particularly after World War II, there ensued
a steady and dramatic decline in executions . . . . In the
1950's and 1960's, more States abolished or radically
restricted capital punishment, and executions ceased
completely for several years beginning in 1968 . . . .
"In 1972, when this Court heard arguments on the
constitutionality of the death penalty, such statistics might
have suggested that the practice had become a relic,
implicitly rejected by a new societal consensus . . . . We
now know that any inference of a societal consensus
rejecting the death penalty would have been mistaken.
But had this Court then declared the existence of such a
consensus, and outlawed capital punishment, legislatures
would very likely not have been able to revive it. The
mistaken premise of the decision would have been frozen
into constitutional law, making it difficult to refute and
even more difficult to reject." 487 U. S., at 854-855.
Her words demonstrate, of course, not merely the peril of
riding a trend, but also the peril of discerning a
consensus where there is none.
[346]
The Court's thrashing about for evidence of "consensus"
includes reliance upon the margins by which state
legislatures have enacted bans on execution of the
retarded. Ante, at 316. Presumably, in applying our
Eighth Amendment "evolving-standards-of-decency"
jurisprudence, we will henceforth weigh not only how
many States have agreed, but how many States have
agreed by how much. Of course if the percentage of
legislators voting for the bill is significant, surely the
number of people represented by the legislators voting
for the bill is also significant: the fact that 49% of the
legislators in a State with a population of 60 million
voted against the bill should be more impressive than the
fact that 90% of the legislators in a State with a
315
population of 2 million voted for it. (By the way, the
population of the death penalty States that exclude the
mentally retarded is only 44% of the population of all
death penalty States. U. S. Dept. of Commerce, Bureau
of Census, Statistical Abstract of the United States 21
(121st ed. 2001).) This is quite absurd. What we have
looked for in the past to "evolve" the Eighth Amendment
is a consensus of the same sort as the consensus
that adopted the Eighth Amendment: a consensus of the
sovereign States that form the Union, not a nose count of
Americans for and against.
Even less compelling (if possible) is the Court's
argument, ante, at 316, that evidence of "national
consensus" is to be found in the infrequency with which
retarded persons are executed in States that do not bar
their execution. To begin with, what the Court takes as
true is in fact quite doubtful. It is not at all clear that
execution of the mentally retarded is "uncommon," ibid.,
as even the sources cited by the Court suggest, see ante,
at 316, n. 20 (citing D. Keyes, W. Edwards, & R. Perske,
People with Mental Retardation are Dying Legally, 35
Mental Retardation (Feb. 1997) (updated by Death
Penalty Information Center, available at
http://www.advocacyone.org/deathpenalty.html (as visited
[347]
June 12,2002) (showing that 12 States executed 35
allegedly mentally retarded offenders during the period
1984-2000)). See also Bonner & Rimer, Executing the
Mentally Retarded Even as Laws Begin to Shift, N. Y.
Times, Aug. 7, 2000, p. Ai (reporting that 10% of death
row inmates are retarded). If, however, execution of the
mentally retarded is "uncommon"; and if it is not a
sufficient explanation of this that the retarded constitute a
tiny fraction of society (1% to 3%), Brief for American
Psychological Association et al. as Amici Curiae 7; then
surely the explanation is that mental retardation is a
constitutionally mandated mitigating factor at
sentencing, Penry, 492 U. S., at 328. For that reason,
even if there were uniform national sentiment in favor of
executing the retarded in appropriate cases, one would
still expect execution of the mentally retarded to be
"uncommon." To adapt to the present case what the
Court itself said in Stanford, 492 U. S., at 374: "[I]t is not
only possible, but overwhelmingly probable, that the very
considerations which induce [today's majority] to believe
that death should never be imposed on [mentally
retarded] offenders . . . cause prosecutors and juries to
believe that it should rarely be imposed."
But the Prize for the Court's Most Feeble Effort to
fabricate "national consensus" must go to its appeal
(deservedly relegated to a footnote) to the views of
assorted professional and religious organizations,
members of the so-called "world community," and
respondents to opinion polls. Ante, at 316-317, n. 21. I
agree with THE CHIEF JUSTICE, ante, at 325-328
(dissenting opinion), that the views of professional and
religious organizations and the results of opinion polls are
irrelevant.[Footnote 6] Equally irrelevant are the practices
of the
[348]
316
"world community," whose notions of justice are
(thankfully) not always those of our people. "We must
never forget that it is a Constitution for the United States
of America that we are expounding . . . . [W]here there is
not first a settled consensus among our own people, the
views of other nations, however enlightened the Justices
of this Court may think them to be, cannot be imposed
upon Americans through the Constitution." Thompson,
487 U. S., at 868-869, n. 4 (SCALIA, J., dissenting).
III
Beyond the empty talk of a "national consensus," the
Court gives us a brief glimpse of what really underlies
today's decision: pretension to a power
confined neither by the moral sentiments originally
enshrined in the Eighth Amendment (its original
meaning) nor even by the current moral sentiments of the
American people. "'[T]he Constitution,'" the Court says,
"contemplates that in the end our own judgment will be
brought to bear on the question of the acceptability of the
death penalty under the Eighth Amendment.'" Ante, at
312 (quoting Coker, 433 U. S., at 597) (emphasis added).
(The unexpressed reason for this unexpressed
"contemplation" of the Constitution is presumably that
really good lawyers have moral sentiments superior to
those of the common herd, whether in 1791 or today.)
The arrogance of this assumption of power takes one's
breath away. And it explains, of course, why the Court
can be so cavalier about the evidence of consensus. It is
just a game, after all. "'[I]n the end,'" Thompson, supra, at
823, n. 8 (plurality opinion (quoting Coker, supra, at 597
(plurality opinion))), it is the feelings and intuition of a
majority of the Justices that count-"the perceptions of
decency, or of penology, or of mercy, entertained . . . by
a majority of the small and
[349]
unrepresentative segment of our society that sits on this
Court." Thompson, supra, at 873 (SCALIA, J.,
dissenting).
The genuinely operative portion of the opinion, then, is
the Court's statement of the reasons why it agrees with
the contrived consensus it has found, that the
"diminished capacities" of the mentally retarded render
the death penalty excessive. Ante, at 317-321. The
Court's analysis rests on two fundamental assumptions:
(1) that the Eighth Amendment prohibits excessive
punishments, and (2) that sentencing juries or judges are
unable to account properly for the "diminished capacities"
of the retarded. The first assumption is wrong, as I
explained at length in Harmelin v. Michigan, 501 U. S.
957, 966-990 (1991) (opinion of SCALIA, J.). The Eighth
Amendment is addressed to always-andeverywhere
"cruel" punishments, such as the rack and the
thumbscrew. But where the punishment is in itself
permissible, "[t]he Eighth Amendment is not a ratchet,
whereby a temporary consensus on leniency for a
particular crime fixes a permanent constitutional
maximum, disabling the States from giving effect to
altered beliefs and responding to changed social
conditions." Id., at 990. The second assumption--inability
of judges or juries to take proper account of mental
retardation--is not only unsubstantiated, but contradicts
317
the immemorial belief, here and in England, that they play
an indispensable role in such matters:
"[I]t is very difficult to define the indivisible line that
divides perfect and partial insanity; but it must rest upon
circumstances duly to be weighed and considered both
by the judge and jury, lest on the one side there be a kind
of inhumanity towards the defects of human nature, or on
the other side too great an indulgence given to great
crimes . . . . " 1 Hale, Pleas of the Crown, at 30.
Proceeding from these faulty assumptions, the Court
gives two reasons why the death penalty is an excessive
punishment for all mentally retarded offenders. First, the
"dimin-
[350]
ished capacities" of the mentally retarded raise a "serious
question" whether their execution contributes to the
"social purposes" of the death penalty, viz., retribution
and deterrence. Ante, at 318-319. (The Court
conveniently ignores a third "social purpose" of the death
penalty--"incapacitation of dangerous criminals and the
consequent prevention of crimes that they may otherwise
commit in the future," Gregg v. Georgia, 428 U. S. 153,
183, n. 28 (1976) (joint opinion of Stewart, Powell, and
STEVENS, JJ.). But never mind; its discussion of even
the other two does not bear analysis.) Retribution is not
advanced, the argument goes, because the mentally
retarded are no more culpable than the average
murderer, whom we have already held lacks sufficient
culpability to warrant the death penalty, see Godfrey v.
Georgia, 446 U. S. 420, 433 (1980) (plurality
opinion). Ante, at 319. Who says so? Is there an
established correlation between mental acuity and the
ability to conform one's conduct to the law in such a
rudimentary matter as murder? Are the mentally retarded
really more disposed (and hence more likely) to commit
willfully cruel and serious crime than others? In my
experience, the opposite is true: being childlike generally
suggests innocence rather than brutality.
Assuming, however, that there is a direct connection
between diminished intelligence and the inability to
refrain from murder, what scientific analysis can possibly
show that a mildly retarded individual who commits an
exquisite torture-killing is "no more culpable" than the
"average" murderer in a holdup-gone-wrong or a
domestic dispute? Or a moderately retarded individual
who commits a series of 20 exquisite torture-killings?
Surely culpability, and deservedness of the most severe
retribution, depends not merely (if at all) upon the mental
capacity of the criminal (above the level where he is able
to distinguish right from wrong) but also upon the
depravity of the crime--which is precisely why this sort of
question has traditionally been thought answerable not by
a categorical rule of the sort the Court today
[351]
imposes upon all trials, but rather by the sentencer's
weighing of the circumstances (both degree of retardation
and depravity of crime) in the particular case. The fact
that juries continue to sentence mentally retarded
offenders to death for extreme crimes shows that
318
society's moral outrage sometimes demands execution of
retarded offenders. By what principle of law, science, or
logic can the Court pronounce that this is wrong? There
is none. Once the Court admits (as it does) that mental
retardation does not render the offender
morally blameless, ante, at 318, there is no basis for
saying that the death penalty is neverappropriate
retribution, no matter how heinous the crime. As long as
a mentally retarded offender knows "the difference
between right and wrong," ibid., only the sentencer can
assess whether his retardation reduces his culpability
enough to exempt him from the death penalty for the
particular murder in question.
As for the other social purpose of the death penalty that
the Court discusses, deterrence: That is not advanced,
the Court tells us, because the mentally retarded are
"less likely" than their nonretarded counterparts to
"process the information of the possibility of execution as
a penalty and . . . control their conduct based upon that
information." Ante, at 320. Of course this leads to the
same conclusion discussed earlier--that the mentally
retarded (because they are less deterred) are more likely
to kill--which neither I nor the society at large believes. In
any event, even the Court does not say that all mentally
retarded individuals cannot "process the information of
the possibility of execution as a penalty and . . . control
their conduct based upon that information"; it merely
asserts that they are "less likely" to be able to do so. But
surely the deterrent effect of a penalty is adequately
vindicated if it successfully deters many, but not all, of the
target class. Virginia's death penalty, for example, does
not fail of its deterrent effect simply
because somecriminals are unaware that Virginia has the
death penalty. In other words, the supposed fact
that some
[352]
retarded criminals cannot fully appreciate the death
penalty has nothing to do with the deterrence rationale,
but is simply an echo of the arguments denying a
retribution rationale, discussed and rejected above. I am
not sure that a murderer is somehow less blameworthy if
(though he knew his act was wrong) he did not fully
appreciate that he could die for it; but if so, we should
treat a mentally retarded murderer the way we treat an
offender who may be "less likely" to respond to the death
penalty because he was abused as a child. We do not
hold him immune from capital punishment, but require his
background to be considered by the sentencer as a
mitigating factor. Eddings v. Oklahoma, 455 U. S. 104,
113-117 (1982).
The Court throws one last factor into its grab bag of
reasons why execution of the retarded is "excessive" in
all cases:
Mentally retarded offenders "face a special risk of
wrongful execution" because they are less able "to make
a persuasive showing of mitigation," "to give meaningful
assistance to their counsel," and to be effective
witnesses. Ante, at 320-321. "Special risk" is pretty flabby
language (even flabbier than "less likely")--and I suppose
a similar "special risk" could be said to exist for just plain
stupid people, inarticulate people, even ugly people. If
319
this unsupported claim has any substance to it (which I
doubt), it might support a due process claim in all criminal
prosecutions of the mentally retarded; but it is hard to see
how it has anything to do with an Eighth
Amendment claim that execution of the mentally retarded
is cruel and unusual. We have never before held it to be
cruel and unusual punishment to impose a sentence in
violation of some otherconstitutional imperative.
***
Today's opinion adds one more to the long list of
substantive and procedural requirements impeding
imposition of the death penalty imposed under this
Court's assumed power to invent a death-is-different
jurisprudence. None of those
[353]
requirements existed when the Eighth Amendment was
adopted, and some of them were not even supported by
current moral consensus. They include prohibition of the
death penalty for "ordinary" murder, Godfrey, 446 U. S.,
at 433, for rape of an adult woman, Coker, 433 U. S., at
592, and for felony murder absent a showing that the
defendant possessed a sufficiently culpable state of
mind, Enmund, 458 U. S., at 801; prohibition of the death
penalty for any person under the age of 16 at the time of
the crime, Thompson, 487 U. S., at 838 (plurality
opinion); prohibition of the death penalty as the
mandatory punishment for any crime, Woodson v. North
Carolina, 428 U. S. 280, 305 (1976) (plurality
opinion), Sumner v. Shuman, 483 U. S. 66, 77-78 (1987);
a requirement that the sentencer not be given unguided
discretion, Furman v. Georgia, 408 U. S. 238(1972) (per
curiam), a requirement that the sentencer be empowered
to take into account all mitigating circumstances, Lockett
v. Ohio, 438 U. S. 586, 604 (1978) (plurality
opinion), Eddings v. Oklahoma, supra, at 110; and a
requirement that the accused receive a judicial evaluation
of his claim of insanity before the sentence can be
executed, Ford, 477 U. S., at 410-411 (plurality opinion).
There is something to be said for popular abolition of the
death penalty; there is nothing to be said for its
incremental abolition by this Court.
This newest invention promises to be more effective than
any of the others in turning the process of capital trial into
a game. One need only read the definitions of mental
retardation adopted by the American Association on
Mental Retardation and the American Psychiatric
Association (set forth in the Court's opinion, ante, at 308,
n. 3) to realize that the symptoms of this condition can
readily be feigned. And whereas the capital defendant
who feigns insanity risks commitment to a mental
institution until he can be cured (and then tried and
executed), Jones v. United States, 463 U. S. 354, 370,
and n. 20 (1983), the capital defendant who feigns mental
retardation risks nothing at all. The mere pendency
[354]
of the present case has brought us petitions by death row
inmates claiming for the first time, after multiple habeas
petitions, that they are retarded. See, e. g., Moore v.
320
Texas, 535 U. S. 1044 (2002) (SCALIA, J., dissenting
from grant of applications for stay of execution).
Perhaps these practical difficulties will not be
experienced by the minority of capital-punishment States
that have very recently changed mental retardation from
a mitigating factor (to be accepted or rejected by the
sentencer) to an absolute immunity. Time will tell--and
the brief time those States have had the new disposition
in place (an average of 6.8 years) is surely not enough.
But if the practical difficulties do not appear, and if the
other States share the Court's perceived moral
consensus that all mental retardation renders the death
penalty inappropriate for all crimes, then that majority will
presumably follow suit. But there is no justification for this
Court's pushing them into the experiment--and turning
the experiment into a permanent practice--on
constitutional pretext. Nothing has changed the accuracy
of Matthew Hale's endorsement of the common law's
traditional method for taking account of guilt-reducing
factors, written over three centuries ago:
"[Determination of a person's incapacity] is a matter of
great difficulty, partly from the easiness of counterfeiting
this disability . . . and partly from the variety of the
degrees of this infirmity, whereof some are sufficient, and
some are insufficient to excuse persons in capital
offenses . . . .
"Yet the law of England hath afforded the best method of
trial, that is possible, of this and all other matters of fact,
namely, by a jury of twelve men all concurring in the
same judgment, by the testimony of witnesses . . . , and
by the inspection and direction of the judge." 1 Pleas of
the Crown, at 32-33.
I respectfully dissent.
Footnotes
[Footnote 1]
Initially, both Jones and Atkins were indicted for capital
murder. The prosecution ultimately permitted Jones to
plead guilty to first-degree murder in exchange for his
testimony against Atkins. As a result of the plea, Jones
became ineligible to receive the death penalty.
[Footnote 2]
Highly damaging to the credibility of Atkins' testimony
was its substantial inconsistency with the statement he
gave to the police upon his arrest. Jones, in contrast, had
declined to make an initial statement to the authorities.
[Footnote 3]
The American Association on Mental Retardation
(AAMR) defines mental retardation as follows: "Mental
retardation refers to substantial limitations in present
functioning. It is characterized by significantly subaverage
intellectual functioning, existing concurrently with related
limitations in two or more of the following applicable
adaptive skill areas: communication, self-care, home
living, social skills, community use, selfdirection, health
and safety, functional academics, leisure, and work.
321
Mental retardation manifests before age 18." Mental
Retardation: Definition, Classification, and Systems of
Supports 5 (9th ed. 1992).
The American Psychiatric Association's definition is
similar: "The essential feature of Mental Retardation is
significantly subaverage general intellectual functioning
(Criterion A) that is accompanied by significant limitations
in adaptive functioning in at least two of the following skill
areas: communication, self-care, home living,
social/interpersonal skills, use of community resources,
self-direction, functional academic skills, work, leisure,
health, and safety (Criterion B). The onset must occur
before age 18 years (Criterion C).Mental Retardation has
many different etiologies and may be seen as a final
common pathway of various pathological processes that
affect the functioning of the central nervous system."
Diagnostic and Statistical Manual of Mental Disorders 41
(4th ed. 2000). "Mild" mental retardation is typically used
to describe people with an IQ level of 50-55 to
approximately 70. Id., at 42-43.
[Footnote 4]
The doctor interviewed Atkins, members of his family,
and deputies at the jail where he had been incarcerated
for the preceding 18 months. Dr. Nelson also reviewed
the statements that Atkins had given to the police and the
investigative reports concerning this case.
[Footnote 5]
Dr. Nelson administered the Wechsler Adult Intelligence
Scales test (WAIS-III), the standard instrument in the
United States for assessing intellectual functioning.
AAMR, Mental Retardation, supra. The WAIS-III is scored
by adding together the number of points earned on
different subtests, and using a mathematical formula to
convert this raw score into a scaled score. The test
measures an intelligence range from 45 to 155. The
mean score of the test is 100, which means that a person
receiving a score of 100 is considered to have an
average level of cognitive functioning. A. Kaufman & E.
Lichtenberger, Essentials of WAIS-III Assessment 60
(1999). It is estimated that between 1 and 3 percent of
the population has an IQ between 70 and 75 or lower,
which is typically considered the cutoff IQ score for the
intellectual function prong of the mental retardation
definition. 2 Kaplan & Sadock's Comprehensive Textbook
of Psychiatry 2952 (B. Sadock & V. Sadock eds. 7th ed.
2000).
At the sentencing phase, Dr. Nelson testified: "[Atkins']
full scale IQ is 59. Compared to the population at large,
that means less than one percentile . . . . Mental
retardation is a relatively rare thing. It's about one percent
of the population." App. 274. According to Dr. Nelson,
Atkins' IQ score "would automatically qualify for Social
Security disability income." Id., at 280. Dr. Nelson also
indicated that of the over 40 capital defendants that he
had evaluated, Atkins was only the second individual who
met the criteria for mental retardation. Id., at 310. He
testified that, in his opinion, Atkins' limited intellect had
been a consistent feature throughout his life, and that his
322
IQ score of 59 is not an "aberration, malingered result, or
invalid test score." Id., at 308.
[Footnote 6]
Dr. Samenow's testimony was based upon two interviews
with Atkins, a review of his school records, and interviews
with correctional staff. He did not administer an
intelligence test, but did ask Atkins questions taken from
the 1972 version of the Wechsler Memory Scale. Id., at
524-525, 529. Dr. Samenow attributed Atkins' "academic
performance [that was] by and large terrible" to the fact
that he "is a person who chose to pay attention
sometimes, not to pay attention others, and did poorly
because he did not want to do what he was required to
do." Id., at 480-481.
[Footnote 7]
Thus, we have read the text of the Amendment to prohibit
all excessive punishments, as well as cruel and unusual
punishments that mayor may not be excessive.
[Footnote 8]
Jerome Bowden, who was identified as having mental
retardation when he was 14 years old, was scheduled for
imminent execution in Georgia in June 1986. The
Georgia Board of Pardons and Paroles granted a stay
following public protests over his execution. A
psychologist selected by the State evaluated Bowden
and determined that he had an IQ of 65, which is
consistent with mental retardation. Nevertheless, the
board lifted the stay and Bowden was executed the
following day. The board concluded that Bowden
understood the nature of his crime and his punishment
and therefore that execution, despite his mental
deficiencies, was permissible. See Montgomery,
Bowden's Execution Stirs Protest, Atlanta Journal, Oct.
13, 1986, p. AI.
[Footnote 9]
Ga. Code Ann. 17-7-131(j) (Supp. 1988).
[Footnote 10]
The Anti-Drug Abuse Act of 1988, Pub. L. 100-
690, 7001(l), 102 Stat. 4390,21 U. S. C. 848(l). Congress
expanded the federal death penalty law in 1994. It again
included a provision that prohibited any individual with
mental retardation from being sentenced to death or
executed. Federal Death Penalty Act of 1994, 18 U. S. C.
3596(c).
[Footnote 11]
Md. Ann. Code, Art. 27, 412(f)(I) (1989).
[Footnote 12]
Ky. Rev. Stat. Ann. 532.130, 532.135, 532.140; Tenn.
Code Ann. 3913-203; N. M. Stat. Ann. 31-20A-2.1; Ark.
Code Ann. 5-4-618; Colo. Rev. Stat. 16-9-401; Wash.
Rev. Code 10.95.030; Ind. Code 35-36-9-2 through 35-
36-9-6; Kan. Stat. Ann. 21-4623.
323
[Footnote 13]
N. Y. Crim. Proc. Law 400.27. However, New York law
provides that a sentence of death "may not be set aside .
. . upon the ground that the defendant is mentally
retarded" if "the killing occurred while the defendant was
confined or under custody in a state correctional facility or
local correctional institution." N. Y. Crim. Proc. Law
400.27.12(d) (McKinney 2001-2002 Interim Pocket Part).
[Footnote 14]
Neb. Rev. Stat. 28-105.01.
[Footnote 15]
S. D. Codified Laws 23A-27A-26.1; Ariz. Rev. Stat. Ann.
13-703.02; Conn. Gen. Stat. 53a-46a; Fla. Stat. 921.137;
Mo. Rev. Stat. 565.030; 2001-346 N. C. Sess. Laws p.
45.
[Footnote 16]
House Bill No. 236 passed the Texas House on April 24,
2001, and the Senate version, S. 686, passed the Texas
Senate on May 16, 2001. Governor Perry vetoed the
legislation on June 17, 2001. In his veto statement, the
Texas Governor did not express dissatisfaction with the
principle of categorically excluding the mentally retarded
from the death penalty. In fact, he stated: "We do not
execute mentally retarded murderers today." See Veto
Proclamation for H. B. No. 236. Instead, his motivation to
veto the bill was based upon what he perceived as a
procedural flaw: "My opposition to this legislation focuses
on a serious legal flaw in the bill. House Bill No. 236
would create a system whereby the jury and judge are
asked to make the same determination based on two
different sets of facts . . . . Also of grave concern is the
fact that the provision that sets up this legally flawed
process never received a public hearing during the
legislative process." Ibid.
[Footnote 17]
Virginia Senate Bill No. 497 (2002); House Bill No. 957
(2002); see also Nevada Assembly Bill 353 (2001).
Furthermore, a commission on capital punishment in
Illinois has recently recommended that Illinois adopt a
statute prohibiting the execution of mentally retarded
offenders. Report of the Governor's Commission on
Capital Punishment 156 (Apr. 2002).
[Footnote 18]
A comparison to Stanford v. Kentucky, 492 U. S.
361 (1989), in which we held that there was no national
consensus prohibiting the execution of juvenile offenders
over age 15, is telling. Although we decided Stanford on
the same day as Penry, apparently only two state
legislatures have raised the threshold age for imposition
of the death penalty. Mont. Code Ann. 45-5-102 (1999);
Ind. Code 35-50-2-3 (1998).
[Footnote 19]
App. D to Brief for AAMR et al. as Amici Curiae.
324
[Footnote 20]
Those States are Alabama, Texas, Louisiana, South
Carolina, and Virginia. D. Keyes, W. Edwards, & R.
Perske, People with Mental Retardation are Dying
Legally, 35 Mental Retardation (Feb. 1997) (updated by
Death Penalty Information Center, available
at http://www.advocacyone.org/deathpenalty.html (as
visited June 18, 2002)).
[Footnote 21]
Additional evidence makes it clear that this legislative
judgment reflects a much broader social and professional
consensus. For example, several organizations with
germane expertise have adopted official positions
opposing the imposition of the death penalty upon a
mentally retarded offender. See Brief for American
Psychological Association et al. as Amici Curiae; Brief for
AAMR et al. as Amici Curiae. In addition, representatives
of widely diverse religious communities in the United
States, reflecting Christian, Jewish, Muslim, and Buddhist
traditions, have filed an amicus curiae brief explaining
that even though their views about the death penalty
differ, they all "share a conviction that the execution of
persons with mental retardation cannot be morally
justified." Brief for United States Catholic Conference et
al. as Amici Curiae 2. Moreover, within the world
community, the imposition of the death penalty for crimes
committed by mentally retarded offenders is
overwhelmingly disapproved. Brief for European Union
as Amicus Curiae 4. Finally, polling data shows a
widespread consensus among Americans, even those
who support the death penalty, that executing the
mentally retarded is wrong. Bonner & Rimer, Executing
the Mentally Retarded Even as Laws Begin to Shift, N. Y.
Times, Aug. 7,2000, p. AI; App. B to Brief for AAMR et al.
as Amici Curiae(appending approximately 20 state and
national polls on the issue). Although these factors are by
no means dispositive, their consistency with the
legislative evidence lends further support to our
conclusion that there is a consensus among those who
have addressed the issue. See Thompson v.
Oklahoma, 487 U. S. 815, 830, 831, n. 31 (1988)
(considering the views of "respected professional
organizations, by other nations that share our Anglo-
American heritage, and by the leading members of the
Western European community").
[Footnote 22]
The statutory definitions of mental retardation are not
identical, but generally conform to the clinical definitions
set forth in n. 3, supra.
[Footnote 23]
J. McGee & F. Menolascino, The Evaluation of
Defendants with Mental Retardation in the Criminal
Justice System, in The Criminal Justice System and
Mental Retardation 55, 58-60 (R. Conley, R. Luckasson,
& G. Bouthilet eds. 1992); Appelbaum & Appelbaum,
Criminal-Justice Related Competencies in Defendants
with Mental Retardation, 14 J. of Psychiatry & L. 483,
487-489 (Winter 1994).
325
[Footnote 24]
See, e. g., Ellis & Luckasson, Mentally Retarded Criminal
Defendants, 53 Geo. Wash. L. Rev. 414, 429 (1985);
Levy-Shiff, Kedem, & Sevillia, Ego Identity in Mentally
Retarded Adolescents, 94 Am. J. Mental Retardation
541, 547 (1990); Whitman, Self Regulation and Mental
Retardation, 94 Am. J. Mental Retardation 347, 360
(1990); Everington & Fulero, Competence to Confess:
Measuring Understanding and Suggestibility of
Defendants with Mental Retardation, 37 Mental
Retardation 212, 212-213, 535 (1999) (hereinafter
Everington & Fulero).
[Footnote 25]
studies in his favor ought to cut against him, for it is his
"heavy burden," Stanford v. Kentucky, 492 U. S. 361, 373
(1989) (internal quotation marks omitted), to establish a
national consensus against a punishment deemed
acceptable by the Virginia Legislature and jury who
sentenced him. Furthermore, it is worth noting that
experts have estimated that as many as 10 percent of
death row inmates are mentally retarded, see R. Bonner
& S. Rimer, Executing the Mentally Retarded Even as
Laws Begin to Shift, N. Y. Times, Aug. 7, 2000, p. AI, a
number which suggests that sentencing juries are not as
reluctant to impose the death penalty on defendants like
petitioner as was the case in Coker v. Georgia, 433 U. S.
584 (1977), and Enmund v. Florida, 458 U. S.
782 (1982).

See Everington & Fulero 212-213. Despite the heavy

burden that the prosecution must shoulder in capital
cases, we cannot ignore the fact that in recent years a
disturbing number of inmates on death row have been
exonerated. These exonerations have included at least
one mentally retarded person who unwittingly confessed
to a crime that he did not commit. See Baker, Death-Row
Inmate Gets Clemency; Agreement Ends Day of
Suspense, Washington Post, Jan. 15, 1994, p. A1.

[Footnote *]

Apparently no such statistics exist. See Brief for

American Association on Mental Retardation et al.
as Amici Curiae 19, n. 29 (noting that "actions by
individual prosecutors and by juries are difficult to
quantify with precision"). Petitioner's inability to muster

326
 petitioner Lito Corpuz (petitioner), seeking to reverse and set
aside the Decision1 dated March 22, 2007 and Resolution2
dated September 5, 2007 of the Court of Appeals (CA), which
affirmed with modification the Decision3 dated July 30, 2004
of the Regional Trial Court (RTC), Branch 46, San Fernando
City, finding the petitioner guilty beyond reasonable doubt of
the crime of Estafa under Article 315, paragraph (1), sub-
paragraph (b) of the Revised Penal Code.

The antecedent facts follow.

Private complainant Danilo Tangcoy and petitioner met at the

Admiral Royale Casino in Olongapo City sometime in 1990.
Private complainant was then engaged in the business of
lending money to casino players and, upon hearing that the
former had some pieces of jewelry for sale, petitioner
approached him on May 2, 1991 at the same casino and offered
to sell the said pieces of jewelry on commission basis. Private
complainant agreed, and as a consequence, he turned over to
petitioner the following items: an 18k diamond ring for men; a
woman's bracelet; one (1) men's necklace and another men's
G.R. No. 180016 April 29, 2014 bracelet, with an aggregate value of ₱98,000.00, as evidenced
by a receipt of even date. They both agreed that petitioner shall
LITO CORPUZ, Petitioner, remit the proceeds of the sale, and/or, if unsold, to return the
vs. same items, within a period of 60 days. The period expired
PEOPLE OF THE PHILIPPINES, Respondent. without petitioner remitting the proceeds of the sale or
returning the pieces of jewelry. When private complainant was
DECISION able to meet petitioner, the latter promised the former that he
will pay the value of the said items entrusted to him, but to no
PERALTA, J.: avail.

This is to resolve the Petition for Review on Certiorari, under Thus, an Information was filed against petitioner for the crime
Rule 45 of the Rules of Court, dated November 5, 2007, of of estafa, which reads as follows:

327
That on or about the fifth (5th) day of July 1991, in the City of
Olongapo, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, after having
received from one Danilo Tangcoy, one (1) men's diamond
ring, 18k, worth ₱45,000.00; one (1) three-baht men's bracelet,
22k, worth ₱25,000.00; one (1) two-baht ladies' bracelet, 22k,
worth ₱12,000.00, or in the total amount of Ninety-Eight
Thousand Pesos (₱98,000.00), Philippine currency, under
expressed obligation on the part of said accused to remit the
proceeds of the sale of the said items or to return the same, if
not sold, said accused, once in possession of the said items,
with intent to defraud, and with unfaithfulness and abuse of
confidence, and far from complying with his aforestated
obligation, did then and there wilfully, unlawfully and
feloniously misappropriate, misapply and convert to his own
personal use and benefit the aforesaid jewelries (sic) or the
proceeds of the sale thereof, and despite repeated demands, the
accused failed and refused to return the said items or to remit
the amount of Ninety- Eight Thousand Pesos (₱98,000.00),
Philippine currency, to the damage and prejudice of said
Danilo Tangcoy in the aforementioned amount.
CONTRARY TO LAW.
On January 28, 1992, petitioner, with the assistance of his
counsel, entered a plea of not guilty. Thereafter, trial on the
merits ensued.
The prosecution, to prove the above-stated facts, presented the
lone testimony of Danilo Tangcoy. On the other hand, the
defense presented the lone testimony of petitioner, which can
be summarized, as follows:
Petitioner and private complainant were collecting agents of
Antonio Balajadia, who is engaged in the financing business of
extending loans to Base employees. For every collection made,
they earn a commission. Petitioner denied having transacted
any business with private complainant.
However, he admitted obtaining a loan from Balajadia
sometime in 1989 for which he was made to sign a blank
receipt. He claimed that the same receipt was then dated May
2, 1991 and used as evidence against him for the supposed
agreement to sell the subject pieces of jewelry, which he did
not even see.
After trial, the RTC found petitioner guilty beyond reasonable
doubt of the crime charged in the Information. The dispositive
portion of the decision states:
WHEREFORE, finding accused LITO CORPUZ GUILTY
beyond reasonable doubt of the felony of Estafa under Article
315, paragraph one (1), subparagraph (b) of the Revised Penal
Code;
there being no offsetting generic aggravating nor ordinary
mitigating circumstance/s to vary the penalty imposable;
accordingly, the accused is hereby sentenced to suffer the
penalty of deprivation of liberty consisting of an imprisonment
under the Indeterminate Sentence Law of FOUR (4) YEARS
AND TWO (2) MONTHS of Prision Correccional in its
medium period AS MINIMUM, to FOURTEEN (14) YEARS
AND EIGHT (8) MONTHS of Reclusion Temporal in its
minimum period AS MAXIMUM; to indemnify private
328
complainant Danilo Tangcoy the amount of ₱98,000.00 as
actual damages, and to pay the costs of suit.
SO ORDERED.
The case was elevated to the CA, however, the latter denied the
appeal of petitioner and affirmed the decision of the RTC, thus:
WHEREFORE, the instant appeal is DENIED. The assailed
Judgment dated July 30, 2004 of the RTC of San Fernando
City (P), Branch 46, is hereby AFFIRMED with
MODIFICATION on the imposable prison term, such that
accused-appellant shall suffer the indeterminate penalty of 4
years and 2 months of prision correccional, as minimum, to 8
years of prision mayor, as maximum, plus 1 year for each
additional ₱10,000.00, or a total of 7 years. The rest of the
decision stands.
SO ORDERED.
Petitioner, after the CA denied his motion for reconsideration,
filed with this Court the present petition stating the following
grounds:
A. THE HONORABLE COURT OF APPEALS ERRED IN
CONFIRMING THE ADMISSION AND APPRECIATION
BY THE LOWER COURT OF PROSECUTION EVIDENCE,
INCLUDING ITS EXHIBITS, WHICH ARE MERE
MACHINE COPIES, AS THIS VIOLATES THE BEST
EVIDENCE RULE;
B. THE HONORABLE COURT OF APPEALS ERRED IN
AFFIRMING THE LOWER COURT'S FINDING THAT THE
CRIMINAL INFORMATION FOR ESTAFA WAS NOT
FATALLY DEFECTIVE ALTHOUGH THE SAME DID
NOT CHARGE THE OFFENSE UNDER ARTICLE 315 (1)
(B) OF THE REVISED PENAL CODE IN THAT -
1. THE INFORMATION DID NOT FIX A PERIOD WITHIN
WHICH THE SUBJECT [PIECES OF] JEWELRY SHOULD
BE RETURNED, IF UNSOLD, OR THE MONEY TO BE
REMITTED, IF SOLD;
2. THE DATE OF THE OCCURRENCE OF THE CRIME
ALLEGED IN THE INFORMATION AS OF 05 JULY 1991
WAS MATERIALLY DIFFERENT FROM THE ONE
TESTIFIED TO BY THE PRIVATE COMPLAINANT
WHICH WAS 02 MAY 1991;
C. THE HONORABLE COURT OF APPEALS ERRED IN
AFFIRMING THE LOWER COURT'S FINDING THAT
DEMAND TO RETURN THE SUBJECT [PIECES OF]
JEWELRY, IF UNSOLD, OR REMIT THE PROCEEDS, IF
SOLD – AN ELEMENT OF THE OFFENSE – WAS
PROVED;
D. THE HONORABLE COURT OF APPEALS ERRED IN
AFFIRMING THE LOWER COURT'S FINDING THAT THE
PROSECUTION'S CASE WAS PROVEN BEYOND
REASONABLE DOUBT ALTHOUGH -
1. THE PRIVATE COMPLAINANT TESTIFIED ON TWO
(2) VERSIONS OF THE INCIDENT;
329
2. THE VERSION OF THE PETITIONER – ACCUSED IS
MORE STRAIGHTFORWARD AND LOGICAL,
CONSISTENT WITH HUMAN EXPERIENCE;
3. THE EQUIPOISE RULE WAS NOT APPRECIATED IN
AND APPLIED TO THIS CASE;
4. PENAL STATUTES ARE STRICTLY CONSTRUED
AGAINST THE STATE.
In its Comment dated May 5, 2008, the Office of the Solicitor
General (OSG) stated the following counter-arguments:
The exhibits were properly admitted inasmuch as petitioner
failed to object to their admissibility.
The information was not defective inasmuch as it sufficiently
established the designation of the offense and the acts
complained of.
The prosecution sufficiently established all the elements of the
crime charged.
This Court finds the present petition devoid of any merit.
The factual findings of the appellate court generally are
conclusive, and carry even more weight when said court
affirms the findings of the trial court, absent any showing that
the findings are totally devoid of support in the records, or that
they are so glaringly erroneous as to constitute grave abuse of
discretion.4 Petitioner is of the opinion that the CA erred in
affirming the factual findings of the trial court. He now comes
to this Court raising both procedural and substantive issues.
According to petitioner, the CA erred in affirming the ruling of
the trial court, admitting in evidence a receipt dated May 2,
1991 marked as Exhibit "A" and its submarkings, although the
same was merely a photocopy, thus, violating the best evidence
rule. However, the records show that petitioner never objected
to the admissibility of the said evidence at the time it was
identified, marked and testified upon in court by private
complainant. The CA also correctly pointed out that petitioner
also failed to raise an objection in his Comment to the
prosecution's formal offer of evidence and even admitted
having signed the said receipt. The established doctrine is that
when a party failed to interpose a timely objection to evidence
at the time they were offered in evidence, such objection shall
be considered as waived.5
Another procedural issue raised is, as claimed by petitioner, the
formally defective Information filed against him. He contends
that the Information does not contain the period when the
pieces of jewelry were supposed to be returned and that the
date when the crime occurred was different from the one
testified to by private complainant. This argument is untenable.
The CA did not err in finding that the Information was
substantially complete and in reiterating that objections as to
the matters of form and substance in the Information cannot be
made for the first time on appeal. It is true that the gravamen of
the crime of estafa under Article 315, paragraph 1,
subparagraph (b) of the RPC is the appropriation or conversion
of money or property received to the prejudice of the owner6
and that the time of occurrence is not a material ingredient of
the crime, hence, the exclusion of the period and the wrong
date of the occurrence of the crime, as reflected in the
330
Information, do not make the latter fatally defective. The CA
ruled:
x x x An information is legally viable as long as it distinctly
states the statutory designation of the offense and the acts or
omissions constitutive thereof. Then Section 6, Rule 110 of the
Rules of Court provides that a complaint or information is
sufficient if it states the name of the accused;
the designation of the offense by the statute; the acts or
omissions complained of as constituting the offense; the name
of the offended party; the approximate time of the commission
of the offense, and the place wherein the offense was
committed. In the case at bar, a reading of the subject
Information shows compliance with the foregoing rule. That
the time of the commission of the offense was stated as " on or
about the fifth (5th) day of July, 1991" is not likewise fatal to
the prosecution's cause considering that Section 11 of the same
Rule requires a statement of the precise time only when the
same is a material ingredient of the offense. The gravamen of
the crime of estafa under Article 315, paragraph 1 (b) of the
Revised Penal Code (RPC) is the appropriation or conversion
of money or property received to the prejudice of the offender.
Thus, aside from the fact that the date of the commission
thereof is not an essential element of the crime herein charged,
the failure of the prosecution to specify the exact date does not
render the Information ipso facto defective. Moreover, the said
date is also near the due date within which accused-appellant
should have delivered the proceeds or returned the said [pieces
of jewelry] as testified upon by Tangkoy, hence, there was
sufficient compliance with the rules. Accused-appellant,
therefore, cannot now be allowed to claim that he was not
properly apprised of the charges proferred against him.7
It must be remembered that petitioner was convicted of the
crime of Estafa under Article 315, paragraph 1 (b) of the RPC,
which reads:
ART. 315. Swindling (estafa). – Any person who shall defraud
another by any of the means mentioned hereinbelow.
1. With unfaithfulness or abuse of confidence, namely:
xxxx
(b) By misappropriating or converting, to the prejudice of
another, money, goods, or any other personal property received
by the offender in trust or on commission, or for
administration, or under any other obligation involving the duty
to make delivery of or to return the same, even though such
obligation be totally or partially guaranteed by a bond; or by
denying having received such money, goods, or other property;
xxx
The elements of estafa with abuse of confidence are as follows:
(a) that money, goods or other personal property is received by
the offender in trust, or on commission, or for administration,
or under any other obligation involving the duty to make
delivery of, or to return the same; (b) that there be
misappropriation or conversion of such money or property by
the offender or denial on his part of such receipt; (c) that such
misappropriation or conversion or denial is to the prejudice of
another; and (d) that there is a demand made by the offended
party on the offender.8
331
Petitioner argues that the last element, which is, that there is a
demand by the offended party on the offender, was not proved. a No, sir.
This Court disagrees. In his testimony, private complainant
narrated how he was able to locate petitioner after almost two q Were you able to talk to him since 5 July 1991?
(2) months from the time he gave the pieces of jewelry and
asked petitioner about the same items with the latter promising a I talked to him, sir.
to pay them. Thus:
q How many times?
PROS. MARTINEZ
a Two times, sir.
q Now, Mr. Witness, this was executed on 2 May 1991, and
this transaction could have been finished on 5 July 1991, the q What did you talk (sic) to him?
question is what happens (sic) when the deadline came?
a About the items I gave to (sic) him, sir.
a I went looking for him, sir.
q Referring to Exhibit A-2?
q For whom?
a Yes, sir, and according to him he will take his obligation and
a Lito Corpuz, sir. I asked him where the items are and he promised me that he
will pay these amount, sir.
q Were you able to look (sic) for him?
q Up to this time that you were here, were you able to collect
a I looked for him for a week, sir. from him partially or full?

q Did you know his residence? a No, sir.9

a Yes, sir. No specific type of proof is required to show that there was
demand.10 Demand need not even be formal; it may be
q Did you go there? verbal.11 The specific word "demand" need not even be used
to show that it has indeed been made upon the person charged,
a Yes, sir. since even a mere query as to the whereabouts of the money [in
this case, property], would be tantamount to a demand.12 As
q Did you find him? expounded in Asejo v. People:13

332

With regard to the necessity of demand, we agree with the CA
that demand under this kind of estafa need not be formal or
written. The appellate court observed that the law is silent with
regard to the form of demand in estafa under Art. 315 1(b),
thus:
When the law does not qualify, We should not qualify. Should
a written demand be necessary, the law would have stated so.
Otherwise, the word "demand" should be interpreted in its
general meaning as to include both written and oral demand.
Thus, the failure of the prosecution to present a written demand
as evidence is not fatal.
In Tubb v. People, where the complainant merely verbally
inquired about the money entrusted to the accused, we held that
the query was tantamount to a demand, thus:
x x x [T]he law does not require a demand as a condition
precedent to the existence of the crime of embezzlement. It so
happens only that failure to account, upon demand for funds or
property held in trust, is circumstantial evidence of
misappropriation. The same way, however, be established by
other proof, such as that introduced in the case at bar.14
In view of the foregoing and based on the records, the
prosecution was able to prove the existence of all the elements
of the crime. Private complainant gave petitioner the pieces of
jewelry in trust, or on commission basis, as shown in the
receipt dated May 2, 1991 with an obligation to sell or return
the same within sixty (60) days, if unsold. There was
misappropriation when petitioner failed to remit the proceeds
of those pieces of jewelry sold, or if no sale took place, failed
to return the same pieces of jewelry within or after the agreed
period despite demand from the private complainant, to the
prejudice of the latter.
Anent the credibility of the prosecution's sole witness, which is
questioned by petitioner, the same is unmeritorious. Settled is
the rule that in assessing the credibility of witnesses, this Court
gives great respect to the evaluation of the trial court for it had
the unique opportunity to observe the demeanor of witnesses
and their deportment on the witness stand, an opportunity
denied the appellate courts, which merely rely on the records of
the case.15 The assessment by the trial court is even conclusive
and binding if not tainted with arbitrariness or oversight of
some fact or circumstance of weight and influence, especially
when such finding is affirmed by the CA.16 Truth is
established not by the number of witnesses, but by the quality
of their testimonies, for in determining the value and credibility
of evidence, the witnesses are to be weighed not numbered.17
As regards the penalty, while this Court's Third Division was
deliberating on this case, the question of the continued validity
of imposing on persons convicted of crimes involving property
came up. The legislature apparently pegged these penalties to
the value of the money and property in 1930 when it enacted
the Revised Penal Code. Since the members of the division
reached no unanimity on this question and since the issues are
of first impression, they decided to refer the case to the Court
en banc for consideration and resolution. Thus, several amici
curiae were invited at the behest of the Court to give their
academic opinions on the matter. Among those that graciously
complied were Dean Jose Manuel Diokno, Dean Sedfrey M.
Candelaria, Professor Alfredo F. Tadiar, the Senate President,
and the Speaker of the House of Representatives. The parties
333
were later heard on oral arguments before the Court en banc,
with Atty. Mario L. Bautista appearing as counsel de oficio of
the petitioner.
After a thorough consideration of the arguments presented on
the matter, this Court finds the following:
There seems to be a perceived injustice brought about by the
range of penalties that the courts continue to impose on crimes
against property committed today, based on the amount of
damage measured by the value of money eighty years ago in
1932. However, this Court cannot modify the said range of
penalties because that would constitute judicial legislation.
What the legislature's perceived failure in amending the
penalties provided for in the said crimes cannot be remedied
through this Court's decisions, as that would be encroaching
upon the power of another branch of the government. This,
however, does not render the whole situation without any
remedy. It can be appropriately presumed that the framers of
the Revised Penal Code (RPC) had anticipated this matter by
including Article 5, which reads:
ART. 5. Duty of the court in connection with acts which should
be repressed but which are not covered by the law, and in cases
of excessive penalties. - Whenever a court has knowledge of
any act which it may deem proper to repress and which is not
punishable by law, it shall render the proper decision, and shall
report to the Chief Executive, through the Department of
Justice, the reasons which induce the court to believe that said
act should be made the subject of penal legislation.
In the same way, the court shall submit to the Chief Executive,
through the Department of Justice, such statement as may be
deemed proper, without suspending the execution of the
sentence, when a strict enforcement of the provisions of this
Code would result in the imposition of a clearly excessive
penalty, taking into consideration the degree of malice and the
injury caused by the offense.18
The first paragraph of the above provision clearly states that for
acts bourne out of a case which is not punishable by law and
the court finds it proper to repress, the remedy is to render the
proper decision and thereafter, report to the Chief Executive,
through the Department of Justice, the reasons why the same
act should be the subject of penal legislation. The premise here
is that a deplorable act is present but is not the subject of any
penal legislation, thus, the court is tasked to inform the Chief
Executive of the need to make that act punishable by law
through legislation. The second paragraph is similar to the first
except for the situation wherein the act is already punishable by
law but the corresponding penalty is deemed by the court as
excessive. The remedy therefore, as in the first paragraph is not
to suspend the execution of the sentence but to submit to the
Chief Executive the reasons why the court considers the said
penalty to be non-commensurate with the act committed.
Again, the court is tasked to inform the Chief Executive, this
time, of the need for a legislation to provide the proper penalty.
In his book, Commentaries on the Revised Penal Code,19
Guillermo B. Guevara opined that in Article 5, the duty of the
court is merely to report to the Chief Executive, with a
recommendation for an amendment or modification of the legal
provisions which it believes to be harsh. Thus:
This provision is based under the legal maxim "nullum crimen,
nulla poena sige lege," that is, that there can exist no
334
punishable act except those previously and specifically
provided for by penal statute.
No matter how reprehensible an act is, if the law-making body
does not deem it necessary to prohibit its perpetration with
penal sanction, the Court of justice will be entirely powerless to
punish such act.
Under the provisions of this article the Court cannot suspend
the execution of a sentence on the ground that the strict
enforcement of the provisions of this Code would cause
excessive or harsh penalty. All that the Court could do in such
eventuality is to report the matter to the Chief Executive with a
recommendation for an amendment or modification of the legal
provisions which it believes to be harsh.20
Anent the non-suspension of the execution of the sentence,
retired Chief Justice Ramon C. Aquino and retired Associate
Justice Carolina C. Griño-Aquino, in their book, The Revised
Penal Code,21 echoed the above-cited commentary, thus:
The second paragraph of Art. 5 is an application of the
humanitarian principle that justice must be tempered with
mercy. Generally, the courts have nothing to do with the
wisdom or justness of the penalties fixed by law. "Whether or
not the penalties prescribed by law upon conviction of
violations of particular statutes are too severe or are not severe
enough, are questions as to which commentators on the law
may fairly differ; but it is the duty of the courts to enforce the
will of the legislator in all cases unless it clearly appears that a
given penalty falls within the prohibited class of excessive
fines or cruel and unusual punishment." A petition for
clemency should be addressed to the Chief Executive.22
There is an opinion that the penalties provided for in crimes
against property be based on the current inflation rate or at the
ratio of ₱1.00 is equal to ₱100.00 . However, it would be
dangerous as this would result in uncertainties, as opposed to
the definite imposition of the penalties. It must be remembered
that the economy fluctuates and if the proposed imposition of
the penalties in crimes against property be adopted, the
penalties will not cease to change, thus, making the RPC, a
self-amending law. Had the framers of the RPC intended that to
be so, it should have provided the same, instead, it included the
earlier cited Article 5 as a remedy. It is also improper to
presume why the present legislature has not made any moves to
amend the subject penalties in order to conform with the
present times. For all we know, the legislature intends to retain
the same penalties in order to deter the further commission of
those punishable acts which have increased tremendously
through the years. In fact, in recent moves of the legislature, it
is apparent that it aims to broaden the coverage of those who
violate penal laws. In the crime of Plunder, from its original
minimum amount of ₱100,000,000.00 plundered, the
legislature lowered it to ₱50,000,000.00. In the same way, the
legislature lowered the threshold amount upon which the Anti-
Money Laundering Act may apply, from ₱1,000,000.00 to
₱500,000.00.
It is also worth noting that in the crimes of Theft and Estafa,
the present penalties do not seem to be excessive compared to
the proposed imposition of their corresponding penalties. In
Theft, the provisions state that:
Art. 309. Penalties. — Any person guilty of theft shall be
punished by:
335

1. The penalty of prision mayor in its minimum and medium
periods, if the value of the thing stolen is more than 12,000
pesos but does not exceed 22,000 pesos, but if the value of the
thing stolen exceeds the latter amount the penalty shall be the
maximum period of the one prescribed in this paragraph, and
one year for each additional ten thousand pesos, but the total of
the penalty which may be imposed shall not exceed twenty
years. In such cases, and in connection with the accessory
penalties which may be imposed and for the purpose of the
other provisions of this Code, the penalty shall be termed
prision mayor or reclusion temporal, as the case may be.
2. The penalty of prision correccional in its medium and
maximum periods, if the value of the thing stolen is more than
6,000 pesos but does not exceed 12,000 pesos.
3. The penalty of prision correccional in its minimum and
medium periods, if the value of the property stolen is more than
200 pesos but does not exceed 6,000 pesos.
4. Arresto mayor in its medium period to prision correccional
in its minimum period, if the value of the property stolen is
over 50 pesos but does not exceed 200 pesos.
5. Arresto mayor to its full extent, if such value is over 5 pesos
but does not exceed 50 pesos.
6. Arresto mayor in its minimum and medium periods, if such
value does not exceed 5 pesos.
7. Arresto menor or a fine not exceeding 200 pesos, if the theft
is committed under the circumstances enumerated in paragraph
3 of the next preceding article and the value of the thing stolen
does not exceed 5 pesos. If such value exceeds said amount, the
provision of any of the five preceding subdivisions shall be
made applicable.
8. Arresto menor in its minimum period or a fine not exceeding
50 pesos, when the value of the thing stolen is not over 5 pesos,
and the offender shall have acted under the impulse of hunger,
poverty, or the difficulty of earning a livelihood for the support
of himself or his family.
In a case wherein the value of the thing stolen is ₱6,000.00, the
above-provision states that the penalty is prision correccional
in its minimum and medium periods (6 months and 1 day to 4
years and 2 months). Applying the proposal, if the value of the
thing stolen is ₱6,000.00, the penalty is imprisonment of
arresto mayor in its medium period to prision correccional
minimum period (2 months and 1 day to 2 years and 4 months).
It would seem that under the present law, the penalty imposed
is almost the same as the penalty proposed. In fact, after the
application of the Indeterminate Sentence Law under the
existing law, the minimum penalty is still lowered by one
degree; hence, the minimum penalty is arresto mayor in its
medium period to maximum period (2 months and 1 day to 6
months), making the offender qualified for pardon or parole
after serving the said minimum period and may even apply for
probation. Moreover, under the proposal, the minimum penalty
after applying the Indeterminate Sentence Law is arresto menor
in its maximum period to arresto mayor in its minimum period
(21 days to 2 months) is not too far from the minimum period
under the existing law. Thus, it would seem that the present
penalty imposed under the law is not at all excessive. The same
is also true in the crime of Estafa.23
336
Moreover, if we apply the ratio of 1:100, as suggested to the
value of the thing stolen in the crime of Theft and the damage
caused in the crime of Estafa, the gap between the minimum
and the maximum amounts, which is the basis of determining
the proper penalty to be imposed, would be too wide and the
penalty imposable would no longer be commensurate to the act
committed and the value of the thing stolen or the damage
caused:
I. Article 309, or the penalties for the crime of Theft, the value
would be modified but the penalties are not changed:
1. ₱12,000.00 to ₱22,000.00 will become ₱1,200,000.00 to
₱2,200,000.00, punished by prision mayor minimum to prision
mayor medium (6 years and 1 day to 10 years).
2. ₱6,000.00 to ₱12,000.00 will become ₱600,000.00 to
₱1,200,000.00, punished by prision correccional medium and
to prision correccional maximum (2 years, 4 months and 1 day
to 6 years).24
3. ₱200.00 to ₱6,000.00 will become ₱20,000.00 to
₱600,000.00, punishable by prision correccional minimum to
prision correccional medium (6 months and 1 day to 4 years
and 2 months).
4. ₱50.00 to ₱200.00 will become ₱5,000.00 to ₱20,000.00,
punishable by arresto mayor medium to prision correccional
minimum (2 months and 1 day to 2 years and 4 months).
5. ₱5.00 to ₱50.00 will become ₱500.00 to ₱5,000.00,
punishable by arresto mayor (1 month and 1 day to 6 months).
6. ₱5.00 will become ₱500.00, punishable by arresto mayor
minimum to arresto mayor medium.
x x x x.
II. Article 315, or the penalties for the crime of Estafa, the
value would also be modified but the penalties are not changed,
as follows:
1st. ₱12,000.00 to ₱22,000.00, will become ₱1,200,000.00 to
₱2,200,000.00, punishable by prision correccional maximum to
prision mayor minimum (4 years, 2 months and 1 day to 8
years).25
2nd. ₱6,000.00 to ₱12,000.00 will become ₱600,000.00 to
₱1,200,000.00, punishable by prision correccional minimum to
prision correccional medium (6 months and 1 day to 4 years
and 2 months).26
3rd. ₱200.00 to ₱6,000.00 will become ₱20,000.00 to
₱600,000.00, punishable by arresto mayor maximum to prision
correccional minimum (4 months and 1 day to 2 years and 4
months).
4th. ₱200.00 will become ₱20,000.00, punishable by arresto
mayor maximum (4 months and 1 day to 6 months).
An argument raised by Dean Jose Manuel I. Diokno, one of our
esteemed amici curiae, is that the incremental penalty provided
under Article 315 of the RPC violates the Equal Protection
Clause.
337
The equal protection clause requires equality among equals,
which is determined according to a valid classification. The test
developed by jurisprudence here and yonder is that of
reasonableness,27 which has four requisites:
(1) The classification rests on substantial distinctions;
(2) It is germane to the purposes of the law;
(3) It is not limited to existing conditions only; and
(4) It applies equally to all members of the same class.28
According to Dean Diokno, the Incremental Penalty Rule (IPR)
does not rest on substantial distinctions as ₱10,000.00 may
have been substantial in the past, but it is not so today, which
violates the first requisite; the IPR was devised so that those
who commit estafa involving higher amounts would receive
heavier penalties; however, this is no longer achieved, because
a person who steals ₱142,000.00 would receive the same
penalty as someone who steals hundreds of millions, which
violates the second requisite; and, the IPR violates requisite no.
3, considering that the IPR is limited to existing conditions at
the time the law was promulgated, conditions that no longer
exist today.
Assuming that the Court submits to the argument of Dean
Diokno and declares the incremental penalty in Article 315
unconstitutional for violating the equal protection clause, what
then is the penalty that should be applied in case the amount of
the thing subject matter of the crime exceeds ₱22,000.00? It
seems that the proposition poses more questions than answers,
which leads us even more to conclude that the appropriate
remedy is to refer these matters to Congress for them to
exercise their inherent power to legislate laws.
Even Dean Diokno was of the opinion that if the Court declares
the IPR unconstitutional, the remedy is to go to Congress.
Thus:
xxxx
JUSTICE PERALTA:
Now, your position is to declare that the incremental penalty
should be struck down as unconstitutional because it is absurd.
DEAN DIOKNO:
Absurd, it violates equal protection, Your Honor, and cruel and
unusual punishment.
JUSTICE PERALTA:
Then what will be the penalty that we are going to impose if
the amount is more than Twenty-Two Thousand (₱22,000.00)
Pesos.
DEAN DIOKNO:
Well, that would be for Congress to ... if this Court will declare
the incremental penalty rule unconstitutional, then that would
... the void should be filled by Congress.
JUSTICE PERALTA:
338
But in your presentation, you were fixing the amount at One
Hundred Thousand (₱100,000.00) Pesos ... ....then....

DEAN DIOKNO: JUSTICE PERALTA:

Well, my presen ... (interrupted) Ah, yeah. But if we declare the incremental penalty as
unsconstitutional, the court cannot fix the amount ...
JUSTICE PERALTA:
DEAN DIOKNO:
For every One Hundred Thousand (₱100,000.00) Pesos in
excess of Twenty-Two Thousand (₱22,000.00) Pesos you were No, Your Honor.
suggesting an additional penalty of one (1) year, did I get you
right? JUSTICE PERALTA:

DEAN DIOKNO: ... as the equivalent of one, as an incremental penalty in excess

of Twenty-Two Thousand (₱22,000.00) Pesos.
Yes, Your Honor, that is, if the court will take the route of
statutory interpretation. DEAN DIOKNO:

JUSTICE PERALTA: No, Your Honor.

Ah ... JUSTICE PERALTA:

DEAN DIOKNO: The Court cannot do that.

If the Court will say that they can go beyond the literal wording DEAN DIOKNO:
of the law...
Could not be.
JUSTICE PERALTA:
JUSTICE PERALTA:
But if we de ... (interrupted)
The only remedy is to go to Congress...
DEAN DIOKNO:

339
DEAN DIOKNO:
Dean Diokno also contends that Article 315 of the Revised
Yes, Your Honor. Penal Code constitutes cruel and unusual punishment. Citing
Solem v. Helm,30 Dean Diokno avers that the United States
JUSTICE PERALTA: Federal Supreme Court has expanded the application of a
similar Constitutional provision prohibiting cruel and unusual
... and determine the value or the amount. punishment, to the duration of the penalty, and not just its
form. The court therein ruled that three things must be done to
DEAN DIOKNO: decide whether a sentence is proportional to a specific crime,
viz.; (1) Compare the nature and gravity of the offense, and the
Yes, Your Honor. harshness of the penalty; (2) Compare the sentences imposed
on other criminals in the same jurisdiction, i.e., whether more
JUSTICE PERALTA: serious crimes are subject to the same penalty or to less serious
penalties; and (3) Compare the sentences imposed for
That will be equivalent to the incremental penalty of one (1) commission of the same crime in other jurisdictions.
year in excess of Twenty-Two Thousand (₱22,000.00) Pesos.
However, the case of Solem v. Helm cannot be applied in the
DEAN DIOKNO: present case, because in Solem what respondent therein
deemed cruel was the penalty imposed by the state court of
Yes, Your Honor. South Dakota after it took into account the latter’s recidivist
statute and not the original penalty for uttering a "no account"
JUSTICE PERALTA: check. Normally, the maximum punishment for the crime
would have been five years imprisonment and a $5,000.00 fine.
The amount in excess of Twenty-Two Thousand (₱22,000.00) Nonetheless, respondent was sentenced to life imprisonment
Pesos. without the possibility of parole under South Dakota’s
recidivist statute because of his six prior felony convictions.
Thank you, Dean. Surely, the factual antecedents of Solem are different from the
present controversy.
DEAN DIOKNO:
With respect to the crime of Qualified Theft, however, it is true
Thank you. that the imposable penalty for the offense is high. Nevertheless,
the rationale for the imposition of a higher penalty against a
x x x x29 domestic servant is the fact that in the commission of the

340
crime, the helper will essentially gravely abuse the trust and
confidence reposed upon her by her employer. After accepting
and allowing the helper to be a member of the household, thus
entrusting upon such person the protection and safekeeping of
the employer’s loved ones and properties, a subsequent
betrayal of that trust is so repulsive as to warrant the necessity
of imposing a higher penalty to deter the commission of such
wrongful acts.
There are other crimes where the penalty of fine and/or
imprisonment are dependent on the subject matter of the crime
and which, by adopting the proposal, may create serious
implications. For example, in the crime of Malversation, the
penalty imposed depends on the amount of the money
malversed by the public official, thus:
Art. 217. Malversation of public funds or property;
Presumption of malversation. — Any public officer who, by
reason of the duties of his office, is accountable for public
funds or property, shall appropriate the same or shall take or
misappropriate or shall consent, through abandonment or
negligence, shall permit any other person to take such public
funds, or property, wholly or partially, or shall otherwise be
guilty of the misappropriation or malversation of such funds or
property, shall suffer:
1. The penalty of prision correccional in its medium and
maximum periods, if the amount involved in the
misappropriation or malversation does not exceed two hundred
pesos.
2. The penalty of prision mayor in its minimum and medium
periods, if the amount involved is more than two hundred pesos
but does not exceed six thousand pesos.
3. The penalty of prision mayor in its maximum period to
reclusion temporal in its minimum period, if the amount
involved is more than six thousand pesos but is less than twelve
thousand pesos.
4. The penalty of reclusion temporal, in its medium and
maximum periods, if the amount involved is more than twelve
thousand pesos but is less than twenty-two thousand pesos. If
the amount exceeds the latter, the penalty shall be reclusion
temporal in its maximum period to reclusion perpetua.
In all cases, persons guilty of malversation shall also suffer the
penalty of perpetual special disqualification and a fine equal to
the amount of the funds malversed or equal to the total value of
the property embezzled.
The failure of a public officer to have duly forthcoming any
public funds or property with which he is chargeable, upon
demand by any duly authorized officer, shall be prima facie
evidence that he has put such missing funds or property to
personal use.
The above-provisions contemplate a situation wherein the
Government loses money due to the unlawful acts of the
offender. Thus, following the proposal, if the amount
malversed is ₱200.00 (under the existing law), the amount now
becomes ₱20,000.00 and the penalty is prision correccional in
its medium and maximum periods (2 years 4 months and 1 day
to 6 years). The penalty may not be commensurate to the act of
341
embezzlement of ₱20,000.00 compared to the acts committed
by public officials punishable by a special law, i.e., Republic
Act No. 3019 or the Anti-Graft and Corrupt Practices Act,
specifically Section 3,31 wherein the injury caused to the
government is not generally defined by any monetary amount,
the penalty (6 years and 1 month to 15 years)32 under the Anti-
Graft Law will now become higher. This should not be the
case, because in the crime of malversation, the public official
takes advantage of his public position to embezzle the fund or
property of the government entrusted to him.
The said inequity is also apparent in the crime of Robbery with
force upon things (inhabited or uninhabited) where the value of
the thing unlawfully taken and the act of unlawful entry are the
bases of the penalty imposable, and also, in Malicious
Mischief, where the penalty of imprisonment or fine is
dependent on the cost of the damage caused.
In Robbery with force upon things (inhabited or uninhabited),
if we increase the value of the thing unlawfully taken, as
proposed in the ponencia, the sole basis of the penalty will now
be the value of the thing unlawfully taken and no longer the
element of force employed in entering the premises. It may
likewise cause an inequity between the crime of Qualified
Trespass to Dwelling under Article 280, and this kind of
robbery because the former is punishable by prision
correccional in its medium and maximum periods (2 years, 4
months and 1 day to 6 years) and a fine not exceeding
₱1,000.00 (₱100,000.00 now if the ratio is 1:100) where
entrance to the premises is with violence or intimidation, which
is the main justification of the penalty. Whereas in the crime of
Robbery with force upon things, it is punished with a penalty
of prision mayor (6 years and 1 day to 12 years) if the intruder
is unarmed without the penalty of Fine despite the fact that it is
not merely the illegal entry that is the basis of the penalty but
likewise the unlawful taking.
Furthermore, in the crime of Other Mischiefs under Article
329, the highest penalty that can be imposed is arresto mayor in
its medium and maximum periods (2 months and 1 day to 6
months) if the value of the damage caused exceeds ₱1,000.00,
but under the proposal, the value of the damage will now
become ₱100,000.00 (1:100), and still punishable by arresto
mayor (1 month and 1 day to 6 months). And, if the value of
the damaged property does not exceed ₱200.00, the penalty is
arresto menor or a fine of not less than the value of the damage
caused and not more than ₱200.00, if the amount involved does
not exceed ₱200.00 or cannot be estimated. Under the
proposal, ₱200.00 will now become ₱20,000.00, which simply
means that the fine of ₱200.00 under the existing law will now
become ₱20,000.00. The amount of Fine under this situation
will now become excessive and afflictive in nature despite the
fact that the offense is categorized as a light felony penalized
with a light penalty under Article 26 of the RPC.33 Unless we
also amend Article 26 of the RPC, there will be grave
implications on the penalty of Fine, but changing the same
through Court decision, either expressly or impliedly, may not
be legally and constitutionally feasible.
There are other crimes against property and swindling in the
RPC that may also be affected by the proposal, such as those
that impose imprisonment and/or Fine as a penalty based on the
value of the damage caused, to wit: Article 311 (Theft of the
property of the National Library and National Museum),
Article 312 (Occupation of real property or usurpation of real
rights in property), Article 313 (Altering boundaries or
342
landmarks), Article 316 (Other forms of swindling), Article
317 (Swindling a minor), Article 318 (Other deceits), Article
328 (Special cases of malicious mischief) and Article 331
(Destroying or damaging statues, public monuments or
paintings). Other crimes that impose Fine as a penalty will also
be affected, such as: Article 213 (Frauds against the public
treasury and similar offenses), Article 215 (Prohibited
Transactions),
Article 216 (Possession of prohibited interest by a public
officer), Article 218 (Failure of accountable officer to render
accounts), Article 219 (Failure of a responsible public officer
to render accounts before leaving the country).
In addition, the proposal will not only affect crimes under the
RPC. It will also affect crimes which are punishable by special
penal laws, such as Illegal Logging or Violation of Section 68
of Presidential Decree No. 705, as amended.34 The law treats
cutting, gathering, collecting and possessing timber or other
forest products without license as an offense as grave as and
equivalent to the felony of qualified theft.35 Under the law, the
offender shall be punished with the penalties imposed under
Articles 309 and 31036 of the Revised Penal Code, which
means that the penalty imposable for the offense is, again,
based on the value of the timber or forest products involved in
the offense. Now, if we accept the said proposal in the crime of
Theft, will this particular crime of Illegal Logging be amended
also in so far as the penalty is concerned because the penalty is
dependent on Articles 309 and 310 of the RPC? The answer is
in the negative because the soundness of this particular law is
not in question.
With the numerous crimes defined and penalized under the
Revised Penal Code and Special Laws, and other related
provisions of these laws affected by the proposal, a thorough
study is needed to determine its effectivity and necessity. There
may be some provisions of the law that should be amended;
nevertheless, this Court is in no position to conclude as to the
intentions of the framers of the Revised Penal Code by merely
making a study of the applicability of the penalties imposable
in the present times. Such is not within the competence of the
Court but of the Legislature which is empowered to conduct
public hearings on the matter, consult legal luminaries and
who, after due proceedings, can decide whether or not to
amend or to revise the questioned law or other laws, or even
create a new legislation which will adopt to the times.
Admittedly, Congress is aware that there is an urgent need to
amend the Revised Penal Code. During the oral arguments,
counsel for the Senate informed the Court that at present, fifty-
six (56) bills are now pending in the Senate seeking to amend
the Revised Penal Code,37 each one proposing much needed
change and updates to archaic laws that were promulgated
decades ago when the political, socio-economic, and cultural
settings were far different from today’s conditions.
Verily, the primordial duty of the Court is merely to apply the
law in such a way that it shall not usurp legislative powers by
judicial legislation and that in the course of such application or
construction, it should not make or supervise legislation, or
under the guise of interpretation, modify, revise, amend,
distort, remodel, or rewrite the law, or give the law a
construction which is repugnant to its terms.38 The Court
should apply the law in a manner that would give effect to their
letter and spirit, especially when the law is clear as to its intent
343
and purpose. Succinctly put, the Court should shy away from
encroaching upon the primary function of a co-equal branch of
the Government; otherwise, this would lead to an inexcusable
breach of the doctrine of separation of powers by means of
judicial legislation.
Moreover, it is to be noted that civil indemnity is, technically,
not a penalty or a Fine; hence, it can be increased by the Court
when appropriate. Article 2206 of the Civil Code provides:
Art. 2206. The amount of damages for death caused by a crime
or quasi-delict shall be at least three thousand pesos, even
though there may have been mitigating circumstances. In
addition:
(1) The defendant shall be liable for the loss of the earning
capacity of the deceased, and the indemnity shall be paid to the
heirs of the latter; such indemnity shall in every case be
assessed and awarded by the court, unless the deceased on
account of permanent physical disability not caused by the
defendant, had no earning capacity at the time of his death;
(2) If the deceased was obliged to give support according to the
provisions of Article 291, the recipient who is not an heir
called to the decedent's inheritance by the law of testate or
intestate succession, may demand support from the person
causing the death, for a period not exceeding five years, the
exact duration to be fixed by the court;
(3) The spouse, legitimate and illegitimate descendants and
ascendants of the deceased may demand moral damages for
mental anguish by reason of the death of the deceased.
In our jurisdiction, civil indemnity is awarded to the offended
party as a kind of monetary restitution or compensation to the
victim for the damage or infraction that was done to the latter
by the accused, which in a sense only covers the civil aspect.
Precisely, it is civil indemnity. Thus, in a crime where a person
dies, in addition to the penalty of imprisonment imposed to the
offender, the accused is also ordered to pay the victim a sum of
money as restitution. Clearly, this award of civil indemnity due
to the death of the victim could not be contemplated as akin to
the value of a thing that is unlawfully taken which is the basis
in the imposition of the proper penalty in certain crimes. Thus,
the reasoning in increasing the value of civil indemnity
awarded in some offense cannot be the same reasoning that
would sustain the adoption of the suggested ratio. Also, it is
apparent from Article 2206 that the law only imposes a
minimum amount for awards of civil indemnity, which is
₱3,000.00. The law did not provide for a ceiling. Thus,
although the minimum amount for the award cannot be
changed, increasing the amount awarded as civil indemnity can
be validly modified and increased when the present
circumstance warrants it. Corollarily, moral damages under
Article 222039 of the Civil Code also does not fix the amount
of damages that can be awarded. It is discretionary upon the
court, depending on the mental anguish or the suffering of the
private offended party. The amount of moral damages can, in
relation to civil indemnity, be adjusted so long as it does not
exceed the award of civil indemnity.
In addition, some may view the penalty provided by law for the
offense committed as tantamount to cruel punishment.
However, all penalties are generally harsh, being punitive in
nature. Whether or not they are excessive or amount to cruel
punishment is a matter that should be left to lawmakers. It is
344
the prerogative of the courts to apply the law, especially when
they are clear and not subject to any other interpretation than
that which is plainly written.
Similar to the argument of Dean Diokno, one of Justice
Antonio Carpio’s opinions is that the incremental penalty
provision should be declared unconstitutional and that the
courts should only impose the penalty corresponding to the
amount of ₱22,000.00, regardless if the actual amount involved
exceeds ₱22,000.00. As suggested, however, from now until
the law is properly amended by Congress, all crimes of Estafa
will no longer be punished by the appropriate penalty. A
conundrum in the regular course of criminal justice would
occur when every accused convicted of the crime of estafa will
be meted penalties different from the proper penalty that should
be imposed. Such drastic twist in the application of the law has
no legal basis and directly runs counter to what the law
provides.
It should be noted that the death penalty was reintroduced in
the dispensation of criminal justice by the Ramos
Administration by virtue of Republic Act No. 765940 in
December 1993. The said law has been questioned before this
Court. There is, arguably, no punishment more cruel than that
of death. Yet still, from the time the death penalty was re-
imposed until its lifting in June 2006 by Republic Act No.
9346,41 the Court did not impede the imposition of the death
penalty on the ground that it is a "cruel punishment" within the
purview of Section 19 (1),42 Article III of the Constitution.
Ultimately, it was through an act of Congress suspending the
imposition of the death penalty that led to its non-imposition
and not via the intervention of the Court.
Even if the imposable penalty amounts to cruel punishment, the
Court cannot declare the provision of the law from which the
proper penalty emanates unconstitutional in the present action.
Not only is it violative of due process, considering that the
State and the concerned parties were not given the opportunity
to comment on the subject matter, it is settled that the
constitutionality of a statute cannot be attacked collaterally
because constitutionality issues must be pleaded directly and
not collaterally,43 more so in the present controversy wherein
the issues never touched upon the constitutionality of any of
the provisions of the Revised Penal Code.
Besides, it has long been held that the prohibition of cruel and
unusual punishments is generally aimed at the form or
character of the punishment rather than its severity in respect of
duration or amount, and applies to punishments which public
sentiment has regarded as cruel or obsolete, for instance, those
inflicted at the whipping post, or in the pillory, burning at the
stake, breaking on the wheel, disemboweling, and the like. Fine
and imprisonment would not thus be within the prohibition.44
It takes more than merely being harsh, excessive, out of
proportion, or severe for a penalty to be obnoxious to the
Constitution. The fact that the punishment authorized by the
statute is severe does not make it cruel and unusual. Expressed
in other terms, it has been held that to come under the ban, the
punishment must be "flagrantly and plainly oppressive,"
"wholly disproportionate to the nature of the offense as to
shock the moral sense of the community."45
Cruel as it may be, as discussed above, it is for the Congress to
amend the law and adapt it to our modern time.
345
The solution to the present controversy could not be solved by PROFESSOR TADIAR:
merely adjusting the questioned monetary values to the present
value of money based only on the current inflation rate. There Per capita income.
are other factors and variables that need to be taken into
consideration, researched, and deliberated upon before the said JUSTICE PERALTA:
values could be accurately and properly adjusted. The effects
on the society, the injured party, the accused, its socio- Consumer price index.
economic impact, and the likes must be painstakingly evaluated
and weighed upon in order to arrive at a wholistic change that PROFESSOR TADIAR:
all of us believe should be made to our existing law.
Dejectedly, the Court is ill-equipped, has no resources, and Yeah.
lacks sufficient personnel to conduct public hearings and
sponsor studies and surveys to validly effect these changes in JUSTICE PERALTA:
our Revised Penal Code. This function clearly and
appropriately belongs to Congress. Even Professor Tadiar Inflation ...
concedes to this conclusion, to wit:
PROFESSOR TADIAR:
xxxx
Yes.
JUSTICE PERALTA:
JUSTICE PERALTA:
Yeah, Just one question. You are suggesting that in order to
determine the value of Peso you have to take into consideration ... and so on. Is the Supreme Court equipped to determine those
several factors. factors?

PROFESSOR TADIAR: PROFESSOR TADIAR:

Yes. There are many ways by which the value of the Philippine Peso
can be determined utilizing all of those economic terms.
JUSTICE PERALTA:
JUSTICE PERALTA:
Per capita income.
Yeah, but ...

346
 JUSTICE PERALTA:
PROFESSOR TADIAR:
Thank you, Professor.
And I don’t think it is within the power of the Supreme Court
to pass upon and peg the value to One Hundred (₱100.00) PROFESSOR TADIAR:
Pesos to ...
Thank you.46
JUSTICE PERALTA:
Finally, the opinion advanced by Chief Justice Maria Lourdes
Yeah. P. A. Sereno echoes the view that the role of the Court is not
merely to dispense justice, but also the active duty to prevent
PROFESSOR TADIAR: injustice. Thus, in order to prevent injustice in the present
controversy, the Court should not impose an obsolete penalty
... One (₱1.00.00) Peso in 1930. pegged eighty three years ago, but consider the proposed ratio
of 1:100 as simply compensating for inflation. Furthermore, the
JUSTICE PERALTA: Court has in the past taken into consideration "changed
conditions" or "significant changes in circumstances" in its
That is legislative in nature. decisions.

PROFESSOR TADIAR: Similarly, the Chief Justice is of the view that the Court is not
delving into the validity of the substance of a statute. The issue
That is my position that the Supreme Court ... is no different from the Court’s adjustment of indemnity in
crimes against persons, which the Court had previously
JUSTICE PERALTA: adjusted in light of current times, like in the case of People v.
Pantoja.47 Besides, Article 10 of the Civil Code mandates a
Yeah, okay. presumption that the lawmaking body intended right and
justice to prevail.
PROFESSOR TADIAR:
With due respect to the opinions and proposals advanced by the
... has no power to utilize the power of judicial review to in Chief Justice and my Colleagues, all the proposals ultimately
order to adjust, to make the adjustment that is a power that lead to prohibited judicial legislation. Short of being repetitious
belongs to the legislature. and as extensively discussed above, it is truly beyond the
powers of the Court to legislate laws, such immense power

347
belongs to Congress and the Court should refrain from crossing
this clear-cut divide. With regard to civil indemnity, as
elucidated before, this refers to civil liability which is awarded
to the offended party as a kind of monetary restitution. It is
truly based on the value of money. The same cannot be said on
penalties because, as earlier stated, penalties are not only based
on the value of money, but on several other factors. Further,
since the law is silent as to the maximum amount that can be
awarded and only pegged the minimum sum, increasing the
amount granted as civil indemnity is not proscribed. Thus, it
can be adjusted in light of current conditions.
Now, with regard to the penalty imposed in the present case,
the CA modified the ruling of the RTC. The RTC imposed the
indeterminate penalty of four (4) years and two (2) months of
prision correccional in its medium period, as minimum, to
fourteen (14) years and eight (8) months of reclusion temporal
in its minimum period, as maximum. However, the CA
imposed the indeterminate penalty of four (4) years and two (2)
months of prision correccional, as minimum, to eight (8) years
of prision mayor, as maximum, plus one (1) year for each
additional ₱10,000.00, or a total of seven (7) years.
In computing the penalty for this type of estafa, this Court's
ruling in Cosme, Jr. v. People48 is highly instructive, thus:
With respect to the imposable penalty, Article 315 of the
Revised Penal Code provides:
ART. 315 Swindling (estafa). - Any person who shall defraud
another by any of the means mentioned hereinbelow shall be
punished by:
1st. The penalty of prision correccional in its maximum period
to prision mayor in its minimum period, if the amount of the
fraud is over 12,000 but does not exceed 22,000 pesos, and if
such amount exceeds the latter sum, the penalty provided in
this paragraph shall be imposed in its maximum period, adding
one year for each additional 10,000 pesos; but the total penalty
which may be imposed shall not exceed twenty years. In such
case, and in connection with the accessory penalties which may
be imposed and for the purpose of the other provisions of this
Code, the penalty shall be termed prision mayor or reclusion
temporal, as the case may be.
The penalty prescribed by Article 315 is composed of only two,
not three, periods, in which case, Article 65 of the same Code
requires the division of the time included in the penalty into
three equal portions of time included in the penalty prescribed,
forming one period of each of the three portions. Applying the
latter provisions, the maximum, medium and minimum periods
of the penalty prescribed are:
Maximum - 6 years, 8 months, 21 days to 8 years
Medium - 5 years, 5 months, 11 days to 6 years, 8 months, 20
days
Minimum - 4 years, 2 months, 1 day to 5 years, 5 months, 10
days49
To compute the maximum period of the prescribed penalty,
prisión correccional maximum to prisión mayor minimum
should be divided into three equal portions of time each of
which portion shall be deemed to form one period in
accordance with Article 6550 of the RPC.51 In the present
348
case, the amount involved is ₱98,000.00, which exceeds
₱22,000.00, thus, the maximum penalty imposable should be
within the maximum period of 6 years, 8 months and 21 days
to 8 years of prision mayor. Article 315 also states that a period
of one year shall be added to the penalty for every additional
₱10,000.00 defrauded in excess of ₱22,000.00, but in no case
shall the total penalty which may be imposed exceed 20 years.
Considering that the amount of ₱98,000.00 is ₱76,000.00 more
than the ₱22,000.00 ceiling set by law, then, adding one year
for each additional ₱10,000.00, the maximum period of 6
years, 8 months and 21 days to 8 years of prision mayor
minimum would be increased by 7 years. Taking the maximum
of the prescribed penalty, which is 8 years, plus an additional 7
years, the maximum of the indeterminate penalty is 15 years.
Applying the Indeterminate Sentence Law, since the penalty
prescribed by law for the estafa charge against petitioner is
prision correccional maximum to prision mayor minimum, the
penalty next lower would then be prision correccional in its
minimum and medium periods.
Thus, the minimum term of the indeterminate sentence should
be anywhere from 6 months and 1 day to 4 years and 2 months.
One final note, the Court should give Congress a chance to
perform its primordial duty of lawmaking. The Court should
not pre-empt Congress and usurp its inherent powers of making
and enacting laws. While it may be the most expeditious
approach, a short cut by judicial fiat is a dangerous proposition,
lest the Court dare trespass on prohibited judicial legislation.
WHEREFORE, the Petition for Review on Certiorari dated
November 5, 2007 of petitioner Lito Corpuz is hereby
DENIED. Consequently, the Decision dated March 22, 2007
and Resolution dated September 5, 2007 of the Court of
Appeals, which affirmed with modification the Decision dated
July 30, 2004 of the Regional Trial Court, Branch 46, San
Fernando City, finding petitioner guilty beyond reasonable
doubt of the crime of Estafa under Article 315, paragraph (1),
sub-paragraph (b) of the Revised Penal Code, are hereby
AFFIRMED with MODIFICATION that the penalty imposed
is the indeterminate penalty of imprisonment ranging from
THREE (3) YEARS, TWO (2) MONTHS and ELEVEN
DAYS of prision correccional, as minimum, to FIFTEEN (15)
YEARS of reclusion temporal as maximum.
Pursuant to Article 5 of the Revised Penal Code, let a Copy of
this Decision be furnished the President of the Republic of the
Philippines, through the Department of Justice.
Also, let a copy of this Decision be furnished the President of
the Senate and the Speaker of the House of Representatives.
349

G.R. No. L-63419 December 18, 1986
FLORENTINA A. LOZANO, petitioner,
vs.
THE HONORABLE ANTONIO M. MARTINEZ, in his
capacity as Presiding Judge, Regional Trial Court, National
Capital Judicial Region, Branch XX, Manila, and the
HONORABLE JOSE B. FLAMINIANO, in his capacity as
City Fiscal of Manila, respondents.
G.R. No. L-66839-42 December 18, 1986
LUZVIMINDA F. LOBATON petitioner,
vs.
HONORABLE GLICERIO L. CRUZ, in his capacity as
Presiding Executive Judge, Branch V, Region IV, Regional
Trial Court, sitting at Lemery, Batangas, THE PROVINCIAL
FISCAL OF BATANGAS, and MARIA LUISA
TORDECILLA, respondents.
G.R No. 71654 December 18, 1986
ANTONIO DATUIN and SUSAN DATUIN, petitioners,
vs.
HONORABLE JUDGE ERNANI C. PANO, Regional Trial
Court, Quezon City, Branch LXXXVIII, HONORABLE ClTY
FISCAL OF QUEZON CITY, respondents.
G.R. No. 74524-25 December 18, 1986
OSCAR VIOLAGO, petitioner,
vs.
HONORABLE JUDGE ERNANI C. PAÑ;O Regional Trial
Court, Quezon City, Branch LXXXVIII, HONORABLE CITY
FISCAL OF QUEZON CITY, respondents.
G.R. No. 75122-49 December 18, 1986
ELINOR ABAD, petitioner,
vs.
THE HONORABLE NICOLAS A. GEROCHI, JR., in his
capacity as Presiding Judge, Regional Trial Court, National
Capital Judicial Region, Branch 139, Makati and FEDERICO
L. MELOCOTTON JR., in his capacity as Trial Fiscal
Regional Trial Court, Branch 139, Makati, respondents.
350
G.R No. 75812-13 December 18, 1986
AMABLE R. AGUILUZ VII and SYLVIA V. AGUILUZ,
spouses, petitioners,
vs.
HONORABLE PRESIDING JUDGE OF BRANCH 154, now
vacant but temporarily presided by HONORABLE ASAALI S.
ISNANI Branch 153, Court of First Instance of Pasig, Metro
Manila, respondent.
G.R No. 75765-67 December 18, 1986
LUIS M. HOJAS, petitioner,
vs.
HON. JUDGE SENEN PENARANDA, Presiding Judge,
Regional Trial Court of Cagayan de Oro City, Branch XX,
HONORABLE JUDGE ALFREDO LAGAMON, Presiding
Judge, Regional Trial Court of Cagayan de Oro City, Branch
XXII, HONORABLE CITY FISCAL NOLI T. CATHI, City
Fiscal of Cagayan de Oro City, respondents.
G.R. No. 75789 December 18, 1986
THE PEOPLE OF THE PHILIPPINES, petitioner,
vs.
HON. DAVID G. NITAFAN, Presiding Judge, Regional Trial
Court, National Capital Judicial Region, Branch 52, Manila and
THELMA SARMIENTO, respondents.
R.R. Nogales Law Office for petitioner in G.R. No. 63419,
G.R. Nos. 74524-25, G.R. Nos. 75812-13, G.R. Nos. 75765-67
and counsel for respondent in G.R. No. 75789.
Pio S. Canta for petitioner in G.R. Nos. 66839-42.
Hermogenes Datuin, Jr. for petitioner in G.R. No. 71654.
Abinoja, Tabalingcos, Villalon & Associates for petitioner in
G.R. Nos. 75122-49.
The Solicitor General for respondent in G.R. No. 63419, G.R.
Nos. 66839-42, G.R. No. 71654, G.R. Nos. 74524-25, G.R.
Nos. 75122-49, G.R. Nos. 75812-13, G.R. Nos. 75765-67 and
counsel for petitioner in G.R. No. 75789.
YAP, J.:
The constitutionality of Batas Pambansa Bilang 22 (BP 22 for
short), popularly known as the Bouncing Check Law, which
was approved on April 3, 1979, is the sole issue presented by
these petitions for decision. The question is definitely one of
first impression in our jurisdiction.
These petitions arose from cases involving prosecution of
offenses under the statute. The defendants in those cases
moved seasonably to quash the informations on the ground that
the acts charged did not constitute an offense, the statute being
unconstitutional. The motions were denied by the respondent
trial courts, except in one case, which is the subject of G. R.
No. 75789, wherein the trial court declared the law
unconstitutional and dismissed the case. The parties adversely
affected have come to us for relief.
As a threshold issue the former Solicitor General in his
comment on the petitions, maintained the posture that it was
351
premature for the accused to elevate to this Court the orders
denying their motions to quash, these orders being
interlocutory. While this is correct as a general rule, we have in
justifiable cases intervened to review the lower court's denial of
a motion to quash. 1 In view of the importance of the issue
involved here, there is no doubt in our mind that the instant
petitions should be entertained and the constitutional challenge
to BP 22 resolved promptly, one way or the other, in order to
put to rest the doubts and uncertainty that exist in legal and
judicial circles and the general public which have unnecessarily
caused a delay in the disposition of cases involving the
enforcement of the statute.
For the purpose of resolving the constitutional issue presented
here, we do not find it necessary to delve into the specifics of
the informations involved in the cases which are the subject of
the petitions before us. 2 The language of BP 22 is broad
enough to cover all kinds of checks, whether present dated or
postdated, or whether issued in payment of pre-existing
obligations or given in mutual or simultaneous exchange for
something of value.
I application, the statute provides that such presumption shall not
BP 22 punishes a person "who makes or draws and issues any
check on account or for value, knowing at the time of issue that
he does not have sufficient funds in or credit with the drawee
bank for the payment of said check in full upon presentment,
which check is subsequently dishonored by the drawee bank
for insufficiency of funds or credit or would have been
dishonored for the same reason had not the drawer, without any
valid reason, ordered the bank to stop payment." The penalty
prescribed for the offense is imprisonment of not less than 30
days nor more than one year or a fine or not less than the
amount of the check nor more than double said amount, but in
no case to exceed P200,000.00, or both such fine and
imprisonment at the discretion of the court. 3
The statute likewise imposes the same penalty on "any person
who, having sufficient funds in or credit with the drawee bank
when he makes or draws and issues a check, shall fail to keep
sufficient funds or to maintain a credit to cover the full amount
of the check if presented within a period of ninety (90) days
from the date appearing thereon, for which reason it is
dishonored by the drawee bank. 4
An essential element of the offense is "knowledge" on the part
of the maker or drawer of the check of the insufficiency of his
funds in or credit with the bank to cover the check upon its
presentment. Since this involves a state of mind difficult to
establish, the statute itself creates a prima facie presumption of
such knowledge where payment of the check "is refused by the
drawee because of insufficient funds in or credit with such
bank when presented within ninety (90) days from the date of
the check. 5 To mitigate the harshness of the law in its
arise if within five (5) banking days from receipt of the notice
of dishonor, the maker or drawer makes arrangements for
payment of the check by the bank or pays the holder the
amount of the check.
Another provision of the statute, also in the nature of a rule of
evidence, provides that the introduction in evidence of the
unpaid and dishonored check with the drawee bank's refusal to
pay "stamped or written thereon or attached thereto, giving the
reason therefor, "shall constitute prima facie proof of "the
352
making or issuance of said check, and the due presentment to
the drawee for payment and the dishonor thereof ... for the
reason written, stamped or attached by the drawee on such
dishonored check." 6
The presumptions being merely prima facie, it is open to the
accused of course to present proof to the contrary to overcome
the said presumptions.
II
BP 22 is aimed at putting a stop to or curbing the practice of
issuing checks that are worthless, i.e. checks that end up being
rejected or dishonored for payment. The practice, as discussed
later, is proscribed by the state because of the injury it causes to
t public interests.
Before the enactment of BP 22, provisions already existed in
our statute books which penalize the issuance of bouncing or
rubber checks. Criminal law has dealth with the problem within
the context of crimes against property punished as "estafa" or
crimes involving fraud and deceit. The focus of these penal
provisions is on the damage caused to the property rights of the
victim.
The Penal Code of Spain, which was in force in the Philippines
from 1887 until it was replaced by the Revised Penal Code in
1932, contained provisions penalizing, among others, the act of
defrauding another through false pretenses. Art. 335 punished a
person who defrauded another "by falsely pretending to possess
any power, influence, qualification, property, credit, agency or
business, or by means of similar deceit." Although no explicit
mention was made therein regarding checks, this provision was
deemed to cover within its ambit the issuance of worthless or
bogus checks in exchange for money. 7
In 1926, an amendment was introduced by the Philippine
Legislature, which added a new clause (paragraph 10) to
Article 335 of the old Penal Code, this time referring in explicit
terms to the issuance of worthless checks. The amendment
penalized any person who 1) issues a check in payment of a
debt or for other valuable consideration, knowing at the time of
its issuance that he does not have sufficient funds in the bank to
cover its amount, or 2) maliciously signs the check differently
from his authentic signature as registered at the bank in order
that the latter would refuse to honor it; or 3) issues a postdated
check and, at the date set for its payment, does not have
sufficient deposit to cover the same.8
In 1932, as already adverted to, the old Penal Code was
superseded by the Revised Penal Code. 9 The above
provisions, in amended form, were incorporated in Article 315
of the Revised Penal Code defining the crime of estafa. The
revised text of the provision read as follows:
Art. 315. Swindling (estafa).—Any person who shall defraud
another by any of the means mentioned hereinbelow shall be
punished by:
xxx xxx xxx
2. By means of any of the following false pretenses or
fraudulent acts executed prior to or simultaneously with the
commis sion of the fraud:
353
(a) By using fictitious name, or falsely pretending to
possess power, influence, qualifications, property, credit,
agency, business or imaginary transactions, or by means of
other similar deceits;
xxx xxx xxx
(d) By postdating a check, or issuing a check in payment of
an obligation the offender knowing that at the time he had no
funds in the bank, or the funds deposited by him were not
sufficient to cover the amount of the cheek without informing
the payee of such circumstances.
The scope of paragraph 2 (d), however, was deemed to exclude
checks issued in payment of pre-existing obligations. 10 The
rationale of this interpretation is that in estafa, the deceit
causing the defraudation must be prior to or simultaneous with
the commission of the fraud. In issuing a check as payment for
a pre-existing debt, the drawer does not derive any material
benefit in return or as consideration for its issuance. On the part
of the payee, he had already parted with his money or property
before the check is issued to him hence, he is not defrauded by
means of any "prior" or "simultaneous" deceit perpetrated on
him by the drawer of the check.
With the intention of remedying the situation and solving the
problem of how to bring checks issued in payment of pre-
existing debts within the ambit of Art. 315, an amendment was
introduced by the Congress of the Philippines in 1967, 11
which was enacted into law as Republic Act No. 4885, revising
the aforesaid proviso to read as follows:
(d) By postdating a check, or issuing a check in payment of
an obligation when the offender had no funds in the bank, or
his funds deposited therein were not sufficient to cover the
amount of the check. The failure of the drawer of the check to
deposit the amount necessary to cover his check within three
(3) days from receipt of notice from the bank and/or the payee
or holder that said check has been dishonored for lack or
insufficiency of funds shall be puma facie evidence of deceit
constituting false pretense or fraudulent act.
However, the adoption of the amendment did not alter the
situation materially. A divided Court held in People vs. Sabio,
Jr. 12 that Article 315, as amended by Republic Act 4885, does
not cover checks issued in payment of pre-existing obligations,
again relying on the concept underlying the crime of estafa
through false pretenses or deceit—which is, that the deceit or
false pretense must be prior to or simultaneous with the
commission of the fraud.
Since statistically it had been shown that the greater bulk of
dishonored checks consisted of those issued in payment of pre-
existing debts, 13 the amended provision evidently failed to
cope with the real problem and to deal effectively with the evil
that it was intended to eliminate or minimize.
With the foregoing factual and legal antecedents as a backdrop,
the then Interim Batasan confronted the problem squarely. It
opted to take a bold step and decided to enact a law dealing
with the problem of bouncing or worthless checks, without
attaching the law's umbilical cord to the existing penal
provisions on estafa. BP 22 addresses the problem directly and
frontally and makes the act of issuing a worthless check malum
prohibitum. 14
354

The question now arises: Is B P 22 a valid law?
Previous efforts to deal with the problem of bouncing checks
within the ambit of the law on estafa did not evoke any
constitutional challenge. In contrast, BP 22 was challenged
promptly.
Those who question the constitutionality of BP 22 insist that:
(1) it offends the constitutional provision forbidding
imprisonment for debt; (2) it impairs freedom of contract; (3) it
contravenes the equal protection clause; (4) it unduly delegates
legislative and executive powers; and (5) its enactment is
flawed in that during its passage the Interim Batasan violated
the constitutional provision prohibiting amendments to a bill on
Third Reading.
The constitutional challenge to BP 22 posed by petitioners
deserves a searching and thorough scrutiny and the most
deliberate consideration by the Court, involving as it does the
exercise of what has been described as "the highest and most
delicate function which belongs to the judicial department of
the government." 15
As we enter upon the task of passing on the validity of an act of
a co-equal and coordinate branch of the government, we need
not be reminded of the time-honored principle, deeply
ingrained in our jurisprudence, that a statute is presumed to be
valid. Every presumption must be indulged in favor of its
constitutionality. This is not to say that we approach our task
with diffidence or timidity. Where it is clear that the legislature
has overstepped the limits of its authority under the constitution
we should not hesitate to wield the axe and let it fall heavily, as
fall it must, on the offending statute.
III
Among the constitutional objections raised against BP 22, the
most serious is the alleged conflict between the statute and the
constitutional provision forbidding imprisonment for debt. It is
contended that the statute runs counter to the inhibition in the
Bill of Rights which states, "No person shall be imprisoned for
debt or non-payment of a poll tax." 16 Petitioners insist that,
since the offense under BP 22 is consummated only upon the
dishonor or non-payment of the check when it is presented to
the drawee bank, the statute is really a "bad debt law" rather
than a "bad check law." What it punishes is the non-payment of
the check, not the act of issuing it. The statute, it is claimed, is
nothing more than a veiled device to coerce payment of a debt
under the threat of penal sanction.
First of all it is essential to grasp the essence and scope of the
constitutional inhibition invoked by petitioners. Viewed in its
historical context, the constitutional prohibition against
imprisonment for debt is a safeguard that evolved gradually
during the early part of the nineteenth century in the various
states of the American Union as a result of the people's
revulsion at the cruel and inhumane practice, sanctioned by
common law, which permitted creditors to cause the
incarceration of debtors who could not pay their debts. At
common law, money judgments arising from actions for the
recovery of a debt or for damages from breach of a contract
could be enforced against the person or body of the debtor by
writ of capias ad satisfaciendum. By means of this writ, a
debtor could be seized and imprisoned at the instance of the
355
creditor until he makes the satisfaction awarded. As a
consequence of the popular ground swell against such a
barbarous practice, provisions forbidding imprisonment for
debt came to be generally enshrined in the constitutions of
various states of the Union. 17
This humanitarian provision was transported to our shores by
the Americans at the turn of t0he century and embodied in our
organic laws. 18 Later, our fundamental law outlawed not only
imprisonment for debt, but also the infamous practice, native to
our shore, of throwing people in jail for non-payment of the
cedula or poll tax. 19
The reach and scope of this constitutional safeguard have been
the subject of judicial definition, both by our Supreme Court 20
and by American State courts.21 Mr. Justice Malcolm speaking
for the Supreme Court in Ganaway vs. Queen, 22 stated: "The
'debt' intended to be covered by the constitutional guaranty has
a well-defined meaning. Organic provisions relieving from
imprisonment for debt, were intended to prevent commitment
of debtors to prison for liabilities arising from actions ex
contractu The inhibition was never meant to include damages
arising in actions ex delicto, for the reason that damages
recoverable therein do not arise from any contract entered into
between the parties but are imposed upon the defendant for the
wrong he has done and are considered as punishment, nor to
fines and penalties imposed by the courts in criminal
proceedings as punishments for crime."
The law involved in Ganaway was not a criminal statute but the
Code of Procedure in Civil Actions (1909) which authorized
the arrest of the defendant in a civil case on grounds akin to
those which justify the issuance of a writ of attachment under
our present Rules of Court, such as imminent departure of the
defendant from the Philippines with intent to defraud his
creditors, or concealment, removal or disposition of properties
in fraud of creditors, etc. The Court, in that case, declared the
detention of the defendant unlawful, being violative of the
constitutional inhibition against imprisonment for debt, and
ordered his release. The Court, however, refrained from
declaring the statutory provision in question unconstitutional.
Closer to the case at bar is People v. Vera Reyes,23 wherein a
statutory provision which made illegal and punishable the
refusal of an employer to pay, when he can do so, the salaries
of his employees or laborers on the fifteenth or last day of
every month or on Saturday every week, was challenged for
being violative of the constitutional prohibition against
imprisonment for debt. The constitutionality of the law in
question was upheld by the Court, it being within the authority
of the legislature to enact such a law in the exercise of the
police power. It was held that "one of the purposes of the law is
to suppress possible abuses on the part of the employers who
hire laborers or employees without paying them the salaries
agreed upon for their services, thus causing them financial
difficulties. "The law was viewed not as a measure to coerce
payment of an obligation, although obviously such could be its
effect, but to banish a practice considered harmful to public
welfare.
IV
Has BP 22 transgressed the constitutional inhibition against
imprisonment for debt? To answer the question, it is necessary
to examine what the statute prohibits and punishes as an
offense. Is it the failure of the maker of the check to pay a
356
debt? Or is it the making and issuance of a worthless check in
payment of a debt? What is the gravamen of the offense? This
question lies at the heart of the issue before us.
The gravamen of the offense punished by BP 22 is the act of
making and issuing a worthless check or a check that is
dishonored upon its presentation for payment. It is not the non-
payment of an obligation which the law punishes. The law is
not intended or designed to coerce a debtor to pay his debt. The
thrust of the law is to prohibit, under pain of penal sanctions,
the making of worthless checks and putting them in circulation.
Because of its deleterious effects on the public interest, the
practice is proscribed by the law. The law punishes the act not
as an offense against property, but an offense against public
order.
Admittedly, the distinction may seem at first blush to appear
elusive and difficult to conceptualize. But precisely in the
failure to perceive the vital distinction lies the error of those
who challenge the validity of BP 22.
It may be constitutionally impermissible for the legislature to
penalize a person for non-payment of a debt ex contractu But
certainly it is within the prerogative of the lawmaking body to
proscribe certain acts deemed pernicious and inimical to public
welfare. Acts mala in se are not the only acts which the law can
punish. An act may not be considered by society as inherently
wrong, hence, not malum in se but because of the harm that it
inflicts on the community, it can be outlawed and criminally
punished as malum prohibitum. The state can do this in the
exercise of its police power.
The police power of the state has been described as "the most
essential, insistent and illimitable of powers" which enables it
to prohibit all things hurtful to the comfort, safety and welfare
of society. 24 It is a power not emanating from or conferred by
the constitution, but inherent in the state, plenary, "suitably
vague and far from precisely defined, rooted in the conception
that man in organizing the state and imposing upon the
government limitations to safeguard constitutional rights did
not intend thereby to enable individual citizens or group of
citizens to obstruct unreasonably the enactment of such
salutary measures to ensure communal peace, safety, good
order and welfare." 25
The enactment of BP 22 is a declaration by the legislature that,
as a matter of public policy, the making and issuance of a
worthless check is deemed public nuisance to be abated by the
imposition of penal sanctions.
It is not for us to question the wisdom or impolicy of the
statute. It is sufficient that a reasonable nexus exists between
means and end. Considering the factual and legal antecedents
that led to the adoption of the statute, it is not difficult to
understand the public concern which prompted its enactment. It
had been reported that the approximate value of bouncing
checks per day was close to 200 million pesos, and thereafter
when overdrafts were banned by the Central Bank, it averaged
between 50 minion to 80 million pesos a day. 26
By definition, a check is a bill of exchange drawn on a bank
and payable on demand. 27 It is a written order on a bank,
purporting to be drawn against a deposit of funds for the
payment of all events, of a sum of money to a certain person
therein named or to his order or to cash and payable on
357
demand. 28 Unlike a promissory note, a check is not a mere
undertaking to pay an amount of money. It is an order
addressed to a bank and partakes of a representation that the
drawer has funds on deposit against which the check is drawn,
sufficient to ensure payment upon its presentation to the bank.
There is therefore an element of certainty or assurance that the
instrument wig be paid upon presentation. For this reason,
checks have become widely accepted as a medium of payment
in trade and commerce. Although not legal tender, checks have
come to be perceived as convenient substitutes for currency in
commercial and financial transactions. The basis or foundation
of such perception is confidence. If such confidence is shakes
the usefulness of checks as currency substitutes would be
greatly diminished or may become nit Any practice therefore
tending to destroy that confidence should be deterred for the
proliferation of worthless checks can only create havoc in trade
circles and the banking community.
Recent statistics of the Central Bank show that one-third of the
entire money supply of the country, roughly totalling P32.3
billion, consists of peso demand deposits; the remaining two.
29 These de deposit thirds consists of currency in circulation.
ma deposits in the banks constitute the funds against which
among others, commercial papers like checks, are drawn. The
magnitude of the amount involved amply justifies the
legitimate concern of the state in preserving the integrity of the
banking system. Flooding the system with worthless checks is
like pouring garbage into the bloodstream of the nation's
economy.
The effects of the issuance of a worthless check transcends the
private interests of the parties directly involved in the
transaction and touches the interests of the community at large.
The mischief it creates is not only a wrong to the payee or
holder, but also an injury to the public. The harmful practice of
putting valueless commercial papers in circulation, multiplied a
thousand fold, can very wen pollute the channels of trade and
commerce, injure the banking system and eventually hurt the
welfare of society and the public interest. As aptly stated — 30
The 'check flasher' does a great deal more than contract a debt;
he shakes the pillars of business; and to my mind, it is a
mistaken charity of judgment to place him in the same category
with the honest man who is unable to pay his debts, and for
whom the constitutional inhibition against' imprisonment for
debt, except in cases of fraud was intended as a shield and not a
sword.
In sum, we find the enactment of BP 22 a valid exercise of the
police power and is not repugnant to the constitutional
inhibition against imprisonment for debt.
This Court is not unaware of the conflicting jurisprudence
obtaining in the various states of the United States on the
constitutionality of the "worthless check" acts. 31 It is needless
to warn that foreign jurisprudence must be taken with abundant
caution. A caveat to be observed is that substantial differences
exist between our statute and the worthless check acts of those
states where the jurisprudence have evolved. One thing to
remember is that BP 22 was not lifted bodily from any existing
statute. Furthermore, we have to consider that judicial
decisions must be read in the context of the facts and the law
involved and, in a broader sense, of the social economic and
political environment—in short, the milieu—under which they
were made. We recognize the wisdom of the old saying that
what is sauce for the goose may not be sauce for the gander.
358

As stated elsewhere, police power is a dynamic force that
enables the state to meet the exigencies of changing times.
There are occasions when the police power of the state may
even override a constitutional guaranty. For example, there
have been cases wherein we held that the constitutional
provision on non-impairment of contracts must yield to the
police power of the state. 32 Whether the police power may
override the constitutional inhibition against imprisonment for
debt is an issue we do not have to address. This bridge has not
been reached, so there is no occasion to cross it.
We hold that BP 22 does not conflict with the constitutional
inhibition against imprisonment for debt.
V It is also suggested that BP 22 constitutes undue or improper
We need not detain ourselves lengthily in the examination of
the other constitutional objections raised by petitioners, some
of which are rather flimsy.
We find no valid ground to sustain the contention that BP 22
impairs freedom of contract. The freedom of contract which is
constitutionally protected is freedom to enter into "lawful"
contracts. Contracts which contravene public policy are not
lawful. 33 Besides, we must bear in mind that checks can not
be categorized as mere contracts. It is a commercial instrument
which, in this modem day and age, has become a convenient
substitute for money; it forms part of the banking system and
therefore not entirely free from the regulatory power of the
state.
Neither do we find substance in the claim that the statute in
question denies equal protection of the laws or is
discriminatory, since it penalizes the drawer of the check, but
not the payee. It is contended that the payee is just as
responsible for the crime as the drawer of the check, since
without the indispensable participation of the payee by his
acceptance of the check there would be no crime. This
argument is tantamount to saying that, to give equal protection,
the law should punish both the swindler and the swindled. The
petitioners' posture ignores the well-accepted meaning of the
clause "equal protection of the laws." The clause does not
preclude classification of individuals, who may be accorded
different treatment under the law as long as the classification is
no unreasonable or arbitrary. 34
delegation of legislative powers, on the theory that the offense
is not completed by the sole act of the maker or drawer but is
made to depend on the will of the payee. If the payee does not
present the check to the bank for payment but instead keeps it,
there would be no crime. The logic of the argument stretches to
absurdity the meaning of "delegation of legislative power."
What cannot be delegated is the power to legislate, or the
power to make laws. 35 which means, as applied to the present
case, the power to define the offense sought to be punished and
to prescribe the penalty. By no stretch of logic or imagination
can it be said that the power to define the crime and prescribe
the penalty therefor has been in any manner delegated to the
payee. Neither is there any provision in the statute that can be
construed, no matter how remotely, as undue delegation of
executive power. The suggestion that the statute unlawfully
delegates its enforcement to the offended party is farfetched.
359
Lastly, the objection has been raised that Section 9 (2) of petitioners' claim that in the enactment of BP 22 the provisions
Article VII of the 1973 Constitution was violated by the of Section 9 (2) of Article VIII of the 1973 Constitution were
legislative body when it enacted BP 22 into law. This violated.
constitutional provision prohibits the introduction of
amendments to a bill during the Third Reading. It is claimed WHEREFORE, judgment is rendered granting the petition in
that during its Third Reading, the bill which eventually became G.R. No. 75789 and setting aside the order of the respondent
BP 22 was amended in that the text of the second paragraph of Judge dated August 19, 1986. The petitions in G.R. Nos.
Section 1 of the bill as adopted on Second Reading was altered 63419, 66839-42, 71654, 74524-25, 75122-49, 75812-13 and
or changed in the printed text of the bill submitted for approval 75765-67 are hereby dismissed and the temporary restraining
on Third Reading. order issued in G.R. Nos. 74524-25 is lifted. With costs against
private petitioners.
A careful review of the record of the proceedings of the Interim
Batasan on this matter shows that, indeed, there was some
confusion among Batasan Members on what was the exact text
of the paragraph in question which the body approved on
Second Reading. 36 Part of the confusion was due apparently
to the fact that during the deliberations on Second Reading (the
amendment period), amendments were proposed orally and
approved by the body or accepted by the sponsor, hence, some
members might not have gotten the complete text of the
provisions of the bill as amended and approved on Second
Reading. However, it is clear from the records that the text of
the second paragraph of Section 1 of BP 22 is the text which
was actually approved by the body on Second Reading on
February 7, 1979, as reflected in the approved Minutes for that
day. In any event, before the bin was submitted for final
approval on Third Reading, the Interim Batasan created a
Special Committee to investigate the matter, and the
Committee in its report, which was approved by the entire body
on March 22, 1979, stated that "the clause in question was ... an
authorized amendment of the bill and the printed copy thereof
reflects accurately the provision in question as approved on
Second Reading. 37 We therefore, find no merit in the

360
 This is an appeal by the prosecution from a decision of
acquittal.

On February 1, 1965, Aurelio Balisacan was charged with

homicide in the Court of First Instance of Ilocos Norte. The
information alleged:

That on or about December 3, 1964, in the Municipality of

Nueva Era, province of Ilocos Norte, Philippines, and within
the jurisdiction of this Honorable Court, the herein accused,
with intent to kill, did then and there willfully, unlawfully and
feloniously attack, assault and stab one, Leonicio Bulaoat,
inflicting upon the latter wounds that immediately caused his
death.

CONTRARY TO LAW.

To this charge the accused, upon being arraigned, entered a

plea of guilty. In doing so, he was assisted by counsel. At his
G.R. No. L-26376 August 31, 1966 de oficio counsel's petition, however, he was allowed to present
evidence to prove mitigating circumstances. Thereupon the
THE PEOPLE OF THE PHILIPPINES, plaintiff and appellant, accused testified to the effect that he stabbed the deceased in
vs. self-defense because the latter was strangling him. And he
AURELIO BALISACAN, defendant and appellee. further stated that after the incident he surrendered himself
voluntarily to the police authorities.
Office of the Solicitor General Arturo A. Alafriz, Assistant
Solicitor General I. C. Borromeo and T. M. Dilig for plaintiff Subsequently, on March 6, 1965, on the basis of the above-
and appellant. mentioned testimony of the accused, the court a quo rendered a
Rolando de la Cuesta for defendant and appellee. decision acquitting the accused. As stated, the prosecution
appealed therefrom.
BENGZON, J.P., J.:
This appeal was first taken to the Court of Appeals. Appellant
filed its brief on September 9, 1965. No appellee's brief was

361
filed. After being submitted for decision without appellee's
brief, the appeal was certified to Us by the Court of Appeals on
July 14, 1966, as involving questions purely of law (Sec. 17,
Republic Act 296). And on August 5, 1966, We ordered it
docketed herein.1äwphï1.ñët
The sole assignment of error is:
THE TRIAL COURT ERRED IN ACQUITTING THE
ACCUSED OF THE OFFENSE CHARGED DESPITE THE
LATTER'S PLEA OF GUILTY WHEN ARRAIGNED.
Appellant's contention is meritorious. A plea of guilty is an
unconditional admission of guilt with respect to the offense
charged. It forecloses the right to defend oneself from said
charge and leaves the court with no alternative but to impose
the penalty fixed by law under the circumstances. (People v.
Ng Pek, 81 Phil. 563). In this case, the defendant was only
allowed to testify in order to establish mitigating
circumstances, for the purposes of fixing the penalty. Said
testimony, therefore, could not be taken as a trial on the merits,
to determine the guilt or innocence of the accused.
In view of the assertion of self-defense in the testimony of the
accused, the proper course should have been for the court a quo
to take defendant's plea anew and then proceed with the trial of
the case, in the order set forth in Section 3 of Rule 119 of the
Rules of Court:
SEC. 3. Order of trial. — The plea of not guilty having been
entered, the trial must proceed in the following order:
(a) The fiscal, on behalf of the People of the Philippines, must
offer evidence in support of the charges.
(b) The defendant or his attorney may offer evidence in support
of the defense.
(c) The parties may then respectively offer rebutting evidence
only, unless the court, in furtherance of justice, permit them to
offer new additional evidence bearing upon the main issue in
question.
(d) When the introduction of evidence shall have been
concluded, unless the case is submitted to the court without
argument, the fiscal must open the argument, the attorney for
the defense must follow, and the fiscal may conclude the same.
The argument by either attorney may be oral or written, or
partly written, but only the written arguments, or such portions
of the same as may be in writing, shall be preserved in the
record of the case.
In deciding the case upon the merits without the requisite trial,
the court a quo not only erred in procedure but deprived the
prosecution of its day in court and right to be heard.
This Court now turns to Section 2, Rule 122 of the Rules of
Court, which provides that: "The People of the Philippines can
not appeal if the defendant would be placed thereby in double
jeopardy." The present state of jurisprudence in this regard is
that the above provision applies even if the accused fails to file
a brief and raise the question of double jeopardy (People v.
Ferrer, L-9072, October 23, 1956; People v. Bao, L-12102,
September 29, 1959; People v. De Golez, L-14160, June 30,
1960).
362

The next issue, therefore, is whether this appeal placed the
accused in double jeopardy. It is settled that the existence of a
plea is an essential requisite to double jeopardy (People v.
Ylagan, 58 Phil. 851; People v. Quimsing, L-19860, December
23, 1964). In the present case, it is true, the accused had first
entered a plea of guilty. Subsequently, however, he testified, in
the course of being allowed to prove mitigating circumstances,
that he acted in complete self-defense. Said testimony,
therefore — as the court a quo recognized in its decision —
had the effect of vacating his plea of guilty and the court a quo
should have required him to plead a new on the charge, or at
least direct that a new plea of not guilty be entered for him.
This was not done. It follows that in effect there having been
no standing plea at the time the court a quo rendered its
judgment of acquittal, there can be no double jeopardy with
respect to the appeal herein.1
remand this case to the court a quo for further proceedings
under another judge of the same court, in one of the two other
branches of the Court of First Instance of Ilocos Norte sitting at
Laoag.
Wherefore, the judgment appealed from is hereby set aside and
this case is remanded to the court a quo for further proceedings
under another judge of said court, that is, for plea by the
defendant, trial with presentation of evidence for the
prosecution and the defense, and judgment thereafter, No costs.
So ordered.
Concepcion, C.J., Reyes, J.B.L., Barrera, Dizon, Zaldivar,
Sanchez and Castro, JJ., concur.
Regala and Makalintal, JJ., took no part.

Furthermore, as afore-stated, the court a quo decided the case

upon the merits without giving the prosecution any opportunity
to present its evidence or even to rebut the testimony of the
defendant. In doing so, it clearly acted without due process of
law. And for lack of this fundamental prerequisite, its action is
perforce null and void. The acquittal, therefore, being a nullity
for want of due process, is no acquittal at all, and thus can not
constitute a proper basis for a claim of former jeopardy (People
v. Cabero, 61 Phil. 121; 21 Am. Jur. 2d. 235; McCleary v.
Hudspeth 124 Fed. 2d. 445).

It should be noted that in rendering the judgment of acquittal,

the trial judge below already gave credence to the testimony of
the accused. In fairness to the prosecution, without in any way
doubting the integrity of said trial judge, We deem it proper to

363

G.R. No. 44205 February 16, 1993
PEOPLE OF THE PHILIPPINES, petitioner,
vs.
HON. GREGORIO G. PINEDA, Branch XXI, Court of First
Instance of Rizal, and CONSOLACION NAVAL, respondents.
The Solicitor General for petitioner.
Salonga. Ordoñez, Yap & Associates for private respondent.
MELO, J.:
When Consolacion Naval, the herein private respondent, was
separately accused of having committed the crime of estafa in
Criminal Case No. 15795 before Branch 19, and of falsification
in Criminal Case No. 15796 before Branch 21, both of the then
Court of First Instance of Rizal of the Seventh Judicial District
stationed at Pasig, Rizal, she sought the quashal of the latter
charge on the supposition that she is in danger of being
convicted for the same felony (p. 16, Record). Her first attempt
in this respect did not spell success
(p. 34, Record) but the Honorable Gregorio G. Pineda,
Presiding Judge of Branch 21 was persuaded to the contrary
thereafter on the belief that the alleged falsification was a
necessary means of committing estafa (p. 149, Record). It is
this perception, along with the denial of the motion for re-
evaluation therefrom (p. 66, Record) which the People impugns
via the special civil action for certiorari now before Us.
The indictment for estafa against Consolacion Naval and her
co-accused Anacleto Santos, reads:
That on or about March 23, 1973 and soon thereafter, in the
municipality of Pasig, province of Rizal, Philippines and within
the jurisdiction of this Honorable Court, the above-named
accused, conspiring and confederating together and mutually
helping and aiding one another, by means of deceit and with
intent to defraud, knowing that their parcel of land among
others, situated in Malaking Bundok, Barrio Dolores, Taytay,
Rizal, and more particularly described as follows, to wit:
OJA No. 5851
364
Isang lagay na lupa (bulubundukin) na nasa lugar ng Malaking
Bundok, Bo. Dolores, Taytay, Rizal, na may lawak na 14,615.5
metrong parisukat na may tasang P580.00 at may hanggahang
gaya ng sumusunod: Hilagaan-Hermogenes Naval (now part of
Rev. Tax Dec. 9284; Silanganan-Nicolas del Rosario (now
Jaime del Rosario); Timugan-Eduvigis, Consolacion,
Apolinaria, Naval; Kanluran-Creek (sapang bato)
was already sold and encumbered to one Edilberto V. Ilano as
can be gleaned from a document entitled "Kasulatan ng Bilihan
Ng Lupa Na May Pasubali O Condicion" sometime on August
12, 1969; and the latter having paid the partial amount of
P130,850.00 to the herein accused and without informing said
Edilberto V. Ilano, the herein accused Consolacion Naval
executed and filed an Application for Registration over the
same parcel of land among others, which document is
designated as LRC Case No. N-7485, "Consolacion, Eduvigis
and Apolinaria, all surnamed Naval" of the Court of First
Instance of Rizal, Pasig, Rizal, as a result of which the
Presiding Judge of Branch XIII to which said case was
assigned issued Original Certificate of Title No. 9332 in her
name, which area was reduced to 10,075 sq. meters as
appearing in item No. 2 in said OCT and subsequently referred
to in TCT No. 370870 in favor of said accused Naval through
Rodolfo Mendoza, sold more than one-half (1/2) of said parcel
of land in her name in favor of Maria, Anacleto, Carmelo,
Mariano, Cecilia and Teodorica, all surnamed Santos and
Iluminada Tambalo, Pacita Alvarez and Pedro Valesteros
which sales were registered and annotated with the Register of
Deeds of Rizal at Pasig, Rizal; and likewise a portion of which
was partitioned to herein accused Anacleto Santos; that despite
repeated demands the accused refused and still refuse to return
said amount and/or fulfill their obligations under said
"Kasulatan Ng Bilihan Ng Lupa Na May Pasubali O
Condicion", to the damage and prejudice of said Edilberto V.
Ilano in the aforementioned amount of P130,850.00. (pp. 44-
45, Rollo)
while the charge for falsification narrates:
That on or about the 17th day August, 1971, in the municipality
of Pasig, province of Rizal, Philippines and within the
jurisdiction of this Honorable Court, the above-named accused,
being then private individual did then and there wilfully,
unlawfully and feloniously falsify a public document by
making untruthful statements in a narration of facts, committed
as follows: the said accused on August 17, 1971, executed a
document entitled "Application For Registration" for parcels of
land located at Taytay, Rizal, to the effect that "She is the
exclusive owner in fee simple of a parcel of land situated in
Malaking Bundok, Barrio Dolores, Taytay, Rizal with Psu-
248206 and that she "does not know any mortgage or
encumbrance of any kind whatsoever affecting said land or that
any person has estate or interest therein, legal or equitable, in
possession remainder, reversion or expectancy", as a result of
which the Court in its Decision of March 22, 1972 declared the
herein accused the true and absolute owner of said parcel of
land free from all liens and encumbrances of any nature, when
in truth and in fact the herein accused has already sold and
encumbered to one Edilberto V. Ilano said parcel of land
referred to above as can be gleaned from a document entitled
"Kasulatan Ng Bilihan Ng Lupa Na May Pasubali O
Condicion" dated August 12, 1969 and said Edilberto V. Ilano
has already paid partial amount of P130,850.00 to the herein
accused.
365
Contrary to law. (p. 2, Rollo)
The confluence of the foregoing assertions disclose that
Consolacion Naval sold the subject realty on August 12, 1969
to Edilberto Ilano who made a partial payment of P130,850.00.
About two years later, or on August 17, 1971, an application
for registration under the Land Registration Act was submitted
by Consolacion wherein she stated that she owned the same lot
and that it was unencumbered. For those reasons, the
corresponding title was issued in her name but she allegedly
disposed of the half portion of the property to nine other
persons.
These antecedents spawned the simultaneous institution of the
charges on September 17, 1975.
On October 28, 1975, private respondent Consolacion Naval
moved to quash the information for falsification, premised,
among other things, on the apprehension that she is in danger
of being condemned for an identical offense. The following
day, Naval pleaded not guilty to the charge levelled against her
for falsification (p. 22, Record) and on December 22, 1975, the
court a quo denied her motion to quash (p. 34, Record).
As earlier intimated, the magistrate below thereafter
reconsidered his order of denial which gave rise to the
corresponding unsuccessful bid by the People for reinstatement
of the information for falsification.
Hence the instant petition, which practically reiterates the same
disqualification put forward in the proceedings below (p. 7,
Petition; p. 47, Rollo).
The issue of whether the court below correctly quashed the
information for falsification must be answered in the negative
for the following reasons:
1. Assuming in gratia argumenti that falsification was
indeed necessary to commit estafa, which ordinarily constitutes
a complex crime under Article 48 of the Revised Penal Code
and thus susceptible to challenge via a motion to quash under
Section 2 (e), Rule 117 vis-a-vis Section 12, Rule 110 (Moran,
Rules of Court, Vol. 4, 1980 Ed., p. 42; 230), still, it was
serious error on the part of the magistrate below to have
appreciated this discourse in favor of private respondent since
this matter was not specifically raised in the motion to quash
filed on October 28, 1975 (p. 16, Record). It was only in the
motion for reconsideration where private respondent pleaded
this additional ground after her motion to quash was denied (p.
39, Record). The legal proscription against entertaining another
saving clause to abate the charge for falsification is very
explicit under Section 3, Rule 117 of the Revised Rules of
Court:
Sec. 3. Motion to quash — Form and contents — Failure to
state objection — Entry of record — Failure to record. — The
motion to quash shall be in writing signed by the defendant or
his attorney. It shall specify distinctly the ground of objection
relied on and the court shall hear no objection other than that
stated in the motion. It shall be entered of record but a failure
to so enter it shall not affect the validity of any proceeding in
the case.
It must be observed that the denial of the motion to quash was
re-examined not in the light of "res judicata dressed in prison
grey" but on the aspect of whether falsification was supposedly
366
perpetrated to commit estafa. The course of action pursued by
the trial court in this context may not even be justified under
Section 10 of Rule 117 which says that:
Sec. 10. Failure to move to quash — Effect of —
Exceptions. — If the defendant does not move to quash the
complaint or information before he pleads thereto he shall be
taken to have waived all objections which are grounds for a
motion to quash except when the complaint or information
does not charge an offense, or the court is without jurisdiction
of the same. If, however, the defendant learns after he has
pleaded or has moved to guash on some other ground that the
offense for which he is now charged is an offense for which he
has been pardoned, or of which he has been convicted or
acquitted or been in jeopardy, the court may in its discretion
entertain at any time before judgment a motion to quash on the
ground of such pardon, conviction, acquittal or jeopardy.
for the simple reason that the theory of a single crime advanced
by private respondent in her belated, nay, "second" motion to
quash couched as motion for reconsideration is not
synonymous with "pardon, conviction, acquittal or jeopardy".
In effect, therefore, respondent judge accommodated another
basis for the quashal of the information albeit the same was not
so stated in the motion therefor. This should not have been
tolerated because it is anathema to the foregoing proviso
(Moran, supra, at p. 283, citing Suy Sui vs. People, 49 O.G.
967). This caveat is now amplified in Section 8 of Rule 117 as
amended, thus:
Sec. 8. Failure to move to quash or to allege any ground
therefor. — The failure of the accused to assert any ground of a
motion to quash before he pleads to the complaint or
information, either because he did not file a motion to quash or
failed to allege the same in said motion shall be deemed a
waiver of the grounds of a motion to quash, except the grounds
of no offense charged, lack of jurisdiction over the offense
charged, extinction of the offense or penalty and jeopardy, as
provided for in paragraphs (a), (b), (f) and (h) of Section 3 of
this Rule.
At any rate, it is virtually unacceptable to suppose that private
respondent concocted the sinister scheme of falsification in
1971 precisely to facilitate the commission of estafa in 1973
such that both crimes emanated from a single criminal impulse.
Otherwise, an unfounded verisimilitude of this nature will run
afoul with what this Court already observed in People vs. Penas
(68 Phil. 533 [1939]; 1 Aquino, Revised Penal Code, 1976 Ed.,
p. 574) to the effect that the eleven estafas through falsification
which the same accused therein committed between November
24, 1936 and January 3, 1937 including the falsification which
he committed on January 8, 1937 were considered distinct
offenses, not one complex crime, because they were committed
on different dates, not to mention the discrepancy in places
where they were accomplished.
In the same breath, it necessarily follows that the suspended
hiatus, between 1971 and 1973 in the case at bar will not afford
the occasion to buttress the unwarranted submission that the
first is an integral part of or intimately interwoven with the
second felony. A simple perusal of the two informations will
disclose, and this cannot be gainsaid, that the recitals thereof
radically differ with each other. The indictment for falsification
allegedly perpetrated in 1971 was levelled against private
respondent because of the pretense in the application for
registration of her exclusive dominion over a parcel of land
367
notwithstanding the previous sale of the same lot in 1969 to
Edilberto V. Ilano. By contrast, the inculpatory aspersions
against private respondent in 1973 for estafa have their roots in
the overt act of disposing the same piece of lot in favor of other
persons subsequent to the conveyance in favor of Edilberto V.
Ilano in 1969. Indeed, the intent to prevaricate on a piece of
document for the purpose of securing a favorable action for
registration within the context of Article 171 (4) in conjunction
with Article 172 of the Revised Penal Code is definitely
distinct from the perceived double sale contemplated by the
first paragraph under Article 316 of the same code.
2. It was similarly fallacious for the lower court to have shared
the notion that private respondent is in danger of being
convicted twice for the same criminal act, a circumstance
recognized under Section 2(h) Rule 117 of the Old Rules as
suggested in the motion to quash, because this plea is
understood to presuppose that the other case against private
respondent has been dismissed or otherwise terminated without
her express consent, by a court of competent jurisdiction, upon
a valid complaint or information, and after the defendant had
pleaded to the charge (People of the Philippines versus Hon.
Maximiano C. Asuncion, et al., G.R. Nos. 83837-42, April 22,
1992; Section 7, Rule 117, 1985 Rules on Criminal Procedure,
as amended). In the Asuncion case, Justice Nocon said that:
. . . according to a long line of cases, in order that a defendant
may successfully allege former jeopardy, it is necessary that he
had previously been (1) convicted or (2) acquitted, or (3) in
jeopardy of being convicted of the offense charged, that is, that
the former case against him for the same offense has been
dismissed or otherwise terminated without his express consent,
by a court of competent jurisdiction, upon a valid complaint or
information, and after the defendant had pleaded to the charge.
Withal, the mere filing of two informations charging the same
offense is not an appropriate basis for the invocation of double
jeopardy since the first jeopardy has not yet set in by a previous
conviction, acquittal or termination of the case without the
consent of the accused (People vs. Miraflores, 115 SCRA 586
[1982]; Nierras vs. Dacuycuy, 181 SCRA 8 [1990]).
In People vs. Miraflores (supra), the accused therein, after he
had pleaded to the charge of multiple frustrated murder in
Criminal Case No. 88173 and subsequent to his arraignment on
a separate charge of Murder in Criminal Case No. 88174,
invoked the plea of double jeopardy but Justice Barredo who
spoke for the Court was far from convinced:
But the more untenable aspect of the position of appellant is
that when he invoked the defense of double jeopardy, what
could have been the first jeopardy had not yet been completed
or even began. It is settled jurisprudence in this Court that the
mere filing of two informations or complaints charging the
same offense does not yet afford the accused in those cases the
occasion to complain that he is being placed in jeopardy twice
for the same offense, for the simple reason that the primary
basis of the defense of double jeopardy is that the accused has
already been convicted or acquitted in the first case or that the
same has been terminated without his consent. (Bulaong vs.
People, L-19344, July 27, 1966, 17 SCRA 746; Silvestre vs.
Military Commission No. 21, No. L-46366, March 8, 1978,
Buscayno vs. Military Commissions Nos. 1, 2, 6 and 25, No.
L-58284, Nov. 19, 1981, 109 SCRA 273).
368
Moreover, it appears that private respondent herein had not yet
been arraigned in the previous case for estafa. Thus, there is
that other missing link, so to speak, in the case at bar which
was precisely the same reason utilized by Justice Davide, Jr. in
Lamera vs. Court of Appeals (198 SCRA 186 [1991]) when he
brushed aside the claim of double jeopardy of the accused
therein who was arraigned in the previous case only after the
judgment of conviction was promulgated in the other case. The
ponente cited a plethora of cases in support of the proposition
that arraignment of the accused in the previous case is a
condition sine qua non for double jeopardy to attach (at page
13: People vs. Ylagan, 58 Phil. 851; People vs. Consulta, 70
SCRA 277; Andres v. Cacdac, 113 SCRA 216; People vs.
Bocar, et al., 132 SCRA 166; Gaspar vs. Sandiganbayan, 144
SCRA 415) and echoed the requisites of legal jeopardy as
announced in People vs. Bocar thus:
Legal jeopardy attaches only (a) upon a valid indictment, (b)
before a competent court, (c) after arraignment, (d) a valid plea
having been entered, and (e) the case was dismissed or
otherwise terminated without the express consent of the
accused. (at p. 193.)
To be sure, Chief Justice Moran said in his treatise on the
subject under consideration that:
Where there is no former conviction, acquittal, dismissal or
termination of a former case for the same offense, no jeopardy
attaches. (Comments on the Rules of Court, by Moran, Vol. 4,
1980 Ed., p. 281)
Of course, We are not unmindful of the erudite remarks of Mr.
Justice Florenz D. Regalado, in his Remedial Law
Compendium that:
It would now appear that prior conviction or acquittal in the
first case, as long as the accused had entered his plea therein is
no longer required in order that the accused may move to quash
a second prosecution for the same offense on the ground of
double jeopardy. (Volume 2, 1988 Edition, page 323; 339)
xxx xxx xxx
Jeopardy attaches from the entry of his plea at the arraignment
(People vs. City Court of Manila, et al., L-3642, April 27,
1983). (Vide page 327).
The sentiments expressed in this regard by Our distinguished
colleague which rest on the ruling of this Court in People vs.
City Court of Manila, Branch XI (121 SCRA 637 [1983], cited
by Regalado, Vide, at p. 339 to the effect that jeopardy would
already attach when the accused enters his plea due to the
obiter dictum of the ponente in that case, based on the
following factual backdrop:
The question presented in this case is whether a person who has
been prosecuted for serious physical injuries thru reckless
imprudence and convicted thereof may be prosecuted
subsequently for homicide thru reckless imprudence if the
offended party dies as a result of the same injuries he had
suffered.
xxx xxx xxx
369
In the case at bar, the incident occurred on October 17, 1971.
The following day, October 18, an information for serious
physical injuries thru reckless imprudence was filed against
private respondent driver of the truck. On the same day, the
victim Diolito de la Cruz died.
On October 20, 1972, private respondent was arraigned on the
charge of serious physical injuries thru reckless imprudence.
He pleaded guilty, was sentenced to one (1) month and one (1)
day of arresto mayor, and commenced serving sentence.
On October 24, 1972, an information for homicide thru
reckless imprudence was filed against private respondent.
On November 17, 1972, the City Court of Manila, upon motion
of private respondent, issued an order dismissing the homicide
thru reckless imprudence case on the ground of double
jeopardy.
where it was opined, thus:
Well-settled is the rule that one who has been charged
[implying that there is no need to show previous conviction,
acquittal, or dismissal of a similar or identical charge] with an
offense cannot be charged again with the same or identical
offense though the latter be lesser or greater than the former.
(Emphasis supplied.)
From the conclusion thus reached, it would appear that one
simply "charged" may claim possible jeopardy in another case.
However, a closer study of the case adverted to reveals that the
ponente may have overlooked the fact that the accused therein
was not only charged, but he actually admitted his guilt to the
charge of serious physical injuries through reckless imprudence
and more importantly, he was convicted of such crime and
commenced serving sentence. Verily, there was no occasion in
said case to speak of jeopardy being properly invoked by a
person simply charged with an offense if he is again charged
for the same or identical offense. It may be observed that in
City Court of Manila the accused therein pleaded on the first
offense of which he was charged and subsequently convicted,
unlike in the scenario at bar where private respondent entered
her plea to the second offense. But the variance on this point is
of no substantial worth because private respondent's plea to the
second offense is, as aforesaid, legally incomplete to sustain
her assertion of jeopardy for probable conviction of the same
felony, absent as there is the previous conviction, acquittal, or
termination without her express consent of the previous case
for estafa, and it being plain and obvious that the charges did
not arise from the same acts. In short, in order for the first
jeopardy to attach, the plea of the accused to the charge must
be coupled with either conviction, acquittal, or termination of
the previous case without his express consent thereafter.
(Tolentino vs. De la Costa, 66 Phil. 97 [1938]). Justice Oscar
Herrera, in his book "Remedial Law" enumerates the elements
constitutive of first jeopardy, to wit:
1. Court of competent jurisdiction;
2. Valid complaint or information;
3. Arraignment and a
4. Valid plea (People vs. Ylagan, 58 Phil. 851; 853)
370
5. The defendant was acquitted or convicted or the case
was dismissed or otherwise terminated without the express
consent of the accused (People vs. Declaro, G.R. No. 64362,
February 9, 1989, 170 SCRA 142; See also People vs.
Santiago, 174 SCRA 143; People vs. Gines, G.R. No. 83463,
May 27, 1991, 197 SCRA 481; Que vs. Cosico, 177 SCRA 410
[1989]; Caes vs. Intermediate Appellate Court, 179 SCRA 54;
Lamera vs. Court of Appeals, 198 SCRA 186 [1991]).
(Herrera, Remedial Law, 1992 Ed., Volume 4, p. 417).
Citing cases, both old and of recent vintage, Justice Herrera
continues to submit the idea that:
The first jeopardy is said to have validly terminated upon
conviction, acquittal or dismissal of the case or otherwise
terminated without the express consent of defendant (People
vs. Garcia, 30 SCRA 150; People vs. Ledesma, 73 SCRA 77;
People vs. Pilpa, 79 SCRA 81; Buscayno vs. Military
Commission, 109 SCRA 273; People vs. Cuevo, 104 SCRA
319; Galman, et al. vs. Sandiganbayan, G.R. No. 72670,
September 12, 1987.) (Vide, at page 423).
In People vs. Ledesma (73 SCRA 77 [1976]), Justice Martin
declared in no uncertain terms:
. . . In the case before Us, accused-appellee was charged with
estafa in Criminal Case No. 439 before a competent court
under a valid information and was duly convicted as charged.
He was therefore placed in legal jeopardy for the crime of
estafa in Criminal Case No. 439 for having failed to turn over
the proceeds of the sale of an Avegon radio in the amount of
P230.00 to the offended party. . . . (at p. 81)
The same observation was made by then Justice, later Chief
Justice Aquino in People vs. Pilpa (79 SCRA 81 [1977]):
In synthesis, there is former jeopardy when in the first case
there was a valid complaint or information filed in a court of
competent jurisdiction, and after the defendant had pleaded to
the charge, he was acquitted or convicted or the case against
him was terminated without his express consent (People vs.
Consulta, L-41251, March 31, 1976, 70 SCRA 277; People vs.
Ylagan, 58 Phil. 851, 853). (86)
At any rate, and inasmuch as this Court has spoken quite
recently in People vs. Asuncion, (G.R. Nos. 83837-42, April
22, 1992), the ambiguity stirred by the imprecise observation in
People vs. City Court of Manila, a 1983 case, can now be
considered modified in that a prior conviction, or acquittal, or
termination of the case without the express acquiescence of the
accused is still required before the first jeopardy can be pleaded
to abate a second prosecution.
While We are at a loss as to the status of the progress of the
estafa case on account of private respondent's apathy towards
Our order for the parties herein to "MOVE IN THE
PREMISES" (p. 125, Rollo) which information could
substantially affect the results of this case, from all indications
it appears that the estafa case has not yet been terminated.
WHEREFORE, the petition is GRANTED and the Orders of
respondent judge dated January 23, 1976 quashing the
information for falsification, and March 23, 1976 denying the
People's motion for reconsideration therefrom are hereby
REVERSED and SET ASIDE. Let the information for
falsification be reinstated and this case be remanded to the
371
lower court for further proceedings and trial. No special
pronouncement is made as to costs.
SO ORDERED.
Cruz, Padilla, Bidin, Griño-Aquino, Davide, Jr., Romero,
Nocon, Bellosillo and Campos, Jr., JJ., concur.
Quiason, J., took no part.
Gutierrez, Jr., J., on leave.
Separate Opinions
REGALADO, J., concurring and dissenting:
I concur in the result reached in the eloquently articulated and
well researched ponencia of Mr. Justice Melo in that the
assailed order of respondent judge quashing the information for
falsification should be reversed and the case be remanded to
the lower court for appropriate proceedings. I regret, however,
that some of the reasons advanced for that conclusion do not
square with my own views as I shall shortly explain.
1. First, on the concessible areas of concurrence. The
majority holds that private respondent Consolacion Naval
failed to seasonably raise the issue, and respondent judge
correspondingly erred in declaring, that she was supposedly
being prosecuted for falsification perpetrated to commit estafa.
The specific contention of the accused that she was charged
with the complex crime of estafa through falsification, in
connection with her submission on double jeopardy, was
allegedly not raised in a motion to quash but only subsequently
in a motion for reconsideration of the denial of the preceding
motion, hence under the omnibus motion rule expressed in
Section 3, Rule 117 of the 1964 Rules of Court that ground was
waived and could not be made the basis for the quashal
complained of.
To be more accurate, however, the accused did raise in her
basic motion to quash filed on October 28, 1975 in Criminal
Case No. 15796, not with the desirable explicitness required by
the rules on pleadings but acceptable under a liberal application
thereof, the issue of double jeopardy in this wise:
3. That accused is in jeopardy of being convicted for a
similar offense that is pending in court.
Attached to this motion is a zerox copy of the information in
Criminal Case No. 15795, CFI, Rizal, which alleges the
identical fact of giving alleged false testimony in the land
registration proceedings that is alleged in the information
before this Honorable Court. The defense of jeopardy is
applicable not only to a situation where the accused has in fact
been convicted but also to a situation where he is in danger of
being convicted for the same offense.1
372
At any rate, I would go a little farther, beyond that mere
procedural lapse, especially since the main decision took
recourse to that bar under the Rules prefaced by the assumption
"in gratia argumenti that falsification was indeed necessary to
commit estafa." During the deliberations in this case, I
advanced the view that even under substantive law, specifically
the provisions of and the jurisprudence on Article 48 of the
Revised Penal Code, the offenses of which private respondent
stands charged cannot be considered together as component
offenses constitutive of a single complex crime. I am gratified
that in the revised ponencia, the majority now shares my
position.
Private respondent was charged on the same day with estafa in
Criminal Case No. 15795 before Branch 19, and with
falsification in Criminal Case No. 15796 before Branch 21,
both of the then Court of First Instance of Rizal. From the
indictments in these two cases which are reproduced in the
decision, the majority notes that "(t)he confluence of the
foregoing assertions disclose that Consolacion Naval sold the
subject realty on August 12, 1969 to Edilberto Ilano who made
a partial payment of P130,850.00. About two years later, or on
August 17, 1971, an application for registration under the Land
Registration Act was submitted by Consolacion wherein she
stated that she owned the same lot and that it was
unencumbered. . . ."
The foregoing allegations constitute the basis for the
falsification charge for, as the information therein states,
because of her aforesaid representations that "(s)he is the
exclusive owner in fee simple" of the land and that she "does
not know of any mortgage or encumbrance of any kind
whatsoever affecting said land, . . . the Court in its Decision of
March 22, 1972 declared the herein accused the true and
absolute owner of said parcel of land free from all liens and
encumbrances of any nature . . ."
On the other hand, the charge for estafa in Criminal Case No.
15795 alleges that on or about March 23, 1973, private
respondent and one Anacleto Santos, "without informing said
Edilberto V. Ilano, . . . executed and filed an Application for
Registration over the same parcel of land among others, as a
result of which the Presiding Judge of Branch XIII to which
said case was assigned issued Original Certificate of Title No.
9332 in her name, . . ." and "sold more than one-half (1/2) of
said parcel of land" to nine (9) other persons named therein.
In his challenged order 2 rendered on January 23, 1976
quashing the information in the falsification case (Criminal
Case No. 15796), and with express reference to the
"information for estafa . . . previously filed against the accused,
docketed as Criminal Case No. 15795 assigned to Branch XIX
of this Court," respondent judge arrived at the following
conclusion:
This Court, therefore, finds the contention of the accused that
the crime of falsification charged in the present case and the
estafa case pending in Branch XIX of this Court constitute the
so-called complex crime. The falsification charge in the case at
bar was the means for committing crime of estafa now pending
in Branch XIX. In justice to the accused considering that if this
case should not be dismissed she stands in danger of being
convicted twice for the same criminal act that she
allegedly committed, this court is constrained to grant the
motion for reconsideration. 3
373
I regret that I cannot follow the logic in the aforesaid
disposition. The falsification charged in Criminal Case No-
15796 was allegedly committed on August 17, 1971 with an
application for land registration containing false statements. No
private offended parties, other than Edilberto Ilano, were
contemplated therein since no other sales of the land or
portions thereof were alleged to have been effected. On the
other hand, the estafa charged in Criminal Case No. 15795 was
supposedly committed almost two (2) years later, on March 23,
1973, allegedly by the filing of another application for
registration of parts of the same parcel of land, portions of
which were thereafter sold to nine (9) other persons who would
be the potential aggrieved parties. It is hard to conceive of how
a falsification committed in 1971 which, at that time, had no
probable or direct connection with the estafa committed in
1973, could be considered as the necessary means to commit
the latter such that both could be considered a single complex
crime.
In this type of complex crime under Article 48 of the Revised
Penal Code known in Spanish law as a delito complejo, there
must be a direct connection, both in point of time and intention,
that the first felony committed by the offender was deliberately
adopted by him as a necessary means to commit the other. That
singularity of purpose, or unity of criminal intent, is the basis
for penalizing both offenses with a single penalty, albeit in the
maximum period of that for the graver offense, since this is the
so-called case of formal or ideal plurality of crimes which is
generated by a single criminal resolution. 4
Thus, in Regis vs. People, 5 we stressed:
. . . The statement in the appealed decision that there was only
one intention to commit the falsification and the malversation
of April 30 and May 2, 1931 is not supported by the facts of the
case. They were committed on different dates sufficiently
distant from each other (April 30 and May 2, 1931). It does not
appear that when the malversation and the falsification were
committed on April 30, it was already the intention of the
appellant to commit also the falsification and the malversation
of May 2, 1931, the same being necessary to justify the finding
that, although they were committed on different dates, a single
intention determined the commission of both. The acts being
independent from each other and executed by different
voluntary actions, each constitutes an independent offense.
While the foregoing discussion may also apply to plurality of
complex crimes committed on different dates, the rationale is
the same. As already emphasized, there must be an evident
nexus between the first and the second felonies, in that the first
was resorted to precisely to ensure the commission and in
anticipation of the second. Here, it defies sober analysis as to
how the falsification in 1971 and the estafa in 1973 could be
the component felonies of a single complex crime.
On both procedural and substantive legal considerations,
therefore, I hold that public respondent erred in quashing the
information for falsification on the theory that, together with
the estafa, a complex crime is involved, hence to charge private
respondent in two separate criminal cases using each offense as
the respective subject of each charge would put her in double
jeopardy.
Private respondent, under the factual milieu of this case, cannot
be in double jeopardy. She is being charged with two separate
374
and distinct crimes. On top of that, the thesis of the majority is
that she even failed to duly raise the issue of a complex crime
vis-a-vis the rule of double jeopardy in the manner which
public respondent seized upon for the quashal of Criminal Case
No. 15796. We could, therefore, stop here and write finis to the
posturings of private respondent in this recourse, leaving the
inquiry into the case on the merits to the court a quo. The
majority, however, discourses on certain aspects of the doctrine
of double jeopardy which, although obiter in light of the
foregoing premises, warrants more than just the proverbial
second look and on which I would like to make some respectful
observations.
2. It is the postulation of the majority that "(t)he mere
filing of two informations charging the same offense is not an
appropriate basis for the invocation of double jeopardy since
the first jeopardy has not yet set in by a previous conviction,
acquittal or termination of the case without the consent of the
accused." This would be correct if what had transpired was the
mere filing of the two informations charging identical offenses,
but what about the situation where the accused has already
entered a plea to the first charge and is now confronted with a
second charge for the same offense? To this, the majority
ripostes that "in order for the first jeopardy to attach, the plea
of the accused to the charge must be coupled with either
conviction, acquittal, or termination of the previous case
without his express consent thereafter."
In fine, what the majority posits is that the doctrine of double
jeopardy can be invoked only if there was a previous
conviction, acquittal, or unconsented dismissal in the first case
against the accused and he is now charged again with the same
offense. Ergo, even if he was already arraigned on the first
charge, or even if he was undergoing trial therein when the
same offense is made the subject of a second charge, he cannot,
for lack of a prior conviction, acquittal or unconsented
dismissal in the first charge, move to quash the second identical
indictment on the ground of double jeopardy since putatively
there is still no first jeopardy to speak of.
This will necessitate an inquiry into and require clarification as
to stage of or point in time in the criminal proceedings when an
accused is considered as already in legal jeopardy or in danger
of conviction either for the first or second time. Since our basic
rules on double jeopardy are admittedly of American judicial
origin, the rulings in that jurisdiction would be instructive. We
find these annotations in Corpus Juris Secundum:
The general rule established by the preponderance of judicial
opinion and by the best considered cases is that, when a person
has been placed on trial on a valid indictment or information
before a court of competent jurisdiction, has been arraigned,
and has pleaded, and a jury has been impaneled and sworn, he
is in jeopardy, but that, until these things have been done,
jeopardy does not attach. 6
xxx xxx xxx
If jeopardy is considered to attach when the jury are sworn or
when the first witness is heard, it is not ordinarily necessary
that the prior trial shall have resulted in a valid judgment either
of conviction or acquittal: it is sufficient if the prisoner was
actually placed in jeopardy in that he was in danger of having a
valid judgment pronounced as the result of the trial: it is not the
verdict or judgment which places a prisoner in jeopardy.
375
In those jurisdictions which follow the generally recognized
rule, jeopardy attaches at the time the trial commences, and if
the trial is to a jury, the trial commences when the jury are
impaneled and sworn, and thus it is said that jeopardy attaches
when the jury are impaneled and sworn. If the trial is to the
court without a jury, it is well settled that, for the purpose of
determining when the jeopardy attaches, the trial begins at the
time of the commencement of the taking of testimony, that is,
when the first witness is duly sworn, and, accordingly, in such
a case, jeopardy begins after accused has been indicted,
arraigned, and has pleaded, and the court has begun to hear the
evidence, or the trial has begun to hear the evidence, or the trial
has begun by the reading of the indictment to the court. In the
application of these principles it is assumed that there has been
a plea of not guilty, and that the court has jurisdiction.7
(Emphasis supplied)
The doctrine above discussed to the effect that the accused is in
legal jeopardy from the moment he enters a valid plea to the
indictment is not terra incognita in our jurisdiction.
As early as 1933, in applying Section 28 of the then Code of
Criminal Procedure which was substantially incorporated in
Section 9, Rule 117 of the 1964 Rules of Court (now Section 7,
Rule 117 of the 1985 Rules of Criminal Procedure), this Court,
with minor allowances for our procedural differences with
criminal proceedings in American jurisdiction, substantially
reiterated the above-quoted doctrines as a basic proposition of
law.
It seems clear that under the foregoing provisions of law, a
defendant in a criminal prosecution is in legal jeopardy when
placed on trial under the following conditions: (1) In a court of
competent jurisdiction; (2) upon a valid complaint or
information; (3) after he has been arraigned; and (4) after he
has pleaded to the complaint or information. Tested by this
standard, we are of the opinion that the appellee has been once
in jeopardy for the offense for which she is now prosecuted. . . .
All that the law requires is that the accused has been brought to
trial "in a court of competent jurisdiction, upon a valid
complaint or information or other formal charge sufficient in
form and substance to sustain a conviction, after issue properly
joined." Under our system of criminal procedure, issue is
properly joined after the accused has entered a plea of not
guilty. The mere calling of a witness would not add to the
danger, annoyance, and vexation suffered by the accused, after
going through the process of being arrested, subjected to
preliminary investigation, arraigned and required to plead and
stand trial.8 (Emphasis mine.)
This is reiterated and clarified by a recognized authority who
explains that legal jeopardy exists from the moment the
accused has pleaded to the charge, and that the disposition of
his case thereafter is merely the consequence of the former as
to constitute a bar to another prosecution, thus:
. . ., legal jeopardy does not exist and a plea to that effect is not
accordingly available but under the following conditions: (a)
upon a valid complaint or informations: (b) before a court of
competent jurisdictions: and (c) after he has been arraigned and
has pleaded to the complaint or information. When all of these
conditions are shown to exist, the subsequent acquittal or
conviction of the accused, or the dismissal or termination of the
case without his express consent constitutes res adjudicata and,
therefore, a bar to another prosecution for the offense charged,
or for any attempt to commit the same or frustration thereof, or
376
for any offense which necessarily includes or is included
therein. 9
In other words, the concurrence of the three conditions above
enumerated having placed the accused in legal jeopardy, he can
invoke the ground in Section 3(h) of the present Rule 117; and
after judgment has been rendered therein, the ground for
quashal is furnished by Section 7 of the same rule which speaks
of previous conviction, acquittal or unconsented dismissal.
Parenthetically, the overriding significance of a plea is
underscored when we recall that after a plea has been entered,
there can be no amendment in substance of the information or
complaint, but only in form and this by leave and at the
discretion of the court if it can be done without prejudice to the
accused. 10 And, of course, it is fundamental that there can be
no valid judgment without a valid standing plea to the charge.
11
It is regrettable that the role of a plea entered to an indictment
appears to have been denigrated in our decisional rulings on
double jeopardy. While in almost all cases decided by the
Court double jeopardy was sustained because of a previous
conviction, acquittal or dismissal of the case without the
consent of the accused, these were so because the facts thereof
really made out in each a case of autrefois aquit or autrefois
convict. In addition, with the specific provision of then Section
9 (now Section 7) of Rule 117 providing for the requirements,
and under the heading of "Former conviction or acquittal or
former jeopardy" (now rephrased as such epigraph reading
"Former conviction or acquittal; double jeopardy."), the
impression created was that the doctrine of double jeopardy can
be invoked only if there was prior conviction, acquittal or
dismissal of the case involving the same offense of which the
accused is charged again. The writer respectfully submits
otherwise.
It has long been my position that the issue of double jeopardy
arises in three different ways, that is, when: (a) the accused is
charged with the same offense in two separate pending cases,
in one of which he has validly pleaded; (b) The accused is
prosecuted anew for the same offense after he has been
previously convicted or acquitted thereof or the charge therefor
had been dismissed without his consent; or (c) the prosecution
makes a legally unauthorized appeal from a judgment in the
same case. The first instance is contemplated in then Section 2
(now Section 3), paragraph (h), Rule 117; the second is
covered by Section 7 of the same Rule; and the third is
governed by Section 2, Rule 122.
That the first and the third instances are rarely involved in
cases or found in our jurisprudential annals is to the credit of
our prosecutorial agencies which, with respect to the first
instance, can seldom be faulted with simultaneously or
successively charging the same person twice with the same
offense in separate cases and, regarding the third instance, of
scrupulously avoiding the proscribed appeals. Evidently, this is
not to be construed to mean, however, that only the second
instance, or "former jeopardy," can be the basis of a motion to
quash.
Section 3 of Rule 117 provides the ground for a motion to
quash and, just like the provisions of the 1964 Rules of Court,
includes therein as paragraph "(h) That the accused has been
previously convicted or in jeopardy of being convicted or
acquitted of the offense charged." Indisputably, the first part of
this paragraph regarding previous conviction refers to the
377
"former jeopardy" embraced in the present Section 7 of this
Rule.
Now, unless we are prepared to treat the second part therein as
faulty drafting or linguistic surplusage, that second part
referring to the accused as "in jeopardy of being convicted or
acquitted of the offense charged" necessarily presupposes that
he has not yet been convicted or acquitted of an offense
identical to that with which he is again indicted. Since double
jeopardy requires, aside from the other requisites, at least two
cases involving identity of offenses but wherein the accused is
in legal jeopardy in at least one of them, this consequently
envisages the situation where the accused, who has already
entered a plea to the first charge but wherein no final
adjudication has yet been rendered, is again charged with the
same offense. It is, to paraphrase from the American expression
quoted in the main opinion, a proper case of "litis pendentia in
prison grey" and wherein quashal of the second case may
accordingly be sought pursuant to said Rule.
Spelled out to the point of elemental details, said paragraph (h)
actually provides for two modes constitutive of separate
grounds for quashal of a second indictment for the same
offense. Recasting its provisions for greater clarity, the first
mode allows quashal where the accused has been previously
convicted or acquitted of the same offense with which he is
again presently charged and in danger of a second conviction.
This would correspond, in civil procedure, to res judicata as a
ground for dismissal. The second mode stated in the same
paragraph contemplates the situation where the accused is only
in jeopardy or danger of being convicted in the first case, since
no judgment or final order has yet been rendered therein, and
he is now charged anew with the same offense. This is
equivalent, in civil case, to litis pendentia or auter action
pendant, likewise a ground for dismissal.
Now, in criminal procedure, these two variant grounds are
provided for in a single paragraph but definitely not as
identical, but alternative and discrete, grounds although
embraced in the same concept of double jeopardy. While the
censorious would prefer a more felicitous term for the second
mode, instead of also referring to it as double jeopardy, this is a
matter properly addressed to the framers of the rule or law
thereon. I can very well live with that term since, whether or
not the liability of the accused has been adjudged or still
awaiting adjudication in the first prosecution, what is sought to
be avoided is his subjection to another danger or jeopardy or
being again convicted and sentenced for an identical offense.
Judicial proceedings and determinations should never be the
victims of the tyranny of labels. What should control is the
legislative intendment and the purpose to be subserved. If we
were to be squeamish about terminology, we need merely note
that improper venue is not a ground for a motion to quash. Its
counterpart in criminal procedure is lack of jurisdiction of the
trial court over the offense charged, under Section 3(b) of Rule
117, since in criminal cases venue is jurisdictional as the court
has no jurisdiction to try an offense committed outside its
territorial jurisdiction. 12 Yet, we still have to hear any strident
objection to the practice equating both terms as virtually
synonymous objections to the validity of a criminal
prosecution.
Coming back to my preceding disquisition on double jeopardy,
I humbly submit that a view contrary thereto could be
productive of mischievous, if not preposterous, results. While,
378
as earlier observed, it is a little remote for the same authority to
charge the same accused with two criminal suits involving the
same offense, this is not an absolute improbability, as witness
politically-motivated harassment prosecutions. It is also
possible that duplicity of suits on identical offenses may be
brought about by acts of different authorities in separate local
jurisdictions.
Thus, to illustrate, 13 if forcible abduction is committed and
commenced in Manila and the victim is taken to Tarlac and
thence to Cagayan, being a continuing crime the criminal
action therefor may be instituted in the proper court of any
province in which the offense is continued. If, by error or
design, three cases involving the same parties and offense are
lodged in Manila, Tarlac and Cagayan, either categorized under
the same offense of forcible abduction or with two of them
dissembled as different offenses of arbitrary detention or grave
coercion through the expedient of variations in the particulars
of the indictment, we would have the not improbable scenario
of the same accused enmeshed in three different criminal
actions which actually involve the same offense.
Where, thereafter, the accused upon arraignment pleaded not
guilty in Manila, it would be a judicial travesty that for lack of
a final disposition in said case he cannot be allowed to move to
quash the other two pending cases on the ground of double
jeopardy, in the hearing of which motion the identity of the
offenses can be proved and the dismissal of the other two
actions could accordingly be ordered.
Again, since the majority insists that a final judgment in the
first case is a sine qua non for a motion to quash the other two
cases, if the accused was convicted in the first case and said
conviction is brought on appeal where it may remain pending
for years, what happens to the other two cases? Shall they
instead be consolidated for trial with the inevitable
inconvenience and expenses necessitated by transfer of venue
and production of witnesses from a different vicinage, not to
speak of the awkward and improbable situation of two of the
same cases being each consolidated with itself and with the
court having to resolve all? Shall they be allowed to proceed on
independent trial utilizing the same evidence or shall the
proceedings therein be indefinitely suspended to await the
ultimate outcome of the first?
The absurdity of having to be unnecessarily confronted with
the aforesaid options is further underscored by the fact that
howsoever the first case is disposed of, the other two cases
would be barred by previous jeopardy under Section 7 of Rule
117, hence the independent proceedings that may have been
conducted or the suspension thereof in those two cases would
be completely pointless and unnecessary. Permitting the
accused to move to quash the said two cases after he had
pleaded to the first would have obviated the impasse created by
requiring a prior final decision and spared him the vexation and
expenses for fees and bail in the other two improvident
prosecutions.
..........MISSING LINE..........
This is where Section 3(h) of the same rule could have been
overlooked, misconstrued, or altogether ignored.
One final word. The majority points out that it was obiter for
the Court to rule in People vs. City Court of Manila, Branch XI
14 that the accused therein was in double jeopardy because he
379
had already been charged for the same offense, emphasizing
that such imprecision of language would give the impression
that one simply charged may claim possible jeopardy in
another case. This writer is aware that the ponente therein
committed an innocent oversight hence in my comment
thereon, as quoted in the main decision, it was explained that
this would be so as long as the accused had entered his plea
therein. Aware that such statement in that case could further be,
as it is now, blandly dismissed as obiter, I also made the
qualification that my comment was as the doctrine "would now
appear" based on the holding in said case.
Yet, as a statement of a rule of procedure, I believe that,
properly and completely expressed, the view of the ponente in
that case was in the right direction on that score. Also, we have
held that while an obiter dictum is generally not binding as
authority or precedent within the stare decisis rule, it may be
followed if sufficiently persuasive. 15 I make this observation
since it may also be argued that the present discussion
regarding the bases of my dissent would be orbiter if we hold
that in the present case the issue of double jeopardy is not
really involved since the private respondent is not being
charged with a complex crime, the component felonies of
which have been made subject of separate suits, but of two
distinct and independent crimes.
Nonetheless, as ultimate arbiters of the law, we cannot and we
should not continue to cleave with obstinate tenacity or persist
in citing with rote-like consistency clearly inapposite or
inapplicable doctrines catalogued in works notable not for
logical analysis but by their reliance on the numerical weight of
cases decided on the bases of disparate factual situations, or by
reason of a slavish obsession for footnotes. Perpetuating a
misconception spawned by the inertia of cavalier reliance on
supposed precedents is a disservice to the doctrine of stare
decisis.
As earlier stated, therefore, since my present dissent is on an
issue which I believe this court should soonest clarify, on the
considerations hereinbefore expressed. I categorically submit
that where an accused has validly pleaded to the appropriate
indictment sufficiently charging him with an offense in a court
of competent jurisdiction, he can seek and obtain the quashal of
a subsequent charge for the same offense on the ground of
double jeopardy even before the final disposition of the first
case.
Narvasa, C.J. and Feliciano, J., concur.
# Separate Opinions
REGALADO, J., concurring and dissenting:
I concur in the result reached in the eloquently articulated and
well researched ponencia of Mr. Justice Melo in that the
assailed order of respondent judge quashing the information for
falsification should be reversed and the case be remanded to
the lower court for appropriate proceedings. I regret, however,
that some of the reasons advanced for that conclusion do not
square with my own views as I shall shortly explain.
380
1. First, on the concessible areas of concurrence. The
majority holds that private respondent Consolacion Naval
failed to seasonably raise the issue, and respondent judge
correspondingly erred in declaring, that she was supposedly
being prosecuted for falsification perpetrated to commit estafa.
The specific contention of the accused that she was charged
with the complex crime of estafa through falsification, in
connection with her submission on double jeopardy, was
allegedly not raised in a motion to quash but only subsequently
in a motion for reconsideration of the denial of the preceding
motion, hence under the omnibus motion rule expressed in
Section 3, Rule 117 of the 1964 Rules of Court that ground was
waived and could not be made the basis for the quashal
complained of.
To be more accurate, however, the accused did raise in her
basic motion to quash filed on October 28, 1975 in Criminal
Case No. 15796, not with the desirable explicitness required by
the rules on pleadings but acceptable under a liberal application
thereof, the issue of double jeopardy in this wise:
3. That accused is in jeopardy of being convicted for a
similar offense that is pending in court.
Attached to this motion is a zerox copy of the information in
Criminal Case No. 15795, CFI, Rizal, which alleges the
identical fact of giving alleged false testimony in the land
registration proceedings that is alleged in the information
before this Honorable Court. The defense of jeopardy is
applicable not only to a situation where the accused has in fact
been convicted but also to a situation where he is in danger of
being convicted for the same offense.1
At any rate, I would go a little farther, beyond that mere
procedural lapse, especially since the main decision took
recourse to that bar under the Rules prefaced by the assumption
"in gratia argumenti that falsification was indeed necessary to
commit estafa." During the deliberations in this case, I
advanced the view that even under substantive law, specifically
the provisions of and the jurisprudence on Article 48 of the
Revised Penal Code, the offenses of which private respondent
stands charged cannot be considered together as component
offenses constitutive of a single complex crime. I am gratified
that in the revised ponencia, the majority now shares my
position.
Private respondent was charged on the same day with estafa in
Criminal Case No. 15795 before Branch 19, and with
falsification in Criminal Case No. 15796 before Branch 21,
both of the then Court of First Instance of Rizal. From the
indictments in these two cases which are reproduced in the
decision, the majority notes that "(t)he confluence of the
foregoing assertions disclose that Consolacion Naval sold the
subject realty on August 12, 1969 to Edilberto Ilano who made
a partial payment of P130,850.00. About two years later, or on
August 17, 1971, an application for registration under the Land
Registration Act was submitted by Consolacion wherein she
stated that she owned the same lot and that it was
unencumbered. . . ."
The foregoing allegations constitute the basis for the
falsification charge for, as the information therein states,
because of her aforesaid representations that "(s)he is the
exclusive owner in fee simple" of the land and that she "does
not know of any mortgage or encumbrance of any kind
whatsoever affecting said land, . . . the Court in its Decision of
381
March 22, 1972 declared the herein accused the true and
absolute owner of said parcel of land free from all liens and
encumbrances of any nature . . ."
On the other hand, the charge for estafa in Criminal Case No.
15795 alleges that on or about March 23, 1973, private
respondent and one Anacleto Santos, "without informing said
Edilberto V. Ilano, . . . executed and filed an Application for
Registration over the same parcel of land among others, as a
result of which the Presiding Judge of Branch XIII to which
said case was assigned issued Original Certificate of Title No.
9332 in her name, . . ." and "sold more than one-half (1/2) of
said parcel of land" to nine (9) other persons named therein.
In his challenged order 2 rendered on January 23, 1976
quashing the information in the falsification case (Criminal
Case No. 15796), and with express reference to the
"information for estafa . . . previously filed against the accused,
docketed as Criminal Case No. 15795 assigned to Branch XIX
of this Court," respondent judge arrived at the following
conclusion:
This Court, therefore, finds the contention of the accused that
the crime of falsification charged in the present case and the
estafa case pending in Branch XIX of this Court constitute the
so-called complex crime. The falsification charge in the case at
bar was the means for committing crime of estafa now pending
in Branch XIX. In justice to the accused considering that if this
case should not be dismissed she stands in danger of being
convicted twice for the same criminal act that she
allegedly committed, this court is constrained to grant the
motion for reconsideration. 3
I regret that I cannot follow the logic in the aforesaid
disposition. The falsification charged in Criminal Case No-
15796 was allegedly committed on August 17, 1971 with an
application for land registration containing false statements. No
private offended parties, other than Edilberto Ilano, were
contemplated therein since no other sales of the land or
portions thereof were alleged to have been effected. On the
other hand, the estafa charged in Criminal Case No. 15795 was
supposedly committed almost two (2) years later, on March 23,
1973, allegedly by the filing of another application for
registration of parts of the same parcel of land, portions of
which were thereafter sold to nine (9) other persons who would
be the potential aggrieved parties. It is hard to conceive of how
a falsification committed in 1971 which, at that time, had no
probable or direct connection with the estafa committed in
1973, could be considered as the necessary means to commit
the latter such that both could be considered a single complex
crime.
In this type of complex crime under Article 48 of the Revised
Penal Code known in Spanish law as a delito complejo, there
must be a direct connection, both in point of time and intention,
that the first felony committed by the offender was deliberately
adopted by him as a necessary means to commit the other. That
singularity of purpose, or unity of criminal intent, is the basis
for penalizing both offenses with a single penalty, albeit in the
maximum period of that for the graver offense, since this is the
so-called case of formal or ideal plurality of crimes which is
generated by a single criminal resolution. 4
Thus, in Regis vs. People, 5 we stressed:
382
. . . The statement in the appealed decision that there was only
one intention to commit the falsification and the malversation
of April 30 and May 2, 1931 is not supported by the facts of the
case. They were committed on different dates sufficiently
distant from each other (April 30 and May 2, 1931). It does not
appear that when the malversation and the falsification were
committed on April 30, it was already the intention of the
appellant to commit also the falsification and the malversation
of May 2, 1931, the same being necessary to justify the finding
that, although they were committed on different dates, a single
intention determined the commission of both. The acts being
independent from each other and executed by different
voluntary actions, each constitutes an independent offense.
While the foregoing discussion may also apply to plurality of
complex crimes committed on different dates, the rationale is
the same. As already emphasized, there must be an evident
nexus between the first and the second felonies, in that the first
was resorted to precisely to ensure the commission and in
anticipation of the second. Here, it defies sober analysis as to
how the falsification in 1971 and the estafa in 1973 could be
the component felonies of a single complex crime.
On both procedural and substantive legal considerations,
therefore, I hold that public respondent erred in quashing the
information for falsification on the theory that, together with
the estafa, a complex crime is involved, hence to charge private
respondent in two separate criminal cases using each offense as
the respective subject of each charge would put her in double
jeopardy.
Private respondent, under the factual milieu of this case, cannot
be in double jeopardy. She is being charged with two separate
and distinct crimes. On top of that, the thesis of the majority is
that she even failed to duly raise the issue of a complex crime
vis-a-vis the rule of double jeopardy in the manner which
public respondent seized upon for the quashal of Criminal Case
No. 15796. We could, therefore, stop here and write finis to the
posturings of private respondent in this recourse, leaving the
inquiry into the case on the merits to the court a quo. The
majority, however, discourses on certain aspects of the doctrine
of double jeopardy which, although obiter in light of the
foregoing premises, warrants more than just the proverbial
second look and on which I would like to make some respectful
observations.
2. It is the postulation of the majority that "(t)he mere
filing of two informations charging the same offense is not an
appropriate basis for the invocation of double jeopardy since
the first jeopardy has not yet set in by a previous conviction,
acquittal or termination of the case without the consent of the
accused." This would be correct if what had transpired was the
mere filing of the two informations charging identical offenses,
but what about the situation where the accused has already
entered a plea to the first charge and is now confronted with a
second charge for the same offense? To this, the majority
ripostes that "in order for the first jeopardy to attach, the plea
of the accused to the charge must be coupled with either
conviction, acquittal, or termination of the previous case
without his express consent thereafter."
In fine, what the majority posits is that the doctrine of double
jeopardy can be invoked only if there was a previous
conviction, acquittal, or unconsented dismissal in the first case
against the accused and he is now charged again with the same
offense. Ergo, even if he was already arraigned on the first
383
charge, or even if he was undergoing trial therein when the
same offense is made the subject of a second charge, he cannot,
for lack of a prior conviction, acquittal or unconsented
dismissal in the first charge, move to quash the second identical
indictment on the ground of double jeopardy since putatively
there is still no first jeopardy to speak of.
This will necessitate an inquiry into and require clarification as
to stage of or point in time in the criminal proceedings when an
accused is considered as already in legal jeopardy or in danger
of conviction either for the first or second time. Since our basic
rules on double jeopardy are admittedly of American judicial
origin, the rulings in that jurisdiction would be instructive. We
find these annotations in Corpus Juris Secundum:
The general rule established by the preponderance of judicial
opinion and by the best considered cases is that, when a person
has been placed on trial on a valid indictment or information
before a court of competent jurisdiction, has been arraigned,
and has pleaded, and a jury has been impaneled and sworn, he
is in jeopardy, but that, until these things have been done,
jeopardy does not attach. 6
xxx xxx xxx
If jeopardy is considered to attach when the jury are sworn or
when the first witness is heard, it is not ordinarily necessary
that the prior trial shall have resulted in a valid judgment either
of conviction or acquittal: it is sufficient if the prisoner was
actually placed in jeopardy in that he was in danger of having a
valid judgment pronounced as the result of the trial: it is not the
verdict or judgment which places a prisoner in jeopardy.
In those jurisdictions which follow the generally recognized
rule, jeopardy attaches at the time the trial commences, and if
the trial is to a jury, the trial commences when the jury are
impaneled and sworn, and thus it is said that jeopardy attaches
when the jury are impaneled and sworn. If the trial is to the
court without a jury, it is well settled that, for the purpose of
determining when the jeopardy attaches, the trial begins at the
time of the commencement of the taking of testimony, that is,
when the first witness is duly sworn, and, accordingly, in such
a case, jeopardy begins after accused has been indicted,
arraigned, and has pleaded, and the court has begun to hear the
evidence, or the trial has begun to hear the evidence, or the trial
has begun by the reading of the indictment to the court. In the
application of these principles it is assumed that there has been
a plea of not guilty, and that the court has jurisdiction.7
(Emphasis supplied)
The doctrine above discussed to the effect that the accused is in
legal jeopardy from the moment he enters a valid plea to the
indictment is not terra incognita in our jurisdiction.
As early as 1933, in applying Section 28 of the then Code of
Criminal Procedure which was substantially incorporated in
Section 9, Rule 117 of the 1964 Rules of Court (now Section 7,
Rule 117 of the 1985 Rules of Criminal Procedure), this Court,
with minor allowances for our procedural differences with
criminal proceedings in American jurisdiction, substantially
reiterated the above-quoted doctrines as a basic proposition of
law.
It seems clear that under the foregoing provisions of law, a
defendant in a criminal prosecution is in legal jeopardy when
placed on trial under the following conditions: (1) In a court of
384
competent jurisdiction; (2) upon a valid complaint or
information; (3) after he has been arraigned; and (4) after he
has pleaded to the complaint or information. Tested by this
standard, we are of the opinion that the appellee has been once
in jeopardy for the offense for which she is now prosecuted. . . .
All that the law requires is that the accused has been brought to
trial "in a court of competent jurisdiction, upon a valid
complaint or information or other formal charge sufficient in
form and substance to sustain a conviction, after issue properly
joined." Under our system of criminal procedure, issue is
properly joined after the accused has entered a plea of not
guilty. The mere calling of a witness would not add to the
danger, annoyance, and vexation suffered by the accused, after
going through the process of being arrested, subjected to
preliminary investigation, arraigned and required to plead and
stand trial.8 (Emphasis mine.)
This is reiterated and clarified by a recognized authority who
explains that legal jeopardy exists from the moment the
accused has pleaded to the charge, and that the disposition of
his case thereafter is merely the consequence of the former as
to constitute a bar to another prosecution, thus:
. . ., legal jeopardy does not exist and a plea to that effect is not
accordingly available but under the following conditions: (a)
upon a valid complaint or informations: (b) before a court of
competent jurisdictions: and (c) after he has been arraigned and
has pleaded to the complaint or information. When all of these
conditions are shown to exist, the subsequent acquittal or
conviction of the accused, or the dismissal or termination of the
case without his express consent constitutes res adjudicata and,
therefore, a bar to another prosecution for the offense charged,
or for any attempt to commit the same or frustration thereof, or
for any offense which necessarily includes or is included
therein. 9
In other words, the concurrence of the three conditions above
enumerated having placed the accused in legal jeopardy, he can
invoke the ground in Section 3(h) of the present Rule 117; and
after judgment has been rendered therein, the ground for
quashal is furnished by Section 7 of the same rule which speaks
of previous conviction, acquittal or unconsented dismissal.
Parenthetically, the overriding significance of a plea is
underscored when we recall that after a plea has been entered,
there can be no amendment in substance of the information or
complaint, but only in form and this by leave and at the
discretion of the court if it can be done without prejudice to the
accused. 10 And, of course, it is fundamental that there can be
no valid judgment without a valid standing plea to the charge.
11
It is regrettable that the role of a plea entered to an indictment
appears to have been denigrated in our decisional rulings on
double jeopardy. While in almost all cases decided by the
Court double jeopardy was sustained because of a previous
conviction, acquittal or dismissal of the case without the
consent of the accused, these were so because the facts thereof
really made out in each a case of autrefois aquit or autrefois
convict. In addition, with the specific provision of then Section
9 (now Section 7) of Rule 117 providing for the requirements,
and under the heading of "Former conviction or acquittal or
former jeopardy" (now rephrased as such epigraph reading
"Former conviction or acquittal; double jeopardy."), the
impression created was that the doctrine of double jeopardy can
be invoked only if there was prior conviction, acquittal or
dismissal of the case involving the same offense of which the
385
accused is charged again. The writer respectfully submits
otherwise.
It has long been my position that the issue of double jeopardy
arises in three different ways, that is, when: (a) the accused is
charged with the same offense in two separate pending cases,
in one of which he has validly pleaded; (b) The accused is
prosecuted anew for the same offense after he has been
previously convicted or acquitted thereof or the charge therefor
had been dismissed without his consent; or (c) the prosecution
makes a legally unauthorized appeal from a judgment in the
same case. The first instance is contemplated in then Section 2
(now Section 3), paragraph (h), Rule 117; the second is
covered by Section 7 of the same Rule; and the third is
governed by Section 2, Rule 122.
That the first and the third instances are rarely involved in
cases or found in our jurisprudential annals is to the credit of
our prosecutorial agencies which, with respect to the first
instance, can seldom be faulted with simultaneously or
successively charging the same person twice with the same
offense in separate cases and, regarding the third instance, of
scrupulously avoiding the proscribed appeals. Evidently, this is
not to be construed to mean, however, that only the second
instance, or "former jeopardy," can be the basis of a motion to
quash.
Section 3 of Rule 117 provides the ground for a motion to
quash and, just like the provisions of the 1964 Rules of Court,
includes therein as paragraph "(h) That the accused has been
previously convicted or in jeopardy of being convicted or
acquitted of the offense charged." Indisputably, the first part of
this paragraph regarding previous conviction refers to the
"former jeopardy" embraced in the present Section 7 of this
Rule.
Now, unless we are prepared to treat the second part therein as
faulty drafting or linguistic surplusage, that second part
referring to the accused as "in jeopardy of being convicted or
acquitted of the offense charged" necessarily presupposes that
he has not yet been convicted or acquitted of an offense
identical to that with which he is again indicted. Since double
jeopardy requires, aside from the other requisites, at least two
cases involving identity of offenses but wherein the accused is
in legal jeopardy in at least one of them, this consequently
envisages the situation where the accused, who has already
entered a plea to the first charge but wherein no final
adjudication has yet been rendered, is again charged with the
same offense. It is, to paraphrase from the American expression
quoted in the main opinion, a proper case of "litis pendentia in
prison grey" and wherein quashal of the second case may
accordingly be sought pursuant to said Rule.
Spelled out to the point of elemental details, said paragraph (h)
actually provides for two modes constitutive of separate
grounds for quashal of a second indictment for the same
offense. Recasting its provisions for greater clarity, the first
mode allows quashal where the accused has been previously
convicted or acquitted of the same offense with which he is
again presently charged and in danger of a second conviction.
This would correspond, in civil procedure, to res judicata as a
ground for dismissal. The second mode stated in the same
paragraph contemplates the situation where the accused is only
in jeopardy or danger of being convicted in the first case, since
no judgment or final order has yet been rendered therein, and
he is now charged anew with the same offense. This is
386
equivalent, in civil case, to litis pendentia or auter action
pendant, likewise a ground for dismissal.
Now, in criminal procedure, these two variant grounds are
provided for in a single paragraph but definitely not as
identical, but alternative and discrete, grounds although
embraced in the same concept of double jeopardy. While the
censorious would prefer a more felicitous term for the second
mode, instead of also referring to it as double jeopardy, this is a
matter properly addressed to the framers of the rule or law
thereon. I can very well live with that term since, whether or
not the liability of the accused has been adjudged or still
awaiting adjudication in the first prosecution, what is sought to
be avoided is his subjection to another danger or jeopardy or
being again convicted and sentenced for an identical offense.
Judicial proceedings and determinations should never be the
victims of the tyranny of labels. What should control is the
legislative intendment and the purpose to be subserved. If we
were to be squeamish about terminology, we need merely note
that improper venue is not a ground for a motion to quash. Its
counterpart in criminal procedure is lack of jurisdiction of the
trial court over the offense charged, under Section 3(b) of Rule
117, since in criminal cases venue is jurisdictional as the court
has no jurisdiction to try an offense committed outside its
territorial jurisdiction. 12 Yet, we still have to hear any strident
objection to the practice equating both terms as virtually
synonymous objections to the validity of a criminal
prosecution.
Coming back to my preceding disquisition on double jeopardy,
I humbly submit that a view contrary thereto could be
productive of mischievous, if not preposterous, results. While,
as earlier observed, it is a little remote for the same authority to
charge the same accused with two criminal suits involving the
same offense, this is not an absolute improbability, as witness
politically-motivated harassment prosecutions. It is also
possible that duplicity of suits on identical offenses may be
brought about by acts of different authorities in separate local
jurisdictions.
Thus, to illustrate, 13 if forcible abduction is committed and
commenced in Manila and the victim is taken to Tarlac and
thence to Cagayan, being a continuing crime the criminal
action therefor may be instituted in the proper court of any
province in which the offense is continued. If, by error or
design, three cases involving the same parties and offense are
lodged in Manila, Tarlac and Cagayan, either categorized under
the same offense of forcible abduction or with two of them
dissembled as different offenses of arbitrary detention or grave
coercion through the expedient of variations in the particulars
of the indictment, we would have the not improbable scenario
of the same accused enmeshed in three different criminal
actions which actually involve the same offense.
Where, thereafter, the accused upon arraignment pleaded not
guilty in Manila, it would be a judicial travesty that for lack of
a final disposition in said case he cannot be allowed to move to
quash the other two pending cases on the ground of double
jeopardy, in the hearing of which motion the identity of the
offenses can be proved and the dismissal of the other two
actions could accordingly be ordered.
Again, since the majority insists that a final judgment in the
first case is a sine qua non for a motion to quash the other two
cases, if the accused was convicted in the first case and said
387
conviction is brought on appeal where it may remain pending
for years, what happens to the other two cases? Shall they
instead be consolidated for trial with the inevitable
inconvenience and expenses necessitated by transfer of venue
and production of witnesses from a different vicinage, not to
speak of the awkward and improbable situation of two of the
same cases being each consolidated with itself and with the
court having to resolve all? Shall they be allowed to proceed on
independent trial utilizing the same evidence or shall the
proceedings therein be indefinitely suspended to await the
ultimate outcome of the first?
The absurdity of having to be unnecessarily confronted with
the aforesaid options is further underscored by the fact that
howsoever the first case is disposed of, the other two cases
would be barred by previous jeopardy under Section 7 of Rule
117, hence the independent proceedings that may have been
conducted or the suspension thereof in those two cases would
be completely pointless and unnecessary. Permitting the
accused to move to quash the said two cases after he had
pleaded to the first would have obviated the impasse created by
requiring a prior final decision and spared him the vexation and
expenses for fees and bail in the other two improvident
prosecutions.
..........MISSING LINE..........
This is where Section 3(h) of the same rule could have been
overlooked, misconstrued, or altogether ignored.
One final word. The majority points out that it was obiter for
the Court to rule in People vs. City Court of Manila, Branch XI
14 that the accused therein was in double jeopardy because he
had already been charged for the same offense, emphasizing
that such imprecision of language would give the impression
that one simply charged may claim possible jeopardy in
another case. This writer is aware that the ponente therein
committed an innocent oversight hence in my comment
thereon, as quoted in the main decision, it was explained that
this would be so as long as the accused had entered his plea
therein. Aware that such statement in that case could further be,
as it is now, blandly dismissed as obiter, I also made the
qualification that my comment was as the doctrine "would now
appear" based on the holding in said case.
Yet, as a statement of a rule of procedure, I believe that,
properly and completely expressed, the view of the ponente in
that case was in the right direction on that score. Also, we have
held that while an obiter dictum is generally not binding as
authority or precedent within the stare decisis rule, it may be
followed if sufficiently persuasive. 15 I make this observation
since it may also be argued that the present discussion
regarding the bases of my dissent would be orbiter if we hold
that in the present case the issue of double jeopardy is not
really involved since the private respondent is not being
charged with a complex crime, the component felonies of
which have been made subject of separate suits, but of two
distinct and independent crimes.
Nonetheless, as ultimate arbiters of the law, we cannot and we
should not continue to cleave with obstinate tenacity or persist
in citing with rote-like consistency clearly inapposite or
inapplicable doctrines catalogued in works notable not for
logical analysis but by their reliance on the numerical weight of
cases decided on the bases of disparate factual situations, or by
reason of a slavish obsession for footnotes. Perpetuating a
388
misconception spawned by the inertia of cavalier reliance on
supposed precedents is a disservice to the doctrine of stare
decisis.
As earlier stated, therefore, since my present dissent is on an
issue which I believe this court should soonest clarify, on the
considerations hereinbefore expressed. I categorically submit
that where an accused has validly pleaded to the appropriate
indictment sufficiently charging him with an offense in a court
of competent jurisdiction, he can seek and obtain the quashal of
a subsequent charge for the same offense on the ground of
double jeopardy even before the final disposition of the first
case.
[G.R. No. 102131. August 31, 1992.]
FRANCO GORION, Petitioner, v. REGIONAL TRIAL
COURT OF CEBU, Branch 17, presided by HON. JOSE
BURGOS, PEOPLE OF THE PHILIPPINES, represented by
CITY PROSECUTOR RODULFO PEREZ and BONIFACIO
BACALTOS, Respondents.
Eutiquiano V. Bilocura for Petitioner.
SYLLABUS
1. REMEDIAL LAW; CRIMINAL PROCEDURE;
DOUBLE JEOPARDY; NOT VIOLATED WHEN FIRST
CASE CAPRICIOUSLY AND ARBITRARILY DISMISSED.
— It is obvious to this Court that the trial court was, on 28
September 1990, divested of jurisdiction, pro hac vice, to issue
any order, much less one of dismissal, in Criminal Case No.
CBU-16727 for the simple reason that said case was already
effectively removed from its trial calendar for that date in view
of the previous day’s order cancelling the hearing of the case
on 27 and 28 September 1990. Plainly, the court should not
have included the case for hearing in the 28 September 1990
trial calendar. The erroneous dismissal order of 28 September
1990 wad then issued capriciously and arbitrarily; it
unquestionably deprived the State of a fair opportunity to
present and prove its case. Thus, its right to due process was
violated. The said order is null and void and hence, cannot be
pleaded by the petitioner to bar the subsequent annulment of
the dismissal order or a re-opening of the case on the ground of
double jeopardy. This is the rule obtaining in this jurisdiction.
The dismissal order of 28 September 1990 being null and void
because the trial court lost its jurisdiction to issue the same and
violated the right of the prosecution to due process, it follows
that Criminal Case No. CBU-16726 continues to remain at that
stage before the said order was issued. Consequently, the first
jeopardy was not terminated and no second jeopardy threatened
the accused.
2. ID.; ID.; ID.; REQUISITES. — The three (3) requisites
of double jeopardy are: (1) a first jeopardy must have attached
389
prior to the second, (2) the first jeopardy must have been
validly terminated, and (3) a second jeopardy must be for the
same offense as that in the first. Legal jeopardy attaches only
(a) upon a valid indictment, (b) before a competent court, (c)
after arraignment, (d) when a valid plea has been entered, and
(e) when the case was dismissed or otherwise terminated
without the express consent of the accused. (People v. Bocar,
138 SCRA 166 [1985]; Saldana v. Court of Appeals, 190
SCRA 396 [1990]).
DECISION
DAVIDE, JR., J.:
May an order dismissing a criminal case after the accused had
been arraigned, issued in open court through inadvertence or
mistake during a hearing that had already been cancelled, be set
aside by the court and the case tried without placing the
accused in double jeopardy?chanrobles virtualawlibrary
chanrobles.com:chanrobles.com.ph
This is the issue in this case.
On 17 October 1989, after conducting the appropriate
preliminary investigation pursuant to a complaint filed by one
Bonifacio Bacaltos, the Office of the City Prosecutor of Cebu
City filed with the Regional Trial Court of Cebu an information
charging the petitioner with the crime of Estafa involving the
amount of P50,000.00. The case was docketed as Criminal
Case No. CBU-16726 1 and was raffled to Branch 17 of said
court.
Upon his arraignment on 12 March 1990, the petitioner entered
a plea of not guilty and the court set the pre-trial and trial of the
case for 17 April 1990. 2
The pleadings of the parties do not reveal what transpired on 17
April 1990. It appears, however, that hearing was again
scheduled for 27 and 28 September 1990.
When the case was called for hearing on 27 September 1990,
neither the petitioner nor the accused was present. Not wanting
to take advantage of their absence, and considering that there
were other cases to be heard, the prosecutor moved for the
cancellation of the hearing on that date as well as the hearing to
be held the following day, which the court granted. The hearing
was reset to 4 October 1990. The pertinent portions of the
transcript of stenographic notes of the proceedings on 27
September 1990 read:jgc:chanrobles.com.ph
"ATTY. GAMELO FAJARDO:chanrob1es virtual 1aw library
I appear as private prosecutor in this case, Your Honor.
FISCAL RODOLFO PEREZ:chanrob1es virtual 1aw library
For the Prosecution, Your Honor.
COURT:chanrob1es virtual 1aw library
Where is (sic) the accused and the defense counsel?.
390
ATTY. FAJARDO:chanrob1es virtual 1aw library
I have not seen them in the courtroom, Your Honor.
FISCAL PEREZ:chanrob1es virtual 1aw library
The private complainant is coming, Your Honor, but we do not
want to take advantage of the absence of the accused and his
defense counsel. We are willing to give them opportunity (sic)
to present their evidence.chanrobles lawlibrary : rednad
ATTY. FAJARDO:chanrob1es virtual 1aw library
Inasmuch as there are other cases to be heard by the Court this
morning, we might as well reset the hearing.
FISCAL PEREZ:chanrob1es virtual 1aw library
I suggest that we cancel the hearing scheduled for today and
also for tomorrow, September 28, 1990.
COURT:chanrob1es virtual 1aw library
What is your available calendar date?
(NOTE)
(The Fiscal, private prosecutor and the Court, after going over
their available calendar dates, finally agreed to call this case
again on October 4, 1990 at 11:00 A.M.)
COURT:chanrob1es virtual 1aw library
Upon suggestion of the prosecution, cancel the hearing
scheduled for today and tomorrow, September 28, 1990, and
reset the same to October 4, 1990, at 11:00 A.M. in order to
give the prosecution the last opportunity to present its
evidence. Fiscal Rodolfo Perez, and private prosecutor Atty.
Gamelo Fajardo are notified in open court. Furnish Atty.
Eutiquiano Bilocura, defense counsel, with a copy of this order.
Notify the accused and the private complainant." 3
Unfortunately, however, the case was still included in the trial
calendar of the court for 28 September 1990. When the case
was called for hearing on that date, only the Fiscal appeared for
the prosecution. The court then issued the following order
dismissing the case:jgc:chanrobles.com.ph
"ORDER
When this case was called for hearing today for the
presentation of evidence for the prosecution, only the Fiscal
appeared without his witnesses.
In view thereof, this case is hereby ordered DISMISSED for
failure to prosecute with costs de oficio.
Furnish the private complainant, the private prosecutor, defense
counsel and the accused each with a copy of this
Order.chanrobles law library
SO ORDERED." 4
Counsel for the petitioner, Atty. Eutiquiano Bilocura, received
a copy of this order on 4 October 1990. However, he received a
copy of the 27 September 1990 Order only on 15 June 1992. 5
391

The pleadings of the parties do not reveal what actually
transpired on 4 October 1990. In any event, the case was called
again on 31 May 1991, but the Court reset the hearing to 18,
22, 23 and 25 July 1991 on the ground that it had not yet
received from the Chief Justice of this Court a reply to the
Presiding Judge’s request for an extension of the trial dates. 6
On 2 July 1991, petitioner filed a Motion to Dismiss 7 alleging
therein that the dismissal of the case by the court on 28
September 1990 without his consent amounted to his acquittal;
hence, he would be placed in double jeopardy, prohibited under
Section 21, Article III of the New Constitution in relation to
Section 3(h), Rule 117 of the 1985 Rules of Criminal
Procedure, if the case were to be "reopened or
continued."cralaw virtua1aw library
The trial court set aside the dismissal order of 28 September
1990 in its Order of 9 August 1991 on the ground that the court
was only misled in issuing the same due to the stenographer’s
failure to transcribe the order given in open court issued the
previous day; hence, it was issued without due process.
Also on 9 August 1991, the court denied the petitioner’s
motion to dismiss on the ground that the order of dismissal of
28 September 1990 was set aside in the aforesaid order of 9
August 1991. 8
On 16 September 1991, petitioner filed a motion to reconsider
the order denying his motion to dismiss; he alleges therein that
he cannot be blamed or faulted for (a) any error in the dismissal
of the case, (b) the failure of the stenographer to type the order,
and (c) the inclusion of the case in the calendar of 28
September 1990. And even assuming arguendo that the court
erroneously dismissed the information, he asserts that in
accordance with this Court’s ruling in People v. Hernandez, 9
People v. Ferrer, 10 People v. Borja 11 and People v. Gil, 12
the reopening, continuation thereof or appeal therefrom by the
State will place him in double jeopardy.
In its Order of 18 September 1991, the court denied the
aforesaid motion for reconsideration by reiterating the reasons
upon which it anchored its denial order of 9 August 1991, and
holding that the cases abovecited are not applicable since they
involve dismissals grounded on lack of jurisdiction. 13
Hence this petition, filed on 2 October 1991, wherein petitioner
reiterates the issues raised and the arguments adduced before
the trial court and asks this Court to set aside the Orders of 9
August 1991 denying the motion to dismiss, and 18 September
1991 denying the motion for reconsideration, for having been
rendered without or in excess of jurisdiction or with grave
abuse of discretion amounting to lack of jurisdiction. 14
On 10 March 1992, after extensions of time were granted them,
public respondents, through the Office of the Solicitor General,
filed their Comment to the petition in compliance with the
Resolution of 6 November 1991. 15 They assert therein that the
order of dismissal of 28 September 1990 was a mistake and
was thus issued without due process as there was in fact no
hearing on that date, hence, the dismissal was null and void and
of no effect. Besides, petitioner did not object to the dismissal;
thus, he cannot invoke double jeopardy.
Petitioner filed, on 24 February 1992, 16 a Reply to the
Comment. In refutation of the public respondents’ assertion
392
that he did not object to the dismissal, petitioner maintains that
his silence or failure to object is not the express consent
contemplated by Section 7, Rule 117 of the Rules of Court that
would bar him from pleading double jeopardy.cralawnad
We resolved to give due course to the petition, consider the
Comment as the Answer and decide this case on the merits.
The petition must fail.
It is obvious to this Court that the trial court was, on 28
September 1990, divested of jurisdiction, pro hac vice, to issue
any order, much less one of dismissal, in Criminal Case No.
CBU-16727 for the simple reason that said case was already
effectively removed from its trial calendar for that date in view
of the previous day’s order cancelling the hearing of the case
on 27 and 28 September 1990. Plainly, the court should not
have included the case for hearing in the 28 September 1990
trial calendar. The respondent Court attributed the mistake to
the stenographer’s failure to immediately transcribe the order.
This, of course, is passing the buck too far.
The Judge, Clerk of Court and the prosecution should shoulder
the blame because unless amnesia suddenly struck all of them
simultaneously, it cannot be imagined that in a brief span of
about twenty-four (24) hours, they had all forgotten about the
order dictated in open court cancelling the hearing for 27 and
28 September 1990. For the prosecutor who orally moved for
such cancellation and the Judge himself who dictated the said
order, no plausible explanation may be offered for such lapse.
Apparently, the latter did not read the calendar before the start
of the session that day, and the branch clerk of court who
probably prepared the same one or two days earlier, did not
bother to review it anymore. And in the event that said clerk of
court failed to attend the session, he or she did not read the
minutes of the case as prepared by a subordinate. Upon the
other hand, the prosecutor literally slept on his duty when he
failed to immediately inform the court of the previous day’s
order of cancellation of hearing which obviously accounted for
the absence of both the witness and the private prosecutor, and
kept his unusual silence in the face of the open court dictation
of the order of dismissal. This ineptitude cannot be condoned.
Prosecutors should always be mindful of the heavy burden of
responsibility which they bear in prosecuting criminal cases
because they represent no less than the People of the
Philippines and the State.
The erroneous dismissal order of 28 September 1990 wad then
issued capriciously and arbitrarily; it unquestionably deprived
the State of a fair opportunity to present and prove its case.
Thus, its right to due process was violated. The said order is
null and void and hence, cannot be pleaded by the petitioner to
bar the subsequent annulment of the dismissal order or a re-
opening of the case on the ground of double jeopardy. This is
the rule obtaining in this jurisdiction.
In People v. Balisacan, 17 the accused at his arraignment
pleaded not guilty and was allowed to present mitigating
circumstances; he thus testified that he stabbed the deceased in
self-defense. The trial court thereafter, without receiving the
evidence for the prosecution, promulgated a decision acquitting
the accused; the prosecution appealed therefrom. We then
rejected the plea of double jeopardy therein not only because of
the fatal procedural flaw of failure to re-arraign the accused
after he, in effect, vacated his plea of guilty thus resulting in
393
the absence of a plea which is an essential element of double
jeopardy, but also because:jgc:chanrobles.com.ph
". . . the court a quo decided the case upon the merits without
giving the prosecution an opportunity to present its evidence or
even to rebut the testimony of the defendant. In doing so, it
clearly acted without due process of law. And for lack of this
fundamental prerequisite, its action is perforce null and void.
The acquittal, therefore, being a nullity for want of due process,
is no acquittal at all, and thus can not constitute a proper basis
for a claim of former jeopardy. (People v. Cabero, 61 Phil. 121;
21 Am. Jur. 2d. 235; McCleary v. Hudspeth, 124 Fed. 2d.
445)." chanrobles.com : virtual law library
In People v. Gomez, 18 where the motion of the Assistant City
Fiscal to postpone the hearing of a criminal case — because the
Special Prosecutor actively handling the case was not served
with a notice of the said hearing and the former was not ready
because the records were with the latter — was denied by the
respondent judge in open court, resulting in the eventual
dismissal of the case, this Court ruled that such dismissal was
capricious and rendered with grave abuse of discretion
amounting to an excess of jurisdiction, thus depriving the state
of a fair opportunity to prosecute and convict. Such a dismissal
order, made sua sponte, for no proper reason at all, is void for
being issued without authority.
In Serino v. Zosa, 19 where both the Assistant Provincial Fiscal
and private prosecutor were readily available, having merely
stepped out of the courtroom when the Judge announced that
he would first finish the trial of another case, but after said trial
was completed and the criminal case was called again, both
were not yet around, thus prompting the court to issue an order
dismissing the case for failure to prosecute, which it
nevertheless set aside on a motion for reconsideration, this
Court rejected the plea of double jeopardy on the ground that
the order of dismissal was null and void for lack of due
process, and hence was correctly set aside by the Judge
himself.
In People v. Navarro, 20 this Court nullified a judgment of
acquittal in a criminal case for light threats which was
erroneously decided together with a case for frustrated theft
against the same accused in a joint decision, despite the fact
that there was no joint trial in said cases and no hearing had as
yet been conducted in the light threats case, because in
rendering the judgment in the latter, the Judge acted with abuse
of discretion amounting to excess or lack of jurisdiction. It is
therefore null and void ab initio. Having been rendered by a
court which had no power to do so, it is as though there had
been no judgment; it is coram non judice.
In People v. Pablo, 21 this Court struck down as having been
issued with grave abuse of discretion amounting to lack of
jurisdiction an order of the court acquitting the accused, later
on amended to be merely one of dismissal of the case, issued
when the prosecution asked for a postponement upon its
inability to produce its last but vital and indispensable witness
who would have testified on the cause of death of the victim,
the subpoena for whom was received by his secretary, despite
the fact that five (5) witnesses for the prosecution had already
testified. Said order could not be used to invoke double
jeopardy.
In People v. Bocar, 22 where after the accused entered their
plea of not guilty, the Judge, instead of receiving the evidence
394
for the prosecution, conducted a summary investigation by
directing questions to both the complainant and the accused
and at the end thereof, issued an order dismissing the case on
the ground that it is more civil than criminal, this Court ruled
that since no evidence in law had as yet been entered into the
records of the case, the dismissal order was arbitrary,
whimsical and capricious — a veritable abuse of discretion
which this Court cannot permit.
In Saldana v. Court of Appeals, 23 where the trial judge had
earlier issued an order sustaining the objection of the defense to
the presentation of one Linel Garcia Cuevas on the ground that
being a mere member of the complaining Valle Verde Bagong
Lipunan Community Association, Inc., he cannot be considered
as the complainant, and thereafter not only denied a motion to
reconsider the said order but also barred the prosecution from
presenting other members of the association from testifying
and thereupon terminated the presentation of the prosecution,
and, acting on a notion to dismiss the case for insufficiency of
evidence, dismissed the case on said ground, this Court
sustained the decision of the Court of Appeals annulling the
said order and reinstating the criminal case in a petition for
certiorari brought before the latter.cralawnad
Coming back to the instant case, the dismissal order of 28
September 1990 being null and void because the trial court lost
its jurisdiction to issue the same and violated the right of the
prosecution to due process, it follows that Criminal Case No.
CBU-16726 continues to remain at that stage before the said
order was issued. Consequently, the first jeopardy was not
terminated and no second jeopardy threatened the accused.
The three (3) requisites of double jeopardy are: (1) a first
jeopardy must have attached prior to the second, (2) the first
jeopardy must have been validly terminated, and (3) a second
jeopardy must be for the same offense as that in the first. Legal
jeopardy attaches only (a) upon a valid indictment, (b) before a
competent court, (c) after arraignment, (d) when a valid plea
has been entered, and (e) when the case was dismissed or
otherwise terminated without the express consent of the
accused. 24
It having been shown that in this case, the requisites of a valid
termination of the first jeopardy are not present, the petitioner
cannot hide behind the protective mantle of double
jeopardy.chanrobles.com : virtual law library
WHEREFORE, the petition is DISMISSED for lack of merit.
The respondent Court is hereby directed to immediately place
in its trial calendar Criminal Case No. CBU-16726 for the
reception of the evidence of the parties and thereafter to decide
the same.
395

G.R. No. L-66132 June 27, 1988
DR. FELIX ABAY, SR. AND FELIX ABAY, JR., petitioners,
vs.
The HON. FELINO A. GARCIA, Acting City Judge, City of
Bacolod (now Municipal Trial Court); PEOPLE OF THE
PHILIPPINES, Represented by the City Fiscal, Bacolod City,
RAMIRO GARQUE and THE INTERMEDIATE
APPELLATE COURT, SECOND SPECIAL CASES
DIVISION, respondents.
MEDIALDEA, J.:
This is a petition for review under Rule 45 of the Rules of
Court of the decision of the Intermediate Appellate Court (now
Court of Appeals) dated April 15, 1983, affirming the decision
of the Court of First Instance (now Regional Trial Court) at
Bacolod City, dismissing the petition for certiorari which
sought to annul and set aside the order of the City Court at
Bacolod City, dated July 1, 1977, in Criminal Case No. 29688.
The following antecedent facts are undisputed:
On May 21, 1973, Criminal Case No. 29688 for direct assault
upon an agent of a person in authority was filed against Felix
Abay, Sr., Felix Abay, Jr., and two other accused. Accused
Felix Abay, Sr. and Felix Abay, Jr. were duly arraigned on
May 27, 1975, and both pleaded not guilty. Trial commenced
on July 26, 1976, with Ramiro Garque testifying on direct
examination and partly on cross-examination. The trial was
transferred to September 14, 1976. But again the cross-
examination was not terminated so the case was reset to July 1,
1977.
At the continuation of the trial on July 1, 1977, both accused
appeared without their counsel. The trial fiscal, Assistant Fiscal
Angel Lobaton, was present, but the complainant, Garque who
was still to be cross-examined, failed to appear despite due
notice. The private prosecutor, Atty. Henry Trocino, also failed
to appear. Whereupon, City Judge Felino Garcia verbally
ordered, motu proprio, the dismissal of the case. Fiscal Lobaton
did not object to the dismissal. Both accused remained silent
and later left the courtroom after the judge dictated the order of
dismissal.
396
At about 10:00 o'clock in the morning of the same day, Atty.
Trocino, together with Garque arrived in court and upon
learning that Criminal Case No. 29688 was ordered dismissed,
verbally moved to have the order of dismissal set aside.
In the presence of special counsel Navarro, Atty. Trocino was
allowed to present evidence in support of the verbal motion for
reconsideration and to explain the failure of Garque to appear
on time. In his written order of July 1, 1977, Judge Garcia
granted the verbal motion for reconsideration and set aside the
verbal order of dismissal. He further ordered the resetting of
the case for hearing on another date.
Subsequently, the accused, through counsel, filed a motion for
reconsideration of the order of July 1, 1977, invoking double
jeopardy, claiming that the verbal order of dismissal, even if
provisional, was rendered without the express consent of the
accused. The motion for reconsideration was denied, after
which the accused filed a petition for certiorari, which sought
to annul and set aside the order of the City Court dated July 1,
1977, with the Court of First Instance at Bacolod City, with
Judge Jose L. Coscolluela, Jr., presiding.
On October 13, 1981, Judge Coscolluela dismissed the petition.
The judge upheld the questioned written order of July 1, 1977
on the ground that the earlier verbal order of dismissal was not
final, in fact, was ineffective, because it left something to be
done in line with the decision of this Court in Cabarroguis vs.
San Diego, L-19517, November 30, 1962, 6 SCRA 866. This
Court in said case ruled:
Petitioner's pretense is untenable. The verbal order of dismissal
of said case was withdrawn or set aside, as soon as it was
dictated by respondent and before it could be reduced to
writing and signed by her. As a matter of fact, it was never put
in writing. Much less was it ever signed by respondent. For this
reason, respondent contended that said order of dismissal was
incomplete and did not have the effect of acquitting the
accused before it was withdrawn. Indeed, pursuant to section 2
of Rule 116 of he Rules of Court, "the judgment" — and the
order of dismissal in question had, it completed, such effect—
"must be written ... personally and directly prepared by the
judge, and signed by him. ...— The cases * cited by herein
petitioner involved written orders of dismissal, which were
signed by the corresponding judges. Hence, said cases are not
controlling in the one at bar.
On April 15, 1983, the respondent Court of Appeals, in
affirming the decision rendered by Judge Coscolluela, said:
It is argued by appellants that the verbal order of dismissal, not
having been based on the merits of the case, but on the failure
of the complainant to appear, the ruling in the San Diego case
is not applicable, considering that the term 'judgment' as used
in section 1, Rule 120 of the Rules of Court means the
adjudication by the court that the defendant is guilty or is not
guilty of the offense charged, and the imposition of the penalty
provided for by law on the defendant, who pleads or is found
guilty thereof. But it must be remembered that in the San Diego
case, the Supreme Court through the ponente, Justice Roberto
Concepcion, did not distinguish as to whether the judgment
was based on the merits or not.
We fully agree with the findings of the respondent court.
Where there is a valid information and the accused has been
arraigned, an order of dismissal issued by the court, motu
397
proprio, in the course of a trial of a criminal case, whether
based on the merits or for failure of prosecution witnesses to
appear, has the effect of a judgment of acquittal and double
jeopardy attaches. The order is also immediately executory.
However, this order of dismissal must be written in the official
language, personally and directly prepared by the judge and
signed by him conformably with the provisions of Rule 120,
section 2 of the Rules of Court (now Rule 120, section 2 of the
1985 Rules on Criminal Procedure). In the instant case, it is
very clear that the order was merely dictated in open court by
the trial judge. There is now? showing that this verbal order of
dismissal was ever reduced to writing and duly signed by him.
Thus, it did not yet attain the effect of a judgment of acquittal,
so that it was still within the powers of the judge to set it aside
and enter another order, now in writing and duly signed by
him, reinstating the case.

ACCORDINGLY, the petition is DENIED; the appealed

decision of the Court of Appeals is hereby affirmed. Costs
against the petitioner.

This decision is immediately executory.

Narvasa, Cruz, Gancayco and Griño-Aquino, JJ., concur.

398

G.R. No. 164185 July 23, 2008
PEOPLE OF THE PHILIPPINES, Petitioner,
vs.
THE SANDIGANBAYAN (FOURTH DIVISION) and
ALEJANDRO A. VILLAPANDO, Respondents.
DECISION
QUISUMBING, J.:
This petition for certiorari filed by the Office of the
Ombudsman through the Office of the Special Prosecutor
assails the May 20, 2004 Decision1 of the Sandiganbayan,
Fourth Division, in Criminal Case No. 27465, granting private
respondent Alejandro A. Villapando’s Demurrer to Evidence2
and acquitting him of the crime of unlawful appointment under
Article 2443 of the Revised Penal Code.
The facts culled from the records are as follows:
During the May 11, 1998 elections, Villapando ran for
Municipal Mayor of San Vicente, Palawan. Orlando M. Tiape
(now deceased), a relative of Villapando’s wife, ran for
Municipal Mayor of Kitcharao, Agusan del Norte. Villapando
won while Tiape lost. Thereafter, on July 1, 1998, Villapando
designated Tiape as Municipal Administrator of the
Municipality of San Vicente, Palawan.4 A Contract of
Consultancy5 dated February 8, 1999 was executed between
the Municipality of San Vicente, Palawan and Tiape whereby
the former employed the services of Tiape as Municipal
Administrative and Development Planning Consultant in the
Office of the Municipal Mayor for a period of six months from
January 1, 1999 to June 30, 1999 for a monthly salary of
₱26,953.80.
On February 4, 2000, Solomon B. Maagad and Renato M.
Fernandez charged Villapando and Tiape for violation of
Article 244 of the Revised Penal Code before the Office of the
Deputy Ombudsman for Luzon.6 The complaint was resolved
against Villapando and Tiape and the following Information7
dated March 19, 2002 charging the two with violation of
Article 244 of the Revised Penal Code was filed with the
Sandiganbayan:
xxxx
399
That on or about 01 July 1998 or sometime prior or subsequent
thereto, in San Vicente, Palawan, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused,
ALEJANDRO A. VILLAPANDO, a public officer, being then
the Municipal Mayor of San Vicente, Palawan, committing the
crime herein charged, in relation to and taking advantage of his
official functions, conspiring and confederating with accused
Orlando M. Tiape, did then and there wilfully, unlawfully and
feloniously appoint ORLANDO M. TIAPE as a Municipal
Administrator of San Vicente, Palawan, accused Alejandro A.
Villapando knowing fully well that Orlando Tiape lacks the
qualification as he is a losing mayoralty candidate in the
Municipality of Kitcharao, Agusan del Norte during the May
1998 elections, hence is ineligible for appointment to a public
office within one year (1) from the date of the elections, to the
damage and prejudice of the government and of public interest.
CONTRARY TO LAW.8
The Information was docketed as Criminal Case No. 27465 and
raffled to the Fourth Division of the Sandiganbayan.
Upon arraignment on September 3, 2002, Villapando pleaded
not guilty. Meanwhile, the case against Tiape was dismissed
after the prosecution proved his death which occurred on July
26, 2000.9
After the prosecution rested its case, Villapando moved for
leave to file a demurrer to evidence. The Sandiganbayan,
Fourth Division denied his motion but gave him five days
within which to inform the court in writing whether he will
nonetheless submit his Demurrer to Evidence for resolution
without leave of court.10 Villapando then filed a Manifestation
of Intent to File Demurrer to Evidence,11 and was given 15
days from receipt to file his Demurrer to Evidence. He filed his
Demurrer to Evidence12 on October 28, 2003.
In a Decision dated May 20, 2004, the Sandiganbayan, Fourth
Division found Villapando’s Demurrer to Evidence
meritorious, as follows:
The Court found the "Demurrer to Evidence" impressed with
merit.
Article 244 of the Revised Penal Code provides:
Article 244. Unlawful appointments.–Any public officer who
shall knowingly nominate or appoint to any public office any
person lacking the legal qualifications therefor, shall suffer the
penalty of arresto mayor and a fine not exceeding 1,000 pesos.
(underscoring supplied)
A dissection of the above-cited provision [yields] the following
elements, to wit:
1. the offender was a public officer;
2. accused nominated or appointed a person to a public office;
3. such person did not have the legal qualifications [therefor;]
and,
4. the offender knew that his nominee or appointee did not
have the legal qualifications at the time he made the
nomination or appointment.
400
Afore-cited elements are hereunder discussed.
1. Mayor Villapando was the duly elected Municipal Mayor of
San Vicente, Palawan when the alleged crime was committed.
2. Accused appointed Orlando Tiape as Municipal
Administrator of the Municipality of San Vicente, Palawan.
3. There appears to be a dispute. This Court is now called upon
to determine whether Orlando Tiape, at the time of [his]
designation as Municipal Administrator, was lacking in legal
qualification. Stated differently, does "legal qualification"
contemplate the one (1) year prohibition on appointment as
provided for in Sec. 6, Art. IX-B of the Constitution and Sec.
94 (b) of the Local Government Code, mandating that a
candidate who lost in any election shall not, within one year
after such election, be appointed to any office in the
Government?
The Court answers in the negative.
In ascertaining the legal qualifications of a particular appointee
to a public office, "there must be a law providing for the
qualifications of a person to be nominated or appointed"
therein. To illuminate further, Justice Rodolfo Palattao
succinctly discussed in his book that the qualification of a
public officer to hold a particular position in the government is
provided for by law, which may refer to educational
attainment, civil service eligibility or experience:
As the title suggests, the offender in this article is a public
officer who nominates or appoints a person to a public office.
The person nominated or appointed is not qualified and his lack
of qualification is known to the party making the nomination or
appointment. The qualification of a public officer to hold a
particular position in the government is provided by law. The
purpose of the law is to ensure that the person appointed is
competent to perform the duties of the office, thereby
promoting efficiency in rendering public service.
The qualification to hold public office may refer to educational
attainment, civil service eligibility or experience. For instance,
for one to be appointed as judge, he must be a lawyer. So if the
Judicial and Bar Council nominates a person for appointment
as judge knowing him to be not a member of the Philippine
Bar, such act constitutes a violation of the law under
consideration.
In this case, Orlando Tiape was allegedly appointed to the
position of Municipal Administrator. As such, the law that
provides for the legal qualification for the position of municipal
administrator is Section 480, Article X of the Local
Government Code, to wit:
"Section 480. Qualifications, Terms, Powers and Duties.–(a)
No person shall be appointed administrator unless he is a
citizen of the Philippines, a resident of the local government
unit concerned, of good moral character, a holder of a college
degree preferably in public administration, law, or any other
related course from a recognized college or university, and a
first grade civil service eligible or its equivalent. He must have
acquired experience in management and administration work
for at least five (5) years in the case of the provincial or city
administrator, and three (3) years in the case of the municipal
administrator.
401
xxx xxx x x x"
It is noteworthy to mention that the prosecution did not allege
much less prove that Mayor Villapando’s appointee, Orlando
Tiape, lacked any of the qualifications imposed by law on the
position of Municipal Administrator. Prosecution’s argument
rested on the assertion that since Tiape lost in the May 11, 1998
election, he necessarily lacked the required legal qualifications.
It bears stressing that temporary prohibition is not synonymous
with absence or lack of legal qualification. A person who
possessed the required legal qualifications for a position may
be temporarily disqualified for appointment to a public position
by reason of the one year prohibition imposed on losing
candidates. Upon the other hand, one may not be temporarily
disqualified for appointment, but could not be appointed as he
lacked any or all of the required legal qualifications imposed
by law.
4. Anent the last element, this Court deems it unnecessary to
discuss the same.
WHEREFORE, finding the "Demurrer to Evidence" filed by
Mayor Villapando with merit, the same is hereby GRANTED.
Mayor Villapando is hereby ACQUITTED of the crime
charged.
SO ORDERED.13
Thus, this petition by the Office of the Ombudsman, through
the Office of the Special Prosecutor, representing the People of
the Philippines.
Villapando was required by this Court to file his comment to
the petition. Despite several notices, however, he failed to do
so and in a Resolution14 dated June 7, 2006, this Court
informed him that he is deemed to have waived the filing of his
comment and the case shall be resolved on the basis of the
pleadings submitted by the petitioner.
Petitioner raises the following issues:
I.
WHETHER THE RESPONDENT COURT ACTED WITH
GRAVE ABUSE OF DISCRETION AMOUNTING TO
LACK OF OR EXCESS OF JURISDICTION IN
INTERPRETING THAT THE "LEGAL
DISQUALIFICATION" IN ARTICLE 244 OF THE REVISED
PENAL CODE DOES NOT INCLUDE THE ONE YEAR
PROHIBITION IMPOSED ON LOSING CANDIDATES AS
ENUNCIATED IN THE CONSTITUTION AND THE
LOCAL GOVERNMENT CODE.
II.
WHETHER THE RESPONDENT COURT ACTED WITH
GRAVE ABUSE OF DISCRETION AMOUNTING TO
LACK OF OR EXCESS OF JURISDICTION IN GIVING
DUE COURSE TO, AND EVENTUALLY GRANTING, THE
DEMURRER TO EVIDENCE.15
Simply, the issue is whether or not the Sandiganbayan, Fourth
Division, acted with grave abuse of discretion amounting to
lack or excess of jurisdiction.
402
Petitioner argues that the Sandiganbayan, Fourth Division
acted with grave abuse of discretion amounting to lack or
excess of jurisdiction because its interpretation of Article 244
of the Revised Penal Code does not complement the provision
on the one-year prohibition found in the 1987 Constitution and
the Local Government Code, particularly Section 6, Article IX
of the 1987 Constitution which states no candidate who has lost
in any election shall, within one year after such election, be
appointed to any office in the government or any government-
owned or controlled corporation or in any of their subsidiaries.
Section 94(b) of the Local Government Code of 1991, for its
part, states that except for losing candidates in barangay
elections, no candidate who lost in any election shall, within
one year after such election, be appointed to any office in the
government or any government-owned or controlled
corporation or in any of their subsidiaries. Petitioner argues
that the court erred when it ruled that temporary prohibition is
not synonymous with the absence of lack of legal qualification.
The Sandiganbayan, Fourth Division held that the
qualifications for a position are provided by law and that it may
well be that one who possesses the required legal qualification
for a position may be temporarily disqualified for appointment
to a public position by reason of the one-year prohibition
imposed on losing candidates. However, there is no violation of
Article 244 of the Revised Penal Code should a person
suffering from temporary disqualification be appointed so long
as the appointee possesses all the qualifications stated in the
law.
There is no basis in law or jurisprudence for this interpretation.
On the contrary, legal disqualification in Article 244 of the
Revised Penal Code simply means disqualification under the
law. Clearly, Section 6, Article IX of the 1987 Constitution and
Section 94(b) of the Local Government Code of 1991 prohibits
losing candidates within one year after such election to be
appointed to any office in the government or any government-
owned or controlled corporations or in any of their subsidiaries.
Article 244 of the Revised Penal Code states:
Art. 244. Unlawful appointments. — Any public officer who
shall knowingly nominate or appoint to any public office any
person lacking the legal qualifications therefore, shall suffer the
penalty of arresto mayor and a fine not exceeding 1,000 pesos.
Section 94 of the Local Government Code provides:
SECTION 94. Appointment of Elective and Appointive Local
Officials; Candidates Who Lost in Election. - (a) No elective or
appointive local official shall be eligible for appointment or
designation in any capacity to any public office or position
during his tenure.
Unless otherwise allowed by law or by the primary functions of
his position, no elective or appointive local official shall hold
any other office or employment in the government or any
subdivision, agency or instrumentality thereof, including
government-owned or controlled corporations or their
subsidiaries.
(b) Except for losing candidates in barangay elections, no
candidate who lost in any election shall, within one (1) year
after such election, be appointed to any office in the
government or any government-owned or controlled
corporations or in any of their subsidiaries.
403
Section 6, Article IX-B of the 1987 Constitution states:
Section 6. No candidate who has lost in any election shall,
within one year after such election, be appointed to any office
in the Government or any Government-owned or controlled
corporations or in any of their subsidiaries.
Villapando’s contention and the Sandiganbayan, Fourth
Division’s interpretation of the term legal disqualification lack
cogency. Article 244 of the Revised Penal Code cannot be
circumscribed lexically. Legal disqualification cannot be read
as excluding temporary disqualification in order to exempt
therefrom the legal prohibitions under Section 6, Article IX of
the 1987 Constitution and Section 94(b) of the Local
Government Code of 1991.
Although this Court held in the case of People v.
Sandiganbayan16 that once a court grants the demurrer to
evidence, such order amounts to an acquittal and any further
prosecution of the accused would violate the constitutional
proscription on double jeopardy, this Court held in the same
case that such ruling on the matter shall not be disturbed in the
absence of a grave abuse of discretion.1avvphi1
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.17
In this case, the Sandiganbayan, Fourth Division, in
disregarding basic rules of statutory construction, acted with
grave abuse of discretion. Its interpretation of the term legal
disqualification in Article 244 of the Revised Penal Code defies
legal cogency. Legal disqualification cannot be read as
excluding temporary disqualification in order to exempt
therefrom the legal prohibitions under the 1987 Constitution
and the Local Government Code of 1991. We reiterate the legal
maxim ubi lex non distinguit nec nos distinguere debemus.
Basic is the rule in statutory construction that where the law
does not distinguish, the courts should not distinguish. There
should be no distinction in the application of a law where none
is indicated.
Further, the Sandiganbayan, Fourth Division denied
Villapando’s Motion for Leave to File Demurrer to Evidence
yet accommodated Villapando by giving him five days within
which to inform it in writing whether he will submit his
demurrer to evidence for resolution without leave of court.
Notably, a judgment rendered with grave abuse of discretion or
without due process is void, does not exist in legal
contemplation and, thus, cannot be the source of an acquittal.18
The Sandiganbayan, Fourth Division having acted with grave
abuse of discretion in disregarding the basic rules of statutory
construction resulting in its decision granting Villapando’s
Demurrer to Evidence and acquitting the latter, we can do no
less but declare its decision null and void.
WHEREFORE, the petition is GRANTED. The Decision dated
May 20, 2004 of the Sandiganbayan, Fourth Division, in
404
Criminal Case No. 27465, granting private respondent
Alejandro A. Villapando’s Demurrer to Evidence and
acquitting him of the crime of unlawful appointment under
Article 244 of the Revised Penal Code is hereby declared
NULL and VOID. Let the records of this case be remanded to
the Sandiganbayan, Fourth Division, for further proceedings.
G.R. No. L-24447 June 29, 1968
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellant,
vs.
WILLY OBSANIA, defendant-appellee.
Office of the Solicitor General for plaintiff-appellant.
Maximo V. Cuesta, Jr. for defendant-appellee.
CASTRO, J.:
Before us for review, on appeal by the People of the Philippines,
is an order, dated January 8, 1965, of the Court of First Instance
of Pangasinan dismissing, upon motion of the defense, an
indictment for rape against Willy Obsania.
On November 22, 1964, barely a day after the occurence of the
alleged crime, Erlinda Dollente, the 14-year old victim, and her
parents, Ciriaco Dollente and Carmelita Lureta, filed in the
municipal court of Balungao, Pangasinan a complaint for rape
with robbery, 1 alleging
That on or about the 21st day of November 1964, at around 2:00
to 3:00 in the afternoon, particularly in sitio Cawakalan, barrio
of Capulaan, municipality of Balungao, Province of Pangasinan,
Philippines and within the jurisdiction of the Honorable Court,
the said accused Willy Obsania, armed with a dagger, by means
of violence and intimidation, willfully, unlawfully and
feloniously did then and there have carnal knowledge of the
complainant Erlinda Dollente, against her will and on the
roadside in the ricefields at the above-mentioned place while she
was alone on her way to barrio San Raymundo.
After the case was remanded to the Court of First Instance of
Pangasinan for further proceedings, the assistant provincial
fiscal filed an information for rape against the accused,
embodying the allegations of the above complaint, with an
additional averment that the offense was committed "with lewd
designs".
The accused pleaded not guilty upon arraignment, and forthwith
his counsel moved for the dismissal of the case, contending that
the complaint was fatally defective for failure to allege "lewd
designs" and that the subsequent information filed by the fiscal
which averred "lewd designs" did not cure the jurisdictional
infirmity. The court a quo granted the motion and ordered
dismissal of the action, ruling that "the failure of the complaint
filed by the offended party to allege that the acts committed by
the accused were with 'lewd designs' does not give this Court
405
jurisdiction to try the case." From this order, the fiscal brought
the instant appeal.
Two issues are tendered for resolution, namely: first, are "lewd
designs" an indispensable element which should be alleged in
the complaint?, and, second, does the present appeal place the
accused in double jeopardy?
Both must be answered in the negative.
The accused, in his motion to dismiss, as well as the trial judge,
in his order of dismissal, rely basically on the ruling in People
vs. Gilo (L-18202, April 30, 1964). In the case which involved
a prosecution for acts of lasciviousness this Court, in passing,
opined that "lewd design" is
... an indispensable element of all crimes against chastity, such
as abduction, seduction and rape, including acts of
lasciviousness ... an element that characterizes all crimes against
chastity, apart from the felonious or criminal intent of the
offender, and such element must be always present in order that
they may be considered in contemplation of law.
Nothing in the foregoing statement can be reasonably interpreted
as requiring an explicit allegation of "lewd design" in a
complaint for rape. We hold in no uncertain terms that in a
complaint for rape it is not necessary to allege "lewd design" or
"unchaste motive", for to require such averment is to demand a
patent superfluity. Lascivious intent inheres in rape and the
unchaste design is manifest in the very act itself — the carnal
knowledge of a woman through force or intimidation, or when
the woman is deprived of reason or otherwise unconscious, or
when the woman is under twelve years of age. 2
It is clear that the complaint here satisfies the requirements of
legal sufficiency of an indictment for rape as it unmistakably
alleges that the accused had carnal knowledge of the
complainant by means of violence and intimidation. We
therefore hold that the trial judge erred in dismissing the case on
the proffered grounds that the complaint was defective for
failure to allege "lewd design" and, as a consequence of such
infirmity, that the court a quo did not acquire jurisdiction over
the case. The error of the trial judge was in confusing the concept
of jurisdiction with that of insufficiency in substance of an
indictment.
We come now to the more important issue of double jeopardy.
The accused maintains that "assuming, arguendo, that the
argument is right that the court a quo has jurisdiction, the appeal
of the Government constitutes double jeopardy."
An appeal by the prosecution in a criminal case is not available
if the defendant would thereby be placed in double jeopardy. 3
Correlatively, section 9, Rule 117 of the Revised Rules of Court
provides:
When a defendant shall have been convicted or acquitted, or the
case against him dismissed or otherwise terminated without the
express consent of the defendant, by a court of competent
jurisdiction, upon a valid complaint or information or other
formal charge sufficient in form and substance to sustain a
conviction, and after the defendant had pleaded to the charge,
the conviction or acquittal of the defendant or the dismissal of
the case shall be a bar to another prosecution for the offense
charged, or for any attempt to commit the same or frustration
thereof, or for any offense which necessarily includes or is
406
necessarily included in the offense charged in the former
complaint or information.
In order that the protection against double jeopardy may inure in
favor of an accused, the following requisites must have obtained
in the original prosecution: (a) a valid complaint or information;
(b) a competent court; (c) the defendant had pleaded to the
charge; and (d) the defendant was acquitted, or convicted, or the
case against him was dismissed or otherwise terminated without
his express consent.
The complaint filed with the municipal court in the case at bar
was valid; the court a quo was a competent tribunal with
jurisdiction to hear the case; the record shows that the accused
pleaded not guilty upon arraignment. Hence, the only remaining
and decisive question is whether the dismissal of the case was
without the express consent of the accused.
The accused admits that the controverted dismissal was ordered
by the trial judge upon his motion to dismiss. However, he
vehemently contends that under the prevailing jurisprudence,
citing People vs. Bangalao, et al. (94 Phil. 354, February 17,
1954), People vs. Labatete (L-12917, April 27, 1960), People vs.
Villarin (L-19795, July 31, 1964), and People vs. Cloribel (L-
20314, August 31, 1964), an erroneous dismissal of a criminal
action, even upon the instigation of the accused in a motion to
quash or dismiss, does not bar him from pleading the defense of
double jeopardy in a subsequent appeal by the Government or in
a new prosecution for the same offense. The accused suggests
that the above-enumerated cases have abandoned the previous
ruling of this Court to the effect that when a case is dismissed,
other than on the merits, upon motion of the accused personally
or through counsel, such dismissal is to be regarded as with the
express consent of the accused and consequently he is deemed
to have waived 4 his right to plead double jeopardy and/or he is
estopped 5 from claiming such defense on appeal by the
Government or in another indictment for the same offense.
This particular aspect of double jeopardy — dismissal or
termination of the original case without the express consent of
the defendant — has evoked varied and apparently conflicting
rulings from this Court. We must untangle this jurisprudential
maze and fashion out in bold relief a ruling not susceptible of
equivocation. Hence, a searching extended review of the
pertinent cases is imperative.
The doctrine of waiver of double jeopardy was enunciated and
formally labelled as such for the first time in 1949 in People vs.
Salico, supra, with three justices dissenting. 6 In that case, the
provincial fiscal appealed from the order of the trial court
dismissing, upon motion of the defendant made immediately
after the prosecution had rested its case, an indictment for
homicide, on the ground that the prosecution had failed to prove
that the crime was committed within the territorial jurisdiction
of the trial court, or, more specifically, that the municipality of
Victorias in which the crime was allegedly committed was
compromised within the province of Negros Occidental.
Rejecting the claim of the accused that the appeal placed him in
double jeopardy, this Court held that the dismissal was
erroneous because the evidence on record showed that the crime
was committed in the town of Victorias and the trial judge
should have taken judicial notice that the said municipality was
included within the province of Negros Occidental and therefore
the offense charged was committed within the jurisdiction of the
court of first instance of the said province. In ruling that the
appeal by the Government did not put the accused in peril of a
407
second jeopardy, this Court stressed that with "the dismissal of
the case by the court below upon motion of the defendant, the
latter has not been in jeopardy," and "assuming, arguendo, that
the defendant had been already in jeopardy in the court below
and would be placed in double jeopardy by the appeal, the
defendant has waived his constitutional right not to be put in
danger of being convicted twice for the same offense." Mr.
Justice Felicisimo Feria, speaking for the majority, reasoned that
... when the case is dismissed with the express consent of the
defendant, the dismissal will not be a bar to another prosecution
for the same offense; because, his action in having the case
dismissed constitutes a waiver of his constitutional right or
privilege, for the reason that he thereby prevents the court from
proceeding to the trial on the merits and rendering a judgment of
conviction against him.
The Salico doctrine was adhered to and affirmed in People vs.
Marapao (85 Phil. 832, March 30, 1950), Gandicela vs. Lutero
(88 Phil. 299, March 5, 1951), People vs. Pinuela, et al. (91 Phil.
53, March 28, 1952), Co Te Hue vs. Encarnacion (94 Phil. 258,
January 26, 1954), and People vs. Desalisa (L-15516, December
17, 1966).
In Marapao, the defendant was indicted for slight physical
injuries in the municipal court of Sibonga, Cebu. After the
prosecution had rested its case, a continuance was had, and when
trial was resumed, the court, upon motion of the defense, ordered
the case dismissed for failure of the prosecution to appear.
However, the court reconsidered this order upon representation
of the fiscal who appeared moments later, and ordered the
defense to present its evidence. The accused moved to get aside
the latter order on the ground that it placed him in double
jeopardy. Acceding to this motion, the court dismissed the case.
Subsequently, the accused was charged in the Court of First
Instance of Cebu with the offense of assault upon a person in
authority, based on the same facts alleged in the former
complaint for slight physical injuries. Again, upon motion of the
accused, the trial court dismissed the new indictment on the
ground of double jeopardy. From this order, the prosecution
appealed. In upholding the appeal of the Government, this Court
observed that although the information for assault necessarily
embraced the crime of slight physical injuries for which the
accused was indicted in the justice of the peace court,
... it appears that the appellee was neither convicted nor acquitted
of the previous charge against him for slight physical injuries,
for that case was dismissed upon his own request before trial
could be finished. Having himself asked for such dismissal,
before a judgment of conviction or acquittal could have been
rendered, the appellee is not entitled to invoke the defense of
double jeopardy...
In Gandicela, this Court had occasion to reiterate the Salico
ruling:
But where a defendant expressly consents to, by moving for, the
dismissal of the case against him, as in the present case, even if
the court or judge states in the order that the dismissal is definite
or does not say that the dismissal is without prejudice on the part
of the fiscal to file another information, the dismissal will not be
a bar to a subsequent prosecution of the defendant for the same
offense. (People vs. Ylagan, 58 Phil. 851; People vs. Salico, 84
Phil. 722.).
408
And in denying the motion for reconsideration filed by the
accused in that case, this Court held:
According to Section 9 of Rule 13, if a criminal case is dismissed
otherwise than upon the merits at any stage before judgment,
without the express consent of the defendant, by a court of
competent jurisdiction, upon a valid complaint or information,
and after the defendant has pleaded to the charge, the dismissal
of the case shall be definite or a bar to another prosecution for
the same offense; but if it is dismissed upon the petition or with
the express consent of the defendant, the dismissal will be
without prejudice or not a bar to another prosecution for the
same offense, because, in the last case, the defendant's action in
having the case dismissed constitutes a waiver of his
constitutional right not to be prosecuted again for the same
offense.
In Pinuela, as in Salico, the prosecution had presented its
evidence against the defendant, and the trial court, upon motion
of the accused, dismissed the criminal action for lack of evidence
showing that the crime charged was committed within its
territorial jurisdiction. On appeal by the Government, this Court
found that the evidence showed otherwise and, like in Salico, the
majority rejected the plea of double jeopardy interposed by the
accused on the ground that his virtual instigation of the
erroneous dismissal amounted to a waiver of his right against a
second jeopardy.
In Co Te Hue, it was the theory of the petitioner that the charge
of estafa filed against him having been dismissed, albeit
provisionally, without his express consent, its revival constituted
double jeopardy which bars a subsequent prosecution for the
same offense. This claim was traversed by the Solicitor General
who contended that considering what had transpired in the
conference between the parties, the provisional dismissal was no
bar to the subsequent prosecution for the reason that the
dismissal was made with the defendant's express consent. This
Court sustained the view of the Solicitor General, thus:
We are inclined to uphold the view of the Solicitor General.
From the transcript of the notes taken at the hearing in
connection with the motion for dismissal, it appears that a
conference was held between petitioner and the offended party
in the office of the fiscal concerning the case and that as a result
of that conference the offended party filed the motion to dismiss.
It also appears that as no action has been taken on said motion,
counsel for petitioner invited the attention of the court to the
matter who acted thereon only after certain explanation was
given by said counsel. And when the order came the court made
it plain that the dismissal was merely provisional in character. It
can be plainly seen that the dismissal was effected not only with
the express consent of the petitioner but even upon the urging of
his counsel. This attitude of petitioner, or his counsel, takes this
case out of the operation of the rule.
In essence, this Court held that where a criminal case is
dismissed provisionally not only with the express consent of the
accused but even upon the urging of his counsel, there can be no
double jeopardy under section 9, Rule 113, if the indictment
against him is revived by the fiscal. This decision subscribes
substantially to the doctrine on waiver established in Salico.
The validity and currency of the Salico doctrine were intimated
in the recent case of People vs. Fajardo (L-18257, June 29,
1966), and six months later were reaffirmed in People vs.
Desalisa, supra.
409

In Fajardo, this Court, through Mr. Justice Querube Makalintal,
observed:
The record does not reveal that appellees expressly agreed to the
dismissal of the information as ordered by the trial Judge or that
they performed any act which could be considered as express
consent within the meaning of the rule. While they did file a
motion asking that the case be quashed or that a reinvestigation
thereof be ordered, the court granted neither alternative. What it
did was to order the prosecution to amend the complaint. This
order was in effect a denial of the motion to quash, and it was
only after the prosecution failed to amend that the court
dismissed the case on that ground. Consequently, even under the
theory enunciated in some decisions of this Court (People vs.
Salico, etc.) that if a valid and sufficient information is
erroneously dismissed upon motion of the defendant he is
deemed to have waived the plea of double jeopardy in
connection with an appeal from the order of dismissal, appellees
here are not precluded from making such plea.
To paraphrase, had the dismissal been anchored on the motion
to dismiss, the defendants would not have been entitled to
protection against double jeopardy.
Then in Desalisa, this Court, in a unanimous decision penned by
Mr. Justice Jesus Barrera, held that
... The ruling in the case of Salico, that the act of the defendant
in moving for the dismissal of the case constitutes a waiver of
the right to avail of the defense of double jeopardy, insofar as it
applies to dismissals which do not amount to acquittal or
dismissal of the case on the merits, cannot be considered to have
been abandoned by the subsequent decisions on the matter.
(Emphasis supplied)
xxx xxx xxx
... an appeal of the prosecution from the order of dismissal (of
the criminal complaint) by the trial court will not constitute
double jeopardy if (1) the dismissal is made upon motion, or
with the express consent, of the defendant, and (2) the dismissal
is not an acquittal or based upon consideration of the evidence
or of the merits of the case; and (3) the question to be passed
upon by the appellate court is purely legal; so that should the
dismissal be found incorrect, the case would have to be
remanded to the court of origin for further proceedings, to
determine the guilt or innocence of the defendant. (Emphasis
supplied)
The doctrine of estoppel in relation to the plea of double
jeopardy was first enunciated in Acierto which held that when
the trial court dismisses a case on a disclaimer of jurisdiction,
upon the instigation of the accused, the latter is estopped on
appeal from asserting the jurisdiction of the lower court in
support of his plea of second jeopardy. The doctrine of estoppel
is in quintessence the same as the doctrine of waiver: the thrust
of both is that a dismissal, other than on the merits, sought by
the accused in a motion to dismiss, is deemed to be with his
express consent and bars him from subsequently interposing the
defense of double jeopardy on appeal or in a new prosecution for
the same offense.
In Acierto, the defendant was charged before a United States
court-martial with having defrauded the Government of the
United States, through falsification of documents, within a
410
military base of the United States in the Philippines. The
challenge by the accused against the jurisdiction of the military
tribunal was brushed aside, and he was convicted. On review,
the verdict was reversed by the Commanding General who
sustained Acierto's position on the ground of lack of jurisdiction.
Subsequently, he was convicted of estafa and falsification based
on the same facts by the Court of first Instance of Rizal. On
appeal to this Court, he claimed former jeopardy in the court-
martial proceedings, asserting that the military court actually had
jurisdiction. In a unanimous 7 decision, this Court, through Mr.
Justice Pedro Tuason, ruled:
This is the exact reverse of the position defendant took at the
military trial. As stated, he there attacked the court-martial's
jurisdiction with the same vigor that he now says the court-
martial did have jurisdiction; and thanks to his objections, so we
incline to believe, the Commanding General, upon consultation
with, and the recommendation of, the Judge Advocate General
in Washington, disapproved the court-martial proceedings.
xxx xxx xxx
Irrespective of the correctness of the views of the Military
authorities, the defendant was estopped from demurring to the
Philippine court's jurisdiction and pleading double jeopardy on
the strength of his trial by the court-martial, A party will not be
allowed to make a mockery of justice by taking inconsistent
positions which if allowed would result in brazen deception. It
is trifling with the courts, contrary to the elementary principles
of right dealing and good faith, for an accused to tell one court
that it lacks authority to try him and, after he has succeeded in
his effort, to tell the court to which he has been turned over that
the first has committed error in yielding to his plea. (Emphasis
supplied)
The Acierto ruling was reiterated in People vs. Amada Reyes, et
al. (96 Phil. 827, April 30, 1955); People vs. Reyes, et al. (98
Phil. 646, March 23, 1956); People vs. Casiano (L-15309,
February 16, 1961), and People vs. Archilla (L-15632, February
28, 1961).
The defendants in People vs. Amada Reyes, et al., were charged
as accessories to the crime of theft committed by their brother,
Anselmo, the principal accused. The latter pleaded guilty to
simple theft and was sentenced accordingly. The former pleaded
not guilty and subsequently filed a motion to quash on the
ground that being brothers and sisters of the principal accused,
they were exempt from criminal responsibility for the acts
charged against them in the information. Thereupon, the
prosecution moved to amend the information so as to allege that
the defendants profited from the effects of the crime. In view of
this development, counsel for the defendants moved to withdraw
their motion to quash, and objected to the proposed amendment
which sought to change materially the information after plea
without the consent of the accused. Without acting on the
petition to withdraw the motion to quash, the trial court denied
the motion of the prosecution on the ground that the proposed
amendment would substantially affect the fundamental rights of
the accused who were exempt from liability under the
information because of their relation to the principal culprit.
Then the prosecution moved for the dismissal of the case against
the alleged accessories with reservation to file a new
information. The court ordered the dismissal without ruling on
the reservation. Subsequently, a new information was filed
virtually reproducing the previous one except that now there was
411
an added allegation of intent to gain. The lower court quashed
the new information upon motion of the accused on the ground
of double jeopardy. On appeal by the prosecution, this Court,
thru Mr. Justice J. B. L. Reyes, held that the plea of double
jeopardy was erroneously sustained because
In the first place, the accused-appellees herein filed a motion to
quash on the ground that they incurred no criminal liability
under the facts alleged in the information in the preceding case,
No. Q-972, and the trial court instead of allowing the withdrawal
of the motion to quash, virtually sustained the same when it
denied the fiscal's motion to amend, thereby forcing the latter to
dismiss the case; hence, it can not be held that the former case
was terminated without the express consent of the accused.
Secondly, the defendants themselves showed that the
information in the previous case was insufficient to charge them
with any criminal offense, in view of their relationship with the
principal accused; and it is well established doctrine that for
jeopardy to attach, there must be an information sufficient in
form and substance to sustain a conviction. Lastly, the herein
accused having successfully contended that the information in
the former case was insufficient to sustain a conviction, they
cannot turn around now and claim that such information was
after all, sufficient and did place them in danger of jeopardy of
being convicted thereunder. If, as they formerly contended, no
conviction could be had in the previous case, they are in estoppel
to contend now that the information in the second case places
them in jeopardy for the second time. Their case comes within
the spirit of the rule laid down in People vs. Acierto.
Again, in People vs. Reyes, et al., supra, this Court, speaking
thru Mr. Chief Justice Paras, reiterated the Acierto ruling thus:
Where the complaint or information is in truth valid and
sufficient, but the case is dismissed upon the petition of the
accused on the ground that the complaint or information is
invalid and insufficient, such dismissal will not bar another
prosecution for the same offense and the defendant is estopped
from alleging in the second information that the former dismissal
was wrong because the complaint or information was valid.
In this particular case, upon motion of the defendants, the trial
court dismissed the information because it did not allege the use
of violence, notwithstanding the fact that the offense charged
was coercion under article 287 of the Revised Penal Code. On
appeal, however, this Court ruled that the dismissal was
erroneous because "although the offense named in the
information is coercion, it does not necessarily follow that the
applicable provision is the first paragraph, since the second
paragraph also speaks of 'coercions'. Inasmuch as the recitals in
the information do not include violence, the inevitable
conclusion is that the coercion contemplated is that described
and penalized in the second paragraph."
We come now to the case of People vs. Casiano. In this case the
accused was charged with estafa in a complaint filed with the
justice of the peace court of Rosales, Pangasinan. The accused
waived her right to preliminary investigation and the record was
accordingly forwarded to the Court of First Instance of
Pangasinan where the provincial fiscal filed an information for
"illegal possession and use of false treasury or bank notes."
Upon arraignment the defendant pleaded not guilty.
Subsequently, the defense filed a motion to dismiss on the thesis
that there had been no preliminary investigation of the charge of
illegal possession and use of false treasury or bank notes, and
that the absence of such preliminary investigation affected the
412
jurisdiction of the trial court. The motion was granted on the
ground that the waiver made by the defendant in the justice of
the peace court did not deprive her of the right to a preliminary
investigation of an entirely different crime. On appeal to this
Court, it was held that the dismissal was erroneous because the
allegations of the information filed in the Court of First Instance
were included in those of the complaint filed in the justice of the
peace court where the defendant had already waived her right to
a preliminary investigation. On the question of whether the
appeal placed the defendant in double jeopardy, this Court, thru
Mr. Chief Justice (then Associate Justice) Concepcion, observed
that the situation of Casiano was identical to that of the accused
in Acierto
... were she to plead double jeopardy in this case, for such plea
would require the assertion of jurisdiction of the court of first
instance to try her and that the same erred in yielding to her plea
therein for lack of authority therefor. In the language of our
decision in the Acierto case, it is immaterial whether or not the
court a quo had said authority. It, likewise, makes no difference
whether or not the issue raised by defendant in the lower court
affected its jurisdiction. The fact is that she contested its
jurisdiction and that, although such pretense was erroneous, she
led the court to believe that it was correct and to act in
accordance with such belief. The elementary principles of fair
dealing and good faith demand, accordingly, that she be
estopped now from taking the opposite stand in order to pave the
way for a plea of double jeopardy, unless the rule of estoppel
laid down in the Acierto case is revoked. As a matter of fact, said
rule applies with greater force to the case at bar than to the
Acierto case, because the same involved two (2) separate
proceedings before courts deriving their authority from different
sovereignties, whereas the appeal in the case at bar is a
continuation of the proceedings in the lower court, which like
this Supreme Court, is a creature of the same sovereignty. In
short the inconsistency and impropriety would be more patent
and glaring in this case than in that of Acierto, if appellant herein
pleaded double jeopardy in this instance.
This Court then forthnightly stated that "the rule of estoppel
applied in the Acierto case should be maintained, because:
1. It is basically and fundamentally sound and just.
2. It is in conformity with the principles of legal ethics, which
demand good faith of the higher order in the practice of law.
3. It is well settled that parties to a judicial proceeding may not,
on appeal, adopt a theory inconsistent with that which they
sustained in the lower court.
xxx xxx xxx
4. The operation of the principle of estoppel on the question of
jurisdiction seemingly depends whether the lower court actually
had jurisdiction or not. If it had no jurisdiction, but the case was
tried and decided upon the theory that it had jurisdiction, the
parties are not barred on appeal, from assailing such jurisdiction,
for the same "must exist as a matter of law, and may not be
conferred by consent of the parties or by estoppel" (5 C.J.S. 861-
863). However, if the lower court had jurisdiction, and the case
was heard and decided upon a given theory, such, for instance,
as that the court had no jurisdiction, the party who induced it to
adopt such theory will not be permitted, on appeal, to assume an
inconsistent position — that the lower court had jurisdiction.
Here, the principle of estoppel applies. The rule that jurisdiction
413
is conferred by law, and does not depend upon the will of the
parties, has no bearing thereon.
Twelve days after Casiano, this Court, in People vs. Archilla,
supra, invoked anew the doctrine of estoppel. In this case
Alfreda Roberts, together with Jose Archilla, was charged with
bigamy. After pleading not guilty, Roberts, through his counsel,
filed a motion praying that the complaint be quashed with regard
to her on the ground that the facts alleged therein did not
constitute the offense charged for failure to aver that "insofar as
Alfreda Roberts is concerned, her marriage to Jose Luis Archilla
was her second marriage ..." On appeal, the prosecution
contended that the trial court erred in granting the motion to
quash, because the complaint was sufficient and at least charged
the accused as an accomplice. The defendant maintained that
even if that were true, the quashing of the information amounted
to her acquittal which prevented the prosecution from taking the
said appeal as it would place her in double jeopardy. Mr. Justice
Felix Bautista Angelo, writing for the majority, ruled that the
trial court erred, and proceeded to emphasize that the accused
... cannot now be allowed to invoke the plea of double jeopardy
after inducing the trial court to commit an error which otherwise
it would not have committed. In other words, appellee can not
adopt a posture of double dealing without running afoul with the
doctrine of estoppel. It is well-settled that the parties to a
justiciable proceeding may not, on appeal, adopt a theory
inconsistent with that which they sustained in the lower court
(Williams v. McMicking, 17 Phil. 408; Molina v. Somes, etc.).
Consequently, appellee is now estopped from invoking the plea
of double jeopardy upon the theory that she would still be
convicted under an information which she branded to be
insufficient in the lower court.
The accused in this case now before us nevertheless insists that
the Salico doctrine and "necessarily analogous doctrines" were
abandoned by this Court in Bangalao, Labatete, Villarin and
Cloribel.
In Bangalao, the complaint filed by the victim's mother alleged
that the rape was committed "by means of force and
intimidation" while the information filed by the fiscal alleged
that the offended party was a "minor and demented girl" and that
the defendants "successively had sexual intercourse with her by
means of force and against the will of Rosita Palban." After the
accused had pleaded not guilty, the defense counsel moved for
the dismissal of the case on the ground that the trial court lacked
jurisdiction to try the offense of rape charged by the fiscal since
it was distinct from the one alleged in the complaint which did
not aver that the victim was a demented girl". The lower court
sustained the motion and dismissed the case for lack of
jurisdiction. On appeal by the prosecution, this Court held that
the trial judge erred in dismissing the case for lack of
jurisdiction, but ruled, however, that the appeal could not
prosper because it placed the accused in double jeopardy.
As the court below had jurisdiction to try the case upon the filing
of the complaint by the mother of the offended party, the
defendants-appellees would be placed in double jeopardy if the
appeal is allowed.
After mature analysis, we cannot agree that this Court in
Bangalao impliedly abandoned the Salico doctrine on waiver.
Bangalao was decided solely on the question of jurisdiction.
This Court, however, after holding that the lower tribunal had
jurisdiction, decided outright to repress the appeal by the
414
Government on the ground of double jeopardy without
considering whether the appealed order of dismissal was issued
with or without the express consent of the accused (this aspect
of double jeopardy not being in issue). Hence, the ruling in
Salico — that the dismissal was with the express consent of the
accused because it was granted upon his instigation thru a
motion to dismiss — was not passed upon in Bangalao.
A case of striking factual resemblance with Salico is People vs.
Ferrer (100 Phil. 124, October 23, 1956). In this case, after the
prosecution had rested, the accused filed a motion to dismiss on
the ground that the territorial jurisdiction of the trial court had
not been published. Acting on this motion, the lower court
dismissed the case. The prosecution appealed. This Court found
that the evidence on record, contrary to the finding of the trial
court, amply proved the jurisdiction of the lower tribunal.
However, without the defendant interposing the plea of double
jeopardy, this Court held that "the Government however
meritorious its case cannot appeal the order of dismissal without
violating the right of the defendant not to be placed in double
jeopardy." Again, like in Bangalao, this Court did not consider
the nature of dismissal — whether it was with or without the
express consent of the defendant.
The accused in the case at bar avers that the Salico doctrine was
formally and expressly abandoned in People vs. Labatete, supra.
In the latter case, the trial court, upon motion of the defendant,
dismissed the original information for estafa on the ground that
it did not allege facts constituting the offense charged. The
information recited that the accused had contracted a loan from
the complainant, giving as security the improvements and
products of his property (a piece of land), without averring that
the said property, which was allegedly mortgaged by the accused
to the Rehabilitation Finance Corporation, formed part of the
security. Consequently, the fiscal filed an amended complaint
alleging that the accused also gave as security the land in
question, which he later mortgaged to the damage and prejudice
of the complaining creditor. This amended information was also
dismissed upon motion of the defendant on the ground of double
jeopardy. This Court, in sustaining the appealed order of
dismissal, held:
If the amended information were to be admitted, the accused will
be deprived of his defense of double jeopardy because by the
amended information he is sought to be made responsible for the
same act of borrowing on a mortgage for which he had already
begun to be tried and acquitted by the dismissal of the original
information.
xxx xxx xxx
... the trial court found that the accused could not be found guilty
of any offense under the information. The judgment entered was
not one of dismissal but of acquittal, and whether the judgment
is correct or incorrect, the same constitutes a bar to the
presentation of the amended information sought to be introduced
by the fiscal. (Emphasis supplied)
In not applying the Salico doctrine, this Court, through Mr.
Justice Alejo Labrador, expounded:
... The judgment of the trial court (in People vs. Salico) was in
fact an acquittal because of the failure on the part of the fiscal to
prove that the crime was committed within the jurisdiction of the
court. The judgment was in fact a final judgment of acquittal.
The mere fact that the accused asked for his acquittal after trial
415
on the merits (after the prosecution had rested its case) is no
reason for saying that the case was "dismissed" with his express
consent and he may again be subjected to another prosecution.
From the above named statement, it is clear that what in Salico
was repudiated in Labatete was the premise that the dismissal
therein was not on the merits and not the conclusion that a
dismissal, other than on the merits, sought by the accused, is
deemed to be with his express consent and therefore constitutes
a waiver of his right to plead double jeopardy in the event of an
appeal by the prosecution or a second indictment for the same
offense. This Court, in Labatete, merely pointed out that the
controverted dismissal in Salico was in fact an acquittal."
Reasoning a contrario, had the dismissal not amounted to
acquittal, then the doctrine of waiver would have applied and
prevailed. As a matter of fact we believe with the majority in
Salico that the dismissal therein was not on the merits and
therefore did not amount to an acquittal:
If the prosecution fails to prove that the offense was committed
within the territorial jurisdiction of the court and the case is
dismissed, the dismissal is not an acquittal, inasmuch as if it
were so the defendant could not be again prosecuted for the same
offense before a court of competent jurisdiction; and it is
elemental that in such case the defendant may again be
prosecuted for the same offense before a court of competent
jurisdiction.
Granting, however, that the Salico doctrine was abandoned in
Labatete, it was resurrected in Desalisa. Moreover, Labatete
never mentioned the doctrine of estoppel enunciated in Acierto
which had been repeatedly reaffirmed.
To bolster his contention that the Salico doctrine has been
dropped from the corpus of our jurisprudence, the accused cites
People vs. Villarin, supra. Here the accused appealed to the
Court of First instance his conviction in the inferior court for acts
of lasciviousness with consent. After conducting the preliminary
investigation, the fiscal charged the accused with corruption of
minors. Villarin pleaded not guilty, and before the case could be
heard, his counsel filed a motion to dismiss on the ground that
the information did not allege facts constituting the crime
charged. Acting on this motion, the trial court dismissed the
case. On appeal by the prosecution, this Court thru Mr. Justice
Felix Angelo Bautista, held that the dismissal was erroneous, but
that this error
... cannot now be remedied by setting aside the order dismissal
of the court a quo and by remanding the case to it for further
proceedings as now suggested by the prosecution considering
that the case was dismissed without the express consent of the
accused even if it was upon the motion of his counsel, for to do
so would place the accused in double jeopardy. The only
exception to the rule on the matter is when the dismissal is with
the consent of the accused, and here this consent has not been
obtained. (Emphasis supplied)
Villarin gives the impression, as gleaned from the above
statement, that this Court therein sustained the plea of double
jeopardy on the ground that dismissal was without the express
consent of the defendant as it was ordered "upon the motion of
his counsel" and not upon motion of the defendant himself. This
conclusion is rather unfortunate and must be rectified, for the
settled rule is that the acts of counsel in a criminal prosecution
bind his client. Thus, in People vs. Romero (89 Phil. 672, July
31, 1951), this Court held categorically that
416

The fact that the counsel for the defendant, and not the defendant
himself personally moved for the dismissal of the case against
him, had the same effect as if the defendant had personally
moved for such dismissal, inasmuch as the act of the counsel in
the prosecution of the defendant's cases was the act of the
defendant himself , for the only case in which the defendant
cannot be represented by his counsel is in pleading guilty
according to Section 3, Rule 114, of the Rules of Court.
(Emphasis supplied)
On this consideration alone, we cannot agree with the accused
in the case at bar that this Court in Villarin intended to abandon
the Salico ruling. Had the motion to dismiss filed by Villarin's
counsel been considered as one made by the defendant himself,
as should have been done, the Villarin case should have been
resolved consistent with the doctrine of waiver in Salico and/or
that of estoppel in Acierto.
As a final citation in support of his theory, the accused in the
case at bar invokes People vs. Clolibel, supra, where this Court,
in sustaining the plea of double jeopardy interposed by the
defendants, stated inter alia:
In asserting that Criminal Case No. 45717 may still be
reinstated, the petitioner adopts the ruling once followed by the
Court to the effect that a dismissal upon the defendant's own
motion is a dismissal consented to by him and, consequently,
will not be a bar to another prosecution for the same offense,
because, his action in having the case dismissed constitutes a
waiver of his constitutional right or privilege, for the reason that
he thereby prevents the court from proceeding to the trial on the
merits and rendering a judgment of conviction against him.
(People v. Salico, 84 Phil. 772) But, this authority has long been
abandoned and the ruling therein expressly repudiated.
Thus, in the case of People v. Robles, G.R. No. L-12761, June
29, 1959, citing People v. Bangalao, L-5610, February 17, 1954;
People v. Diaz, L-6518, March 30, 1954; People v. Abano, L-
7862, May 17, 1955; and People v. Ferrer, L-9072, October 23,
1956, We said:
... In reaching the above conclusion, this Court has not
overlooked the ruling in People vs. Salico, 47 O.G. 4765, to the
effect that a dismissal upon defendant's motion will not be a bar
to another prosecution for the same offense as said dismissal was
not without the express consent of the defendant, which ruling
the prosecution now invokes in support of its appeal; but said
ruling is not now controlling, having been modified or
abandoned in subsequent cases wherein this Court sustained the
theory of double jeopardy despite the fact that dismissal was
secured upon motion of the accused. (Emphasis supplied)
Also, the rule that a dismissal upon defendant's motion will not
be a bar to another prosecution for the same offense as said
dismissal is not without the express consent of the defendant, has
no application to a case where the dismissal, as here, is
predicated on the right of a defendant to a speedy trial. (People
vs. Tacneng, et al., G.R. No. L-12082, April 30, 1959).
(emphasis supplied)
The above statements must be taken in the proper context and
perspective. As previously explained, Bangalao, Ferrer, and
even Labatete, did not actually abandon the doctrine of waiver
in Salico (and not one of the said cases even implied the slightest
departure from the doctrine of estoppel established in Acierto).
417
In Diaz, Abaño, Tacneng and Robles which are cited above, like
in Cloribel, the dismissals therein, all sought by the defendants,
were considered acquittals because they were all predicated on
the right of a defendant to a speedy trial and on the failure of the
Government to prosecute. Therefore, even if such dismissals
were induced by the accused, the doctrines of waiver and
estoppel were obviously inapplicable for these doctrines
presuppose a dismissal not amounting to an acquittal.
This Court, through Mr. Justice Marceliano Montemayor, held
in People vs. Diaz (94 Phil. 714, March 30, 1954):
Here the prosecution was not even present on the day of trial so
as to be in a position to proceed with the presentation of evidence
to prove the guilt of the accused. The case was set for hearing
twice and the prosecution without asking for postponement or
giving any explanation, just failed to appear. So the dismissal of
the case, though at the instance of defendant Diaz may,
according to what we said in the Gandicela case, be regarded as
an acquittal. (emphasis supplied)
A similar result was reached by this Court thru Mr. Justice
Sabino Padilla, in People vs. Abano (97 Phil. 28, May 27, 1955),
in this wise:
After a perusal of the documents attached to the petition for a
writ of certiorari, we fail to find an abuse of discretion
committed by the respondent judge. He took pains to inquire
about the nature of the ailment from which the complaining
witness claimed she was suffering. He continued the trial three
times, to wit: on 27 May, 1 and 12 June. The defendant was
entitled to a speedy trial. When on 15 June, the last day set for
the resumption of the trial, the prosecution failed to secure the
continuance thereof and could not produce further evidence
because of the absence of the complaining witness, the
respondent judge was justified in dismissing the case upon
motion of the defense ... The defendant was placed in jeopardy
for the offense charged in the information and the annulment or
setting aside of the order of dismissal would place him twice in
jeopardy of punishment for the same offense. (emphasis
supplied)
Then in People vs. Tacneng (L-12082, April 30, 1959), Mr.
Justice Pastor Endencia, speaking for a unanimous Court,
stressed that
... when criminal case No. 1793 was called for hearing for the
third time and the fiscal was not ready to enter into trial due to
the absence of his witnesses, the herein appellees had the right
to object to any further postponement and to ask for the dismissal
of the case by reason of their constitutional right to a speedy trial;
and if pursuant to that objection and petition for dismissal the
case was dismissed, such dismissal ammounted to an acquittal
of the herein appellees which can be invoked, as they did, in a
second prosecution for the same offense. (emphasis supplied)
And this Court proceeded to distinguish the case from People vs.
Salico, thus:
We are fully aware that pursuant to our ruling in the case of Peo.
v. Salico, 45 O.G. No. 4, 1765-1776, and later reiterated in Peo
vs. Romero, L-4517-20, July 31, 1951, a dismissal upon
defendant's motion will not be a bar to another prosecution for
the same offense as said dismissal was not without the express
consent of the defendant. This ruling, however, has no
application to the instant case, since the dismissal in those cases
418
was not predicated, as in the case at bar, on the right of a
defendant to a speedy trial, but on different grounds. In the
Salico case, the dismissal was based on the ground that the
evidence for the prosecution did not show that the crime was
committed within the territorial jurisdiction of the court which,
on appeal, we found that it was, so the case was remanded for
further proceedings; and in the Romero case the dismissal was
due to the non-production of other important witnesses by the
prosecution on a date fixed by the court and under the
understanding that no further postponement at the instance of the
government would be entertained. In both cases, the right of a
defendant to a speedy trial was never put in issue. (emphasis
supplied)
The gravamen of the foregoing decisions was reiterated in
People vs. Robles (L-12761, June 29, 1959) where the trial
court, upon motion of the defendant, dismissed the case on the
ground that the failure of the prosecution to present its evidence
despite several postponements granted at its instance, denied the
accused a speedy trial. In rejecting the appeal of the
Government, this Court held:
In the circumstances, we find no alternative than to hold that the
dismissal of Criminal Case No. 11065 is not provisional in
character but one which is tantamount to acquittal that would bar
further prosecution of the accused for the same offense.
In Cloribel, the case dragged for three years and eleven months,
that is, from September 27, 1958 when the information was filed
to August 15, 1962 when it was called for trial, after numerous
postponements, mostly at the instance of the prosecution. On the
latter date, the prosecution failed to appear for trial, and upon
motion of defendants, the case was dismissed. This Court held
"that the dismissal here complained of was not truly a 'dismissal'
but an acquittal. For it was entered upon the defendants'
insistence on their constitutional right to speedy trial and by
reason of the prosecution's failure to appear on the date of trial."
(Emphasis supplied.)
Considering the factual setting in the case at bar, it is clear that
there is no parallelism between Cloribel and the cases cited
therein, on the one hand, and the instant case, on the other. Here
the controverted dismissal was predicated on the erroneous
contention of the accused that the complaint was defective and
such infirmity affected the jurisdiction of the court a quo, and
not on the right of the accused to a speedy trial and the failure of
the Government to prosecute. The appealed order of dismissal in
this case now under consideration did not terminate the action
on the merits, whereas in Cloribel and in the other related cases
the dismissal amounted to an acquittal because the failure to
prosecute presupposed that the Government did not have a case
against the accused, who, in the first place, is presumed
innocent.
The application of the sister doctrines of waiver and estoppel
requires two sine qua non conditions: first, the dismissal must be
sought or induced by the defendant personally or through his
counsel; and second, such dismissal must not be on the merits
and must not necessarily amount to an acquittal. Indubitably, the
case at bar falls squarely within the periphery of the said
doctrines which have been preserved unimpaired in the corpus
of our jurisprudence.
ACCORDINGLY, the order appealed from is set aside. This
case is hereby remanded to the court of origin for further
proceedings in accordance with law. No costs.
419

G.R. No. L-49375 February 28, 1979
LEOPOLDO SALCEDO, petitioner,
vs.
HONORABLE JUDGE FILEMON H. MENDOZA and THE PEOPLE OF
THE PHILIPPINES, respondents.
Atienza Law Office for petitioner.
Office of the Solicitor General for respondents.
MAKASIAR, J.:
This is a petition for review on certiorari with preliminary injunction of the
order of respondent Judge Filemon H. Mendoza, dated May 8, 1978, setting
aside the order of dismissal dated March 28,1978 issued by him in Criminal
Case No. C-1061 entitled "People of the Philippines, Plaintiff, versus
Leopoldo Salcedo, Accused."
The record shows that on November 11, 1977, Provincial Fiscal Nestor M.
Andrada of Oriental Mindoro filed a criminal information of homicide
through reckless imprudence against the herein petitioner Leopoldo Salcedo,
docketed as Criminal Case No. C-1061 of the Court of First Instance of
Oriental Mindoro, Branch I.
Upon arraignment on December 19, 1977, petitioner entered a plea of not
guilty and the case was then set for trial on the merits on January 25, 1978.
When the case was called for trial on that date, Provincial Fiscal Nestor M.
Andrada asked for postponement to February 22, 1978, which was granted,
for trial on February 22, 1978, which was granted, because the accused failed
to appear. When the case was called for trial on February 22, 1978, the
prosecution, through Assistant Provincial Fiscal Emmanuel S. Panaligan,
once more moved for its postponement and the case was reset for trial on
March 28, 1987.
On March 28, 1987, when the case was called for trial, no prosecuting fiscal
appeared for the prosecution. A private prosecutor, Atty. Juan P. Adzuarra,
who withdrew his appearance from the case and reserved the right to file a
separate civil action, moved for its postponement in order to give the
prosecution another chance because they intend to request the Ministry of
Justice to appoint a special prosecutor to handle the case. The trial court,
however, denied the said motion. Whereupon, the petitioner, through counsel,
Atty. Edgardo
Aceron, moved for the dismissal of the criminal case against him invoking
his constitutional right to speedy trial and respondent Judge issued an order
dismissing the case, the pertinent portion of which reads as follows:
Atty. Edgardo Aceron moved that considering the fact that this is the third
time that this case was postponed always at the instance of the fiscal although
the first postponement was made by the provincial fiscal in behalf of the
accused who failed to appear, the Court orders the dismissal of this case with
costs de officio.
Although the government is interested in the prosecution of this case, the
Court must also take into consideration the interest of the accused for under
the Constitution he is entitled to a speedy administration of justice, hence the
dismissal of the case.
IT IS SO ORDERED. (pp. 2-3, Annex A, Petition for Certiorari, pp. 14-14A,
rec.).
On the same day, the prosecution, through Assistant Provincial Fiscal Arthur
B. Panganiban, filed a motion to reconsider the above order (Annex B,
420
Petition, p. 15. rec.). In an order dated March 29, 1978, the trial court denied
the motion "for lack of merit, there being no assurance that the procecuting
fiscal will promptly and adequately prosecute the case (Annex C, Petition, p.
16, rec.). His first motion for reconsideration having been denied, Assistant
Provincial Fiscal filed a filed a second motion for reconsideration which the
court set for hearing to April 20, 1978 (Annex D, Petition, p. 17, rec.).
It appears that on April 20, 1978, the trial court issued an order requiring both
parties to submit within five (5) days from that date their respective pleadings
(Annex E, Petition, p. 19, rec.). However, the parties failed to comply with
the said order. On May 8, 1978, respondent Judge entered the order here
asked to be reviewed, setting aside the order of dismissal dated March 28,
1978 and ordering that the case be set for trial on June 5, 1978, as follows:
Considering that both parties failed to comply with the order of the is Court
dated April 20, 1978 giving them five to days from that date to submit before
the Court their respective pleadings. the Court in the interest of justice sets
aside the order of this Court dated March 28, 1978.
Conformably with the above, let the trial of this case be set to June 5, 1978 at
1:30 o'clock in the afternoon.
Let the parties be notified accordingly.
SO ORDERED. (Annex E, Petition, p. 19, emphasis supplied).
Petitioner learned for the first time about the existence of the above order an
June 5, 1978, thus he filed on June 16, 1978 a motion for reconsideration of
the said order alleging that the dismissal of the criminal case against him was
equivalent to an acquittal and reinstatement of the same would place him
twice in joepardy for the same offense (Annex F, Petition, p. 20, rec.).
On June 20, 1978, the trial court issued an order denying petitioner's motion
for reconsideration and setting the case for trial on July 20, 1978 (Annex G,
Petition, p. 24, rec.). Unable to obtain reconsideration of the May 8, 1978
order, petitioner filed the present petition for certiorari with preliminary
injunction on November 29, 1978 reiterating his contention that the dismissal
of the criminal case. which was upon his motion, predicate on his
constitutional right to a speedy trial, amounts to an acquittal, and therefore
the reinstatement of the same criminal case against him would violate his
right against double jeopardy.
In our resolution of December 8, 1978. the Court required the respondents to
comment on the petition. The Solicitor General, on behalf of the respondents,
filed his comment on January 26, 1979 agreeing with the petitioner that "a
reinstatement of this case would operate to violate his right against double
jeopardy" (p. 4, Comment, p. 31, rec.).
The Stand of the petitioner and the solicitor General is well taken. Time and
again, We have said that the dismissal of a criminal case predicated on the
right of the accused to speedy trial, amounts to an acquittal on the merits
which bars the subsequent prosecution of the accused for the same offense.
Thus, in the case of Gandicela vs. Lutero (88 Phil. 299, 307, May 21, 1951),
We said:
If the defendant wants to exercise his constitutional right to a speedy trial, he
should ask, not for the dismissal but for the trial of the case. If the prosecution
asks for the postponement of the hearing and the court believes that the
hearing cannot be postponed anymore without violating the night of the
accused to a speedy trial, the court shall deny the postponement and proceed
with the trial and require the fiscal to present the witnesses for the
prosecution; and if the fiscal does not or cannot produce his evidence and
consequently fails to prove the defendant's guilt beyond reasonable doubt, the
Court, upon the motion of the defendant, shall dismiss the case. Such
dismissal is not in reality a mere dismissal although it is generally so called
but an acquittal of the defendant because of the prosecution's .failure to prove
the guilt of the defendant, and it will be a bar to another prosecution for the
same offense even though it was ordered by the Court upon motion or with
the express consent of the defendants, in exactly the same way as a judgment
of acquittal obtained upon the defendants motion (People vs. Salico, 84 Phil.
722). (emphasis supplied).
And in the case of People vs. Diaz (94 Phil. 714, 717, March 30, 1954),
wherein the prosecution failed to appear on the day of the trial, We reiterated
the Gandicela case, doctrine stating that:
... Here the prosecution was not even present on the day of the trial so as to
be in a position to proceed with the presentation of evidence to prove the guilt
421
of the accused. The case was set for hearing twice and the prosecution without
asking for postponement or giving any explanation, just failed to appear. So
the dismissal of the case, tho at the Instance of defendant Diaz may, according
to what we said in the Gandicela case,be regarded as an acquittal. (emphasis
supplied).
Likewise, in People vs. Abano (97 Phil. 28, May 17, 1955), wherein the court
dismissed the case upon the motion of the accused for failure of the
prosecution to produce its evidence, We held that:
The defendant was entitled to a speedy trial, ... The defendant was placed in
jeopardy of punishment for the offense charged in the information and the
annulment or setting aside of the order of dismissal would place him twice in
jeopardy of punishment for the same offense.
Furthermore, in People vs. Tacneng (L-12082, April 30, 1959), where the
Court ordered the dismissal of the case upon the motion of the accused
because the prosecution was not ready for trial after several postponements,
this court held that:
... when criminal case No. 1793 was called for hearing for the third time and
the fiscal was not ready to enter into trial due to the absence of his witnesses,
the herein appellees had the right to object to any further postponement and
to ask for the dismissal of the case by reason of their constitutional right to a
speedy trial; and if pursuant to that objection and petitioner for dismissal the
case was dismissed, such dismissal amounted to an acquittal o" the herein
appellees which can be invoked as they did, in a second prosecution for the
same offense. (emphasis supplied).
Then, in People vs. Robles (105 Phil. 1016, June 29, 1959), a case with a
similar factual setting as that of People vs, Tacneng, supra We ruled that:
In the circumstances, we find no alternative than to hold that the dismissal of
Criminal Case No. 11065 is not provisional in character but one which is
tantamount to acquittal that would bar further prosecution of the accused for
the same offense.
Later, in the 1960 case of People vs. Lasarte (107 Phil, 697, April 27, 1960),
this Court pointed out that:
... where the fiscal fails to prosecute and the judge dismiss the case, the
termination is not real dismissal but acquittal because the prosecution failed
to prove the case when the trial ,wherefore came.
And in Lagunilla vs. Honorable Reyes and Motas (1 SCRA 1364, April 29,
1961), where the court dismissed the case because of the apparent lack of
interest of the complainant to prosecute the case, this Court again ruled that:
Such dismissal made unconditionally and without reservation, after plea of
not guilty, and apparently predicated on the constitutional right of the accused
to a speedy trial is, ... equivalent to an acquittal. And being an order of
acquittal, it became final immediately after promulgation and could no longer
be recalled for correction or reconsideration (People vs. Sison, L-11669,
January 30, 1959; Catilo Abaya, 94 Phil. 1014; 50 Off. Gaz., [6] 2477; People
vs. Yelo, 83 Phil. 618; 46 Off. Gaz. [11th Supp.] 71), with or without good
reason.
In the more recent case of People vs. Cloribel (11 SCRA 805, August 31,
1964) where the Court again ordered the dismissal of the case upon notion of
the accused because of the failure of the prosecution to appear, WE had
occasion again to reiterate Our previous rulings, thus:
... the dismissal here complained of was not truly a a "dismissal" but an
acquittal. For it was entered upon the defendant's insistence on their
contitutional right to speedy trial and by reason of the prosecution's failure to
appear on the date of trial.
In the present case, the respondent Judge dismissed the case, upon the motion
of the petitioner invoking his constitutional right to speedy trial, because the
prosecution failed to appear on the day of the trial on March 28, 1978 after it
had previously been postponed twice, the first on January 26, 1978 and the
second on February 22, 1978.
The effect of such dismissal is at once clear Following the established
jurisprudence, a dismiss predicated on the right of the accused to speedy trial
upon his own motion or express consent, amounts to an acquittal which will
bar another prosecution of the accused for the same offense This is an
exception to the rule that a dismissal upon the motion or with the express
consent of the accused win not be a bar to the subsequent prosecution of the
accused for the same offense as provided for in Section 9, Rule 113 of the
422
Rules of Court. The moment the dismissal of a criminal case is predicated on
the right of the accused to speedy trial even if it is upon his own motion or
express consent, such dismissal is equivalent to acquittal And any attempt to
prosecute the accused for the same offense will violate the constitutional
prohibition that "no person shall be twice put in jeopardy of punishment for
the same offense (New Constitution, Article IV, Sec 22).

The setting aside by the respondent Judge on May 8, 1978 of the order of
dismissal of March 28, 1978 and thereby reviving or reinstating Criminal
Case No. C-1061 places the petitioner twice in jeopardy for the offense The
respondent Judge therefore committed a grave abuse of discretion in issuing
the order of May 8, 1978 setting aside the order of dismiss issued on March
28, 1978.

WHEREFORE, THE PETITION IS HEREBY GRANTED AND THE

CHALLENGED ORDER DATED MAY 8, 1978, IS HEREBY SET ASIDE
AS NULL AND VOID. NO COSTS.

423

G.R. No. 171671 June 18, 2012
PEOPLE OF THE PHILIPPINES, Petitioner,
vs.
ARISTEO E. ATIENZA, RODRIGO D. MANONGSONG, CRISPIN M.
EGARQUE, and THE HON. SANDIGANBAYAN (THIRD DIVISION),
Respondents.
DECISION
PERALTA, J.:
This is a petition for review on certiorari assailing the Resolution1 dated
February 28, 2006 of the Sandiganbayan (Third Division) granting the
Demurrer to Evidence filed by respondents Aristeo E. Atienza and Rodrigo
D. Manongsong, which effectively dismissed Criminal Case No. 26678 for
violation of Section 3 (e) of Republic Act No. 3019.
The factual and procedural antecedents are as follows:
In an Information2 filed on June 19, 2001, respondents Aristeo E. Atienza
(Mayor Atienza), then Municipal Mayor of Puerto Galera, Oriental Mindoro,
Engr. Rodrigo D. Manongsong (Engr. Manongsong), then Municipal
Engineer of Puerto Galera and Crispin M. Egarque (Egarque), a police officer
stationed in Puerto Galera, were charged before the Sandiganbayan violation
of Section 3 (e) of Republic Act No. 3019 (RA 3019), or the Anti-Graft and
Corrupt Practices Act in Criminal Case No. 26678. The Information alleged:
That on or about 04 July 2000, or sometime prior or subsequent thereto, in
the Municipality of Puerto Galera, Province of Oriental Mindoro, Philippines,
and within the jurisdiction of this Honorable Court, the above-named
accused, ARISTEO E. ATIENZA, Municipal Mayor of Puerto Galera,
Oriental Mindoro, conspiring and confederating with co-accused RODRIGO
MANONGSONG, Municipal Engineer, and CRISPIN EGARQUE, PNP
Officer, while in the performance of their official functions, committing the
offense in relation to their offices, and taking advantage of their official
positions, acting with manifest partiality, evident bad faith, did then and there
wilfully, unlawfully and criminally destroy, demolish, and dismantle the
riprap/fence of the new HONDURA BEACH RESORT owned by
complainant EDMUNDO A. EVORA located at Hondura, Puerto Galera,
Oriental Mindoro, causing undue injury to complainant in the amount of
₱8,000.00
CONTRARY TO LAW.3
Duly arraigned, respondents entered their respective pleas of not guilty to the
crime charged against them.4 After pre-trial,5 trial on the merits ensued.
To establish its case, the prosecution presented the testimonies of Mercedita
Atienza (Mercedita), Alexander Singson (Alexander), Edmundo Evora
(Edmundo), and Acting Barangay Chairman Concepcion Escanillas
(Escanillas).
Mercedita testified that she was the caretaker of Hondura Beach Resort, a
resort owned by Edmundo in Puerto Galera, Oriental Mindoro. She narrated
that on July 3, 2000, Edmundo caused the construction of a fence made of
coco lumber and G.I. sheets worth ₱5,000.00 on his resort. On July 4, 2000,
she found out that the fence that was just recently built was destroyed. Upon
the instruction of Edmundo, she reported the incident to the barangay
authorities. On July 5, 2000, Edmundo again caused the construction of a
second fence on the same property worth ₱3,000.00. However, on the day
following, the fence was again destroyed. Mercedita stated that she was
informed by some people who were there that a policeman and Engr.
Manongsong were the ones who destroyed the fence.6
424
Mercedita further testified that Edmundo instructed her to report the matter
to the police. When she inquired at the police station, Egarque admitted that
he destroyed the fence upon the order of Mayor Atienza. When she asked
Mayor Atienza about the incident, the latter informed her that the fence was
not good for Puerto Galera since the place was a tourist destination and that
the land was intended for the fishermen association. Mercedita added that
Engr. Manongsong admitted that he destroyed the fence upon the order of the
mayor for lack of municipal permit and that the land was intended for the
fishermen. Mercedita also stated that she reported to acting Barangay
Chairman Escanillas that it was Engr. Manongsong and Egarque who
destroyed the fence upon the order of the mayor.7
Alexander testified that he and a certain Reynaldo Gumba constructed the
fence twice on the subject property. On the morning of July 6, 2000, he saw
the fence being destroyed by Engr. Manongsong and Egarque. He said that
he informed Mercedita about the incident and he accompanied the latter to
the police station and the offices of Mayor Atienza and Engr. Manongsong.
They eventually reported the incident to acting Barangay Chairman
Escanillas.8
Private complainant Edmundo corroborated the testimony of Mercedita and
further stated that due to the incident, he requested the barangay chairman for
a meeting. On July 24, 2000, acting Barangay Chairman Escanillas, the
barangay secretary, Engr. Manongsong, Mercedita, Alexander, and a certain
Aguado attended the meeting at the barangay hall. Edmundo stated that when
Engr. Manongsong was asked why Edmundo was not notified of the
destruction of the fence, Engr. Manongsong replied, "Sino ka para padalhan
ng Abiso?" Edmundo said that they eventually failed to settle the case
amicably.9
Acting Barangay Chairman Escanillas testified that Mercedita and Alexander
went to her on July 4, 2000 and July 6, 2000 to report that the fence
constructed on the property of Edmundo was destroyed by Engr.
Manongsong and Egarque upon the order of Mayor Atienza. She added that
upon the request of Mercedita, she wrote Engr. Manongsong for a meeting
with Edmundo, but the parties failed to settle the dispute on the scheduled
meeting.
All the exhibits offered by the prosecution were marked in evidence and were
admitted on September 21, 2005, which consisted of, among others, machine
copies of transfer certificates of title, affidavits, and barangay blotters.10
Meanwhile, on September 22, 2004, petitioner filed a Motion to Suspend
Accused Pendente Lite,11 which was opposed by Mayor Atienza and Engr.
Manongsong. On August 4, 2005, the Sandiganbayan granted the motion.
Mayor Atienza then filed a Motion for Reconsideration,12 which petitioner
opposed.
Thereafter, on October 11, 2005, Mayor Atienza and Engr. Manongsong filed
a Motion for Leave of Court to File Motion to Acquit by Way of Demurrer
to Evidence,13 which petitioner opposed. On December 6, 2005, the court a
quo issued a Resolution14 which granted the motion. In the same resolution,
the court a quo also held in abeyance the resolution of Mayor Atienza’s
motion for reconsideration of the resolution granting his suspension from
office.
On January 9, 2006, Mayor Atienza and Engr. Manongsong filed a Demurrer
to Evidence (Motion to Acquit),15 which was anchored on the credibility of
the witnesses for the prosecution. Respondents maintain that the evidence
presented were not sufficient to hold them guilty of the offense charged. On
January 19, 2006, petitioner filed its Comment/Opposition.16
On January 23, 2006, albeit belatedly, Egarque filed a Manifestation17 that
he was adopting the Demurrer to Evidence filed by his co-accused.
On February 28, 2006, the Sandiganbayan (Third Division) issued the
assailed Resolution which, among other things, granted the Demurrer to
Evidence and dismissed the case. The decretal potion of which reads:
WHEREFORE, for lack of sufficient evidence to prove the guilt of all the
accused beyond reasonable doubt, the Demurrer to Evidence is hereby
GRANTED. This case is hereby ordered DISMISSED.
The bail bonds posted by all accused is hereby ordered CANCELLED and
RETURNED to them, subject to the usual accounting rules and regulations.
425
The Hold Departure Order issued by this Court against all of the accused in
this case are hereby LIFTED and SET ASIDE. Let the Commissioner of the
Bureau of Immigration and Deportation be notified accordingly.
Consequently, the Motion for Reconsideration, dated August 31, 2005, filed
by accused Atienza regarding his suspension from office pendent lite, is
hereby rendered moot and academic.
SO ORDERED.18
In granting the Demurrer to Evidence, the Sandiganbayan ratiocinated that
not all the elements of the crime charged were established by the prosecution,
particularly the element of manifest partiality on the part of respondents. The
Sandiganbayan held that the evidence adduced did not show that the
respondents favored other persons who were similarly situated with the
private complainant.
Hence, the petition assigning the following errors:
I.
WHETHER OR NOT THE COURT A QUO GRAVELY ERRED IN
DENYING THE PEOPLE DUE PROCESS WHEN IT RESOLVED ISSUES
NOT RAISED BY RESPONDENTS IN THEIR DEMURRER TO
EVIDENCE, WITHOUT AFFORDING THE PROSECUTION AN
OPPORTUNITY TO BE HEARD THEREON.
II.
WHETHER OR NOT THE COURT A QUO GRAVELY ERRED IN
DECIDING A QUESTION OF SUBSTANCE NOT IN ACCORD WITH
LAW OR EXISTING JURISPRUDENCE WHEN IT CONSIDERED
MATTERS OF DEFENSE.19
Petitioner contends that the prosecution was not afforded due process when
the Sandiganbayan granted the Demurrer to Evidence based on the ground
that the prosecution failed to establish bad faith on the part of the respondents.
Petitioner argues that the Sandiganbayan should have resolved the Demurrer
to Evidence based on the argument of the respondent questioning the
credibility of petitioner’s witnesses and the admissibility of their testimonies
in evidence, not upon an issue which petitioner was not given an opportunity
to be heard, thus, effectively denying the prosecution due process of law.
Petitioner maintains that contrary to the conclusion of the court a quo there
was evident bad faith on the part of the respondents. Petitioner insists that the
act itself of demolishing a fence erected upon private property without giving
notice of the intended demolition, and without giving the owner of the same
the opportunity to be heard or to rectify matters, is evident bad faith.
Petitioner also contends that the element of manifest partiality was
sufficiently established when the fence was destroyed on the rationale that
they do not have a permit to erect the fence; the place was intended for the
benefit of fishermen; and it was a tourist spot. Moreover, the demolition was
allegedly done in the guise of official business when the fence was
demolished on the basis of the above-stated purpose.
Finally, petitioner argues that the constitutional proscription on double
jeopardy does not apply in the present case.
On their part, respondents argue that the Sandiganbayan was correct in
granting the Demurrer to Evidence and dismissing the case. Respondents
allege that the prosecution was not denied due process of law. Respondents
maintain that the prosecution was given every opportunity to be heard. In fact,
the assailed resolution was issued after the prosecution has rested its case.
Moreover, respondents insist their right against double jeopardy must be
upheld.
The petition is bereft of merit.
SEC. 3. Corrupt practices of public officers. — In addition to acts or
omissions of public officers already penalized by existing law, the following
shall constitute corrupt practices of any public officer and are hereby declared
to be unlawful:
xxxx
(e) Causing any undue injury to any party, including the Government, or
giving any private party any unwarranted benefits, advantage or preference
in the discharge of his official, administrative or judicial functions through
manifest partiality, evident bad faith or gross inexcusable negligence. This
426
provision shall apply to officers and employees of offices or government
corporations charged with the grant of licenses or permits or other
concessions.
This crime has the following essential elements:
1. The accused must be a public officer discharging administrative, judicial
or official functions;
2. He must have acted with manifest partiality, evident bad faith or gross
inexcusable negligence; and
3. His action caused any undue injury to any party, including the government,
or gave any private party unwarranted benefits, advantage or preference in
the discharge of his functions.20
In the case at bar, the Sandiganbayan granted the Demurrer to Evidence on
the ground that the prosecution failed to establish the second element of
violation of Section 3 (e) of RA 3019.
The second element provides the different modes by which the crime may be
committed, that is, through "manifest partiality," "evident bad faith," or
"gross inexcusable negligence."21 In Uriarte v. People,22 this Court
explained that Section 3 (e) of RA 3019 may be committed either by dolo, as
when the accused acted with evident bad faith or manifest partiality, or by
culpa, as when the accused committed gross inexcusable negligence. There
is "manifest partiality" when there is a clear, notorious, or plain inclination or
predilection to favor one side or person rather than another. "Evident bad
faith" connotes not only bad judgment but also palpably and patently
fraudulent and dishonest purpose to do moral obliquity or conscious
wrongdoing for some perverse motive or ill will. "Evident bad faith"
contemplates a state of mind affirmatively operating with furtive design or
with some motive of self-interest or ill will or for ulterior purposes. "Gross
inexcusable negligence" refers to negligence characterized by the want of
even the slightest care, acting or omitting to act in a situation where there is
a duty to act, not inadvertently but wilfully and intentionally, with conscious
indifference to consequences insofar as other persons may be affected.23
As aptly concluded by the Sandiganbayan in the assailed resolution, the
second element of the crime as charged was not sufficiently established by
the prosecution, to wit:
I.
The presence of the first element of this offense was not disputed. The
prosecution established that accused-movants were public officers, being
then the Mayor, Municipal Engineer, and member of the PNP, at the time
alleged in the information.
II.
Anent the second element, did the act of destroying the subject fences on July
4, 2000 and on July 6, 2000 allegedly by accused Manongsong and Egarque,
without giving any notice to the private complainant, amount to manifest
partiality and/or evident bad faith as indicated in the information?
Manifest partiality and evident bad faith are modes that are separate and
distinct from each other so that the existence of any of these two modes would
be sufficient to satisfy the second element. x x x
xxxx
Manifest partiality was not present in this case. The evidence adduced did not
show that accused-movants favored other persons who were similarly
situated with the private complainant.
Eyewitness Alexander Singson categorically pointed accused Manongsong
and Egarque as the persons who destroyed/removed the second fence. Private
complainant lamented that he was not even given notice of their intent to
destroy the fence. However, the same could not be considered evident bad
faith as the prosecution evidence failed to show that the destruction was for a
dishonest purpose, ill will or self interest. In fact, the following testimonial
evidence presented by the prosecution itself showed that:
1. Mercedita Atienza revealed that when she confronted Manongsong why he
destroyed the subject fences, the latter replied that "You don’t have permit
and the land is for the fishermen";
427
2. Alexander Singson corroborated that Manongsong told them that "they
destroyed the fence because it is a tourist spot and it is also a port for the
fishermen"; and
3. Mercedita Atienza also testified that when she asked accused Atienza about
the incident, the latter told her "Masama and pinabakod mo. Alam mo
namang tourist spot ang Puerto Galera at para sa fishermen’s association
yan."
III.
Considering that the second element was not present, the Court deemed it
proper not to discuss the third element.24
Moreover, contrary to petitioner’s contention, the prosecution was not denied
due process.1âwphi1 It is to be noted that the prosecution participated in all
the proceedings before the court a quo and has filed numerous pleadings and
oppositions to the motions filed by respondent. In fact, the prosecution has
already rested its case and submitted its evidence when the demurrer was
filed. Where the opportunity to be heard, either through verbal arguments or
pleadings, is accorded, and the party can present its side or defend its interests
in due course, there is no denial of procedural due process.25 What is
repugnant to due process is the denial of the opportunity to be heard,26 which
is not present here.
Clearly, double jeopardy has set in. The elements of double jeopardy are (1)
the complaint or information was sufficient in form and substance to sustain
a conviction; (2) the court had jurisdiction; (3) the accused had been arraigned
and had pleaded; and (4) the accused was convicted or acquitted, or the case
was dismissed without his express consent.27
The above elements are all attendant in the present case: (1) the Information
filed before the Sandiganbayan in Criminal Case No. 26678 against
respondents were sufficient in form and substance to sustain a conviction; (2)
the Sandiganbayan had jurisdiction over Criminal Case No. 26678; (3)
respondents were arraigned and entered their respective pleas of not guilty;
and (4) the Sandiganbayan dismissed Criminal Case No. 26678 on a
Demurrer to Evidence on the ground that not all the elements of the offense
as charge exist in the case at bar, which amounts to an acquittal from which
no appeal can be had.
In People v. Sandiganbayan,28 this Court elucidated the general rule that the
grant of a demurrer to evidence operates as an acquittal and is, thus, final and
unappealable, to wit:
The demurrer to evidence in criminal cases, such as the one at bar, is "filed
after the prosecution had rested its case," and when the same is granted, it
calls "for an appreciation of the evidence adduced by the prosecution and its
sufficiency to warrant conviction beyond reasonable doubt, resulting in a
dismissal of the case on the merits, tantamount to an acquittal of the accused."
Such dismissal of a criminal case by the grant of demurrer to evidence may
not be appealed, for to do so would be to place the accused in double
jeopardy. The verdict being one of acquittal, the case ends there.29
Verily, in criminal cases, the grant of demurrer30 is tantamount to an acquittal
and the dismissal order may not be appealed because this would place the
accused in double jeopardy. Although the dismissal order is not subject to
appeal, it is still reviewable but only through certiorari under Rule 65 of the
Rules of Court. For the writ to issue, the trial court must be shown to have
acted with grave abuse of discretion amounting to lack or excess of
jurisdiction such as where the prosecution was denied the opportunity to
present its case or where the trial was a sham, thus, rendering the assailed
judgment void. The burden is on the petitioner to clearly demonstrate that the
trial court blatantly abused its authority to a point so grave as to deprive it of
its very power to dispense justice.31 In the present case, no such
circumstances exist to warrant a departure from the general rule and reverse
the findings of the Sandiganbayan.1âwphi1
WHEREFORE, premises considered, the petition is DENIED. The
Resolution dated February 28, 2006 of the Sandiganbayan, in Criminal Case
No. 26678, is AFFIRMED.
SO ORDERED.
428

[G.R. No. 127444. September 13, 2000]
PEOPLE OF THE PHILIPPINES, petitioner, vs. HON. TIRSO D. C.
VELASCO in his capacity as the Presiding Judge, RTC-Br. 88, Quezon City,
and HONORATO GALVEZ, respondents.
DECISION
BELLOSILLO, J.:
This case nudges the Court to revisit the doctrine on double jeopardy, a
revered constitutional safeguard against exposing the accused to the risk of
answering twice for the same offense. In this case, after trial on the merits,
the accused was acquitted for insufficiency of the evidence against him in the
cases for murder and frustrated murder (although his co-accused was
convicted), and finding in the illegal carrying of firearm that the act charged
did not constitute a violation of law. But the State through this petition for
certiorari would want his acquittal reversed.
We narrate a brief factual backdrop.
The idyllic morning calm in San Ildefonso, Bulacan, a small town north of
Manila, was shattered by gunshots fired in rapid succession. The shooting
claimed the life of young Alex Vinculado and seriously maimed his twin
brother Levi who permanently lost his left vision. Their uncle, Miguel
Vinculado, Jr. was also shot. A slug tunneled through his right arm, pierced
the right side of his body and burrowed in his stomach where it remained until
extracted by surgical procedure.
As a consequence, three (3) criminal Informations - one (1) for homicide and
two (2) for frustrated homicide - were originally filed before the Regional
Trial Court of Malolos, Bulacan, against Honorato Galvez, Mayor of San
Ildefonso, and Godofredo Diego, a municipal employee and alleged
bodyguard of the mayor. On 14 December 1993, however, the charges were
withdrawn and a new set filed against the same accused upgrading the crimes
to murder (Crim. Case No. 4004-M-93) and frustrated murder (Crim. Cases
Nos. 4005-M-93 and 4006-M-93). Mayor Galvez was charged, in addition,
with violation of PD 1866 (Crim. Case No. 4007-M-94) for unauthorized
carrying of firearm outside his residence; hence, a fourth Information had to
be filed.
After a series of legal maneuvers by the parties, venue of the cases was
transferred to the Regional Trial Court of Quezon City, Metro Manila. There
the cases were stamped with new docket numbers (Nos. Q-94-55484, Q-94-
55485, Q-94-55486 and Q-94-55487, respectively), and raffled to Branch 103
presided over by Judge Jaime Salazar, Jr. In the course of the proceedings,
the judge inhibited himself and the cases were re-raffled to respondent Judge
Tirso D.C. Velasco of Branch 89.
On 8 October 1996 a consolidated decision on the four (4) cases was
promulgated. The trial court found the accused Godofredo Diego guilty
beyond reasonable doubt of the crimes of murder and double frustrated
murder. However, it acquitted Mayor Honorato Galvez of the same charges
due to insufficiency of evidence. It also absolved him from the charge of
illegal carrying of firearm upon its finding that the act was not a violation of
law.
The acquittal of accused Honorato Galvez is now vigorously challenged by
the Government before this Court in a Petition for Certiorari under Rule 65
429
of the Rules of Court and Sec. 1, Art. VIII, of the Constitution. It is the
submission of petitioner that the exculpation of the accused Galvez from all
criminal responsibility by respondent Judge Tirso Velasco constitutes grave
abuse of discretion amounting to lack of jurisdiction. Allegedly, in holding in
favor of Galvez, the judge deliberately and wrongfully disregarded certain
facts and evidence on record which, if judiciously considered, would have led
to a finding of guilt of the accused beyond reasonable doubt. Petitioner
proposes that this patently gross judicial indiscretion and arbitrariness should
be rectified by a re-examination of the evidence by the Court upon a
determination that a review of the case will not transgress the constitutional
guarantee against double jeopardy. It is urged that this is necessary because
the judgment of acquittal should be nullified and substituted with a verdict of
guilt.
The main hypothesis of the Government is that elevating the issue of criminal
culpability of private respondent Galvez before this Tribunal despite acquittal
by the trial court should not be considered violative of the constitutional right
of the accused against double jeopardy, for it is now settled constitutional
doctrine in the United States that the Double Jeopardy Clause permits a
review of acquittals decreed by US trial magistrates where, as in this case, no
retrial is required should judgment be overturned.[1] Since Philippine
concepts on double jeopardy have been sourced from American constitutional
principles, statutes and jurisprudence, particularly the case of Kepner v.
United States,[2] and because similarly in this jurisdiction a retrial does not
follow in the event an acquittal on appeal is reversed, double jeopardy should
also be allowed to take the same directional course. Petitioner in this regard
urges the Court to take a second look at Kepner, it being the "cornerstone of
the battlement of the Double Jeopardy Clause" in the Philippines[3] and
seriously examine whether the precedents it established almost a century ago
are still germane and useful today in view of certain modifications wrought
on the doctrine by the succeeding American cases of United States v.
Wilson[4] and United States v. Scott.[5]
Two (2) threshold issues therefore, interlocked as they are, beg to be
addressed. One is the propriety of certiorari as an extraordinary mode of
review under Rule 65 of the Rules of Court where the result actually intended
is the reversal of the acquittal of private respondent Galvez. The other is the
permissibility of a review by the Court of a judgment of acquittal in light of
the constitutional interdict against double jeopardy.
The recent untimely demise of respondent Galvez at the hands of alleged
assassins (not discounting too the earlier dismissal of respondent judge from
the service) may arguably have rendered these matters moot and academic,
thus calling for a dismissal of the petition on this basis alone. The Court
however is not insensitive to nor oblivious of the paramount nature and object
of the pleas forcefully presented by the Government considering especially
the alleged new directions in American jurisprudence taken by the doctrine
of double jeopardy. We are thus impelled to respond to the issues advanced
by petitioner for these bear unquestionably far-reaching contextual
significance and implications in Philippine juristic philosophy and
experience, demanding no less, explicit and definitive rulings.
For it may be argued from a historico-analytical perspective that perhaps none
of the constitutionally ensconced rights of men has followed a more
circuitous and tortuous route in the vast sea of jurisprudence than the right of
a person not to be tried or prosecuted a second time for the same offense.[6]
This prohibition does not consist merely of one rule but several, each rule
applying to a different situation, each rule marooned in a sea of exceptions.[7]
It must have been this unique transpiration that prompted even the
redoubtable Mr. Justice Rehnquist of the U.S. Supreme Court to remark in
Albernaz v. United States[8] that "the decisional law (in the area of double
jeopardy) is a veritable Sargasso Sea which could not fail to challenge the
most intrepid judicial navigator." It is therefore necessary that, in forming a
correct perspective and full understanding of the doctrine on double jeopardy
and the rules so far established relative to the effect thereon of appeals of
judgments of acquittal, a compendious review of its historical growth and
development be undertaken. This approach is particularly helpful in properly
situating and analyzing landmark interpretive applications of the doctrine in
light of the varying legal and factual milieu under which it evolved.
Jeopardy, itself "a fine poetic word,"[9] derives from the Latin "jocus"
meaning joke, jest or game,[10] and also from the French term "jeu perdre"
which denotes a game that one might lose. Similarly, the Middle English
word "iuparti" or "jupartie" means an uncertain game.[11] The genesis of the
concept itself however rests deep in the ancient Grecian view of tragedy and
suffering and in the old Roman legal concepts of punishment. Greek law
bound prosecutor and judge to the original verdict as can be seen in the
remark of Demosthenes in 355 B. C. that "the laws forbid the same man to be
tried twice on the same issue."[12] The Justinian Digest[13] providing that
"(a) governor should not permit the same person to be again accused of crime
430
of which he has been acquitted,"[14] suggests certain philosophical
underpinnings believed to have been influenced by works of the great Greek
tragedians of the 5th century B.C. reflecting mans "tragic vision" or the tragic
view of life. For the ancient Greeks believed that man was continuously pitted
against a superior force that dictated his own destiny. But this prevailing view
was not to be taken in the sense of man passing from one misfortune to
another without relief, as this idea was repugnant to Greek sensibilities.
Rather, it expressed a universal concept of catharsis or vindication that meant
misfortune resolving itself into a final triumph, and persecution, into freedom
and liberation. To suffer twice for the same misfortune was anathema to
ancient thought.
The 18th century B. C. Babylonian king and lawgiver Hammurabi recognized
that humans could err in prosecuting and rendering judgment, thus limits
were needed on prosecutors and judges. A gruesome but effective way of
preventing a second trial by the same prosecutor after an acquittal can be
found in the first law of the Hammurabic Code: "If a man has accused a man
and has charged him with manslaughter and then has not proved [it against
him], his accuser shall be put to death."[15]
The repugnance to double trials strongly expressed by the Catholic Church is
consistent with the interpretation by St. Jerome in 391 A. D. of the promise
by God to his people through the prophet Nahum that "(a)ffliction shall not
rise up the second time"[16] and "(t)hough I have afflicted thee, I will afflict
thee no more."[17] Taken to mean that God does not punish twice for the
same act, the maxim insinuated itself into canon law as early as 847 A. D.,
succintly phrased as "(n)ot even God judges twice for the same act."[18]
The most famous cause clbre on double jeopardy in the Middle Ages was the
dispute between the English King Henry II and his good friend, Thomas
Becket, Archbishop of Canterbury. Henry wished to continue the observance
of certain customs initiated by his predecessors called "avitae consuetudines,"
one of the known purposes of which was that clerics convicted of crimes
before Church courts be delivered to lay tribunals for punishment. He
asserted in the Constitutions of Clarendon that the clergy were also subject to
the kings punishment. This was met with stinging criticism and stiff
opposition by the Archbishop who believed that allowing this practice would
expose the clergy to double jeopardy. The issue between the two erstwhile
friends was never resolved and remained open-ended, for Thomas was later
on mercilessly murdered in his cathedral, allegedly at the instance of his
king.[19]
It was in England though, a century ago, that double jeopardy was formally
institutionalized "as a maxim of common law"[20] based on the universal
principles of reason, justice and conscience, about which the Roman Cicero
commented: "Nor is it one thing at Rome and another at Athens, one now and
another in the future, but among all nations, it is the same."[21] But even as
early as the 15th century, the English courts already began to use the term
"jeopardy" in connection with the doctrine against multiple trials.[22]
Thereafter, the principle appeared in the writings of Hale (17th c.), Lord Coke
(17th c.) and Blackstone (18th c.).[23] Lord Coke for instance described the
protection afforded by the rule as a function of three (3) related common law
pleas: autrefois acquit, autrefois convict and pardon.[24] In Vauxs Case,[25]
it was accepted as established that "the life of a man shall not be twice put in
jeopardy for one and the same offense, and that is the reason and cause that
autrefois acquitted or convicted of the same offense is a good plea x x x x"
Blackstone likewise observed that the plea of autrefois acquit or a formal
acquittal is grounded on the universal maxim of the common law of England
that "(n)o man is to be brought into jeopardy of his life more than once for
the same offense. And hence, it is allowed as a consequence that when a man
is once fairly found not guilty upon any indictment, or other prosecution
before any court having competent jurisdiction of the offense, he may plead
such acquittal in bar of any subsequent accusation for the same crime.[26]
The English dogma on double jeopardy, recognized as an indispensable
requirement of a civilized criminal procedure, became an integral part of the
legal system of the English colonies in America. The Massachusetts Body of
Liberties of 1641, an early compilation of principles drawn from the statutes
and common law of England, grandly proclaimed that "(n)o man shall be
twise sentenced by Civill Justice for one and the same crime, offence or
Trespasse" and that "(e)verie Action betweene partie and partie, and
proceedings against delinquents in Criminall causes shall be briefly and
destinctly entered on the Rolles of every Court by the Recorder thereof."[27]
Ineluctably, this pronouncement became the springboard for the proposal of
the First Congress of the United States that double jeopardy be included in
the Bill of Rights. It acknowledged that the tradition against placing an
individual twice in danger of a second prosecution for the same offense
followed ancient precedents in English law and legislation derived from
colonial experiences and necessities. Providing abundant grist for
431
impassioned debate in the US Congress, the proposal was subsequently
ratified as part of the Fifth Amendment to the Constitution.
In 1817 the Supreme Court of Tennessee dismissed an appeal by the State
after an acquittal from perjury, declaring that: A writ of error, or appeal in the
nature of a writ of error, will not lie for the State in such a case. It is a rule of
common law that no one shall be brought twice into jeopardy for one and the
same offense. Were it not for this salutary rule, one obnoxious to the
government might be harassed and run down by repeated attempts to carry
on a prosecution against him. Because of this rule, a new trial cannot be
granted in a criminal case where the defendant is acquitted. A writ of error
will lie for the defendant, but not against him.[28] Verily, these concepts were
founded upon that great fundamental rule of common law, "Nemo debet bis
vexari pro una et eadem causa," in substance expressed in the Constitution of
the United States as: "Nor shall any person be subject for the same offense,
to be twice put into jeopardy of life or limb." It is in the spirit of this benign
rule of the common law, embodied in the Federal Constitution - a spirit of
liberty and justice, tempered with mercy - that, in several states of the Union,
in criminal cases, a writ of error has been denied to the State.[29]
The relationship between the prohibition against second jeopardy and the
power to order a new trial following conviction or dismissal stirred a no small
amount of controversy in United States v. Gibert.[30] There, Mr. Justice
Story, on circuit, declared that "the court had no power to grant a new trial
when the first trial had been duly had on a valid indictment before a court of
competent jurisdiction." The opinion formulated was that the prohibition
against double jeopardy applied equally whether the defendant had been
acquitted or convicted.
But it must be noted that even in those times, the power to grant a new trial
in the most serious cases was already being exercised by many American
courts, the practice having been observed from an early date, in spite of
provisions of law against double jeopardy.[31] For this reason, the rule in
Gibert was stoutly resisted.[32] As if to taunt Gibert, the 1839 case of United
States v. Keen[33] declared that the constitutional provision did not prohibit
a new trial on defendants motion after a conviction. In Hopt v. Utah,[34] the
defendant was retried three (3) times following reversals of his convictions.
Then in 1896 the U.S. Supreme Court in United States v. Ball[35] affirmed
that the double jeopardy rule did not prevent a second trial when, on appeal,
a conviction had been set aside. It declared that a defendant who procured on
appeal a reversal of a judgment against him could be tried anew upon the
same indictment or upon another indictment for the same offense of which he
had been convicted. This principle of autrefois convict was expanded nine (9)
years later in Trono v. United States[36] where the Court affirmed the
judgment of the Supreme Court of the Philippines by holding that "since the
plaintiffs in error had appealed their convictions of the lower offense in order
to secure a reversal, there was no bar to convicting them of the higher offense
in proceedings in the appellate court that were tantamount to a new trial." Mr.
Justice Peckham, holding for the Court, concluded that "the better doctrine is
that which does not limit the court or the jury upon a new trial, to a
consideration of the question of guilt of the lower offense of which the
accused was convicted on the first trial, but that the reversal of the judgment
of conviction opens up the whole controversy and acts upon the original
judgment as if it had never been."[37] It was ratiocinated that the result was
justified not only on the theory that the accused had waived their right not to
be retried but also on the ground that "the constitutional provision was really
never intended to x x x cover the case of a judgment x x x which has been
annulled at the request of the accused x x x x"
It must be stressed though that Ball also principally ruled that it had long been
settled under the Fifth Amendment that a verdict of acquittal is final, ending
a defendants jeopardy, and, even when not followed by any judgment, is a
bar to a subsequent prosecution for the same offense. It is one of the elemental
principles of our criminal law that the Government cannot secure a new trial
by means of an appeal, even though an acquittal may appear to be erroneous.
In 1891 the United States Judiciary Act was passed providing that appeals or
writs of error may be taken from the district court or from the existing circuit
courts direct to the Supreme Court in any case that involved the construction
of the Constitution. The following year an issue was raised in United States
v. Sanges[38] on whether this Act conferred upon the government the right
to sue out a writ of error in any criminal case. In that case, existing rules on
double jeopardy took a significant turn when the United States Supreme
Court observed that while English law was vague on the matter, it had been
settled by overwhelming American authority that the State had no right to sue
out a writ of error upon a judgment in favor of the defendant in a criminal
case, except under and in accordance with express statutes, whether that
judgment was rendered upon a verdict of acquittal, or upon the determination
by the court of a question of law. The Court noted that in a few states,
432
decisions denying a writ of error to the State after a judgment for the
defendant on a verdict of acquittal proceeded upon the ground that to grant it
would be to put him twice in jeopardy, in violation of the constitutional
provision.[39] Sanges therefore fixed the rule that absent explicit legislative
authority, the United States Government had no right of appeal in criminal
cases in case of an acquittal as it would expose the defendant twice to
jeopardy.
Notably, however, in 1892 the Attorneys General of the United States began
to recommend the passage of legislation allowing the Government to appeal
in criminal cases. Their primary objective was to resist the power of a single
district judge (under the law then obtaining) by dismissing an indictment to
defeat any criminal prosecution instituted by the Government. No action was
taken on the proposal until 1906 when President Theodore Roosevelt in his
annual message to the US Congress demanded the enactment of legislation
on the matter. Consequently, on 2 March 1907 such legislative authority was
provided when the Criminal Appeals Act became a law[40]40 Ch. 2564, 34
Stat. 1246.40 permitting the United States to seek a writ of error from the
Supreme Court from any decision dismissing all indictment on the basis of
the "invalidity or construction of the statute upon which the indictments is
founded."[41] The law narrowed the right to appeal by the Government to
cases in which the ground of the District Courts decision was invalidity or
construction of the statute upon which the charge was founded, and that a
verdict in favor of the defendant based on evidence could not be set aside on
appeal no matter how erroneous the legal theory upon which it may be based.
For these purposes, it made no difference whether the verdict be the result of
the jurys decision or that of the judge. In other words, Government could
appeal from a decision dismissing an indictment or arresting judgment on the
basis of the statutory invalidity or misconstruction of the pertinent criminal
statute and from a decision sustaining a special plea in bar, so long as the
defendant would not be put in jeopardy.[42]
On 10 December 1898 the Philippine Islands was ceded by Spain to the
United States by virtue of the Treaty of Paris of 1898 which was ratified by
the State Parties on 11 April 1899. The Islands was placed under military rule
until the establishment of the Philippine Commission in 1902. On 23 April
1900 the military government issued General Order No. 58 which amended
the Code of Criminal Procedure then in force by, among others, extending to
the Islands the double jeopardy provision under the Fifth Amendment of the
US Constitution. This was pursuant to the 7 April 1900 Instructions of
President McKinley issued to the Philippine Commission headed by William
Howard Taft. The Instructions read in part: x x x the Commission should bear
in mind, and the people of the Islands should be made to understand, that
there are certain great principles of government which have been made the
basis of our governmental system, which we deem essential to the rule of law
x x x and maintained in their islands for the sake of their liberty and
happiness, however much they may conflict with the customs or laws of
procedure with which they are familiar x x x x Upon every division and
branch of the Government of the Philippines therefore must be imposed these
inviolable rules: x x x that x x x no person shall be put twice in jeopardy for
the same offense x x x x"[43]
General Order No. 58 was amended by Act No. 194 which permitted an
appeal by the government after acquittal. The Philippine Civil Government
Act of 1 July 1902 of the U.S. Congress repealed the Act, adopted and
restored the same principle in Gen. Order No. 58 as enunciated in the Fifth
Amendment and in McKinleys Instructions by providing immunity from
second jeopardy for the same criminal offense. It did not take long however
for the meaning and significance of the doctrine held forth in McKinleys
Instructions to be placed under severe test and scrutiny.
In 1901 Mr. Thomas E. Kepner, a practicing lawyer in Manila, Philippines,
was charged with embezzlement of funds (estafa). He was tried by a court of
first instance, minus a jury, and was acquitted of the crime. The U.S.
Government appealed to the Supreme Court of the Philippine Islands and
judgment was reversed. Kepner was sentenced with imprisonment and
suspended from public office or place of trust.
Questioning his conviction before the US Supreme Court, Kepner argued that
the appeal by the US government to the Philippine Supreme Court of his
judgment of acquittal constituted double jeopardy construed in light of
existing US jurisprudence. On the other hand, the Attorney General for the
Philippines and the Solicitor General of the United States jointly contended
that the Philippine Bill of 1 July 1902 which included the prohibition against
double jeopardy should be construed from the perspective of the system of
laws prevailing in the Philippines prior to its cession to the United States.
Under this system, the Audiencia (Supreme Court) could entertain an appeal
of a judgment of acquittal since the proceedings before it were regarded not
as a new trial but an extension of preliminary proceedings in the court of first
instance. The entire proceedings constituted one continuous trial and the
433
jeopardy that attached in the court of first instance did not terminate until final
judgment had been rendered by the Audiencia. Double jeopardy was
described not only in the Spanish law Fuero Real[44] as: After a man accused
of any crime has been acquitted by the court, no one can afterwards accuse
him of the same offense (except in certain specified cases), but also in the
Siete Partidas[45] which provided that: If a man is acquitted by a valid
judgment of any offense of which he has been accused, no other person can
afterwards accuse him of the offense x x x x Under this system of law, a
person was not regarded as jeopardized in the legal sense until there had been
a final judgment in the court of last resort. The lower courts then were deemed
examining courts, exercising preliminary jurisdiction only, and the accused
was not finally convicted or acquitted until the case had been passed upon in
the Audiencia or Supreme Court, whose judgment was subject to review by
the Supreme Court in Madrid (Spain) for errors of law, with power to grant a
new trial.
The U.S. Supreme Court however threw out the Governments argument and
held that the proceedings after acquittal had placed the accused Kepner twice
in jeopardy. It declared in no uncertain terms that the appeal of the judgment
of conviction was in essence a trial de novo and that, whatever the Spanish
tradition was, the purpose of Congress was to carry some at least of the
essential principles of American constitutional jurisprudence to the Islands
and to engraft them upon the law of these people newly subject to its
jurisdiction. There was little question therefore that Kepner soldered into
American jurisprudence the precedent that as to the defendant who had been
acquitted by the verdict duly returned and received, the court could take no
other action than to order his discharge. x x x (I)t is then the settled law of
this court that former jeopardy includes one who has been acquitted by a
verdict duly rendered, although no judgment be entered on the verdict, and it
was found upon a defective indictment. The protection is not x x x against the
peril of second punishment, but against being tried again for the same
offense."[46]
This doctrine was echoed in United States v. Wills[47] where the Court
further clarified that jeopardy implies an exposure to a lawful conviction for
an offense of which a person has already been acquitted x x x x It was
reiterated in 1957 in Green v. United States[48] in which Mr. Justice Black,
writing for the Court, professed that the constitutional prohibition against
double jeopardy was designed to protect an individual from being subjected
to the hazards of trial and possible conviction more than once for an alleged
offense. Thus, under the Fifth Amendment, a verdict of acquittal was
considered final, ending the accuseds jeopardy and that once a person has
been acquitted of an offense, he cannot be prosecuted again on the same
charge.
American jurisprudence on the effect of appealed acquittals on double
jeopardy since then sailed on, following the main sea lanes charted by
Kepner, but not without encountering perturbance along the way. For it may
be mentioned, albeit en passant, that the case of Bartkus v. Illinois[49] did
cause some amount of judicial soul-shaking in 1959 when it burst into the
scene. Alfonse Bartkus was tried before a federal district court in Illinois and
was later acquitted by the jury. Less than a year later, Bartkus was indicted
this time by an Illinois grand jury on facts substantially identical to those of
the federal charge and was subsequently convicted. His conviction was
affirmed by the Illinois Supreme Court.
On certiorari, the U.S. Supreme Court, by a close vote of 5 to 4, affirmed the
conviction. The Court, speaking through Mr. Justice Frankfurter, declared
that the Fifth Amendments double jeopardy provision was inapplicable to
states so that an acquittal of a federal indictment was no bar to a prosecution
by a state based on the same charge. Since there was no proof offered to show
that the participation of the federal authorities in the Illinois state prosecution
was of such nature as to render the state proceedings a mere cover for a
federal prosecution to render the state indictment essentially a
constitutionally prohibited second prosecution, no double jeopardy attached.
Mr. Justice Black dissented, joined in by Mr. Chief Justice Warren and Mr.
Justice Douglas, with Mr. Justice Brennan writing a separate dissenting
opinion. Black rued that the Courts ruling by a majority of one only resulted
in "further limiting the already weakened constitutional guarantees against
double prosecution," citing the earlier case of United States v. Lanza,[50]
where the Court allowed the federal conviction and punishment of a man
previously convicted and punished for identical acts by a state court. The
dissent called attention to the fact that in Bartkus, for the first time in its
history, the Court allowed the state conviction of a defendant already
acquitted of the same offense in the federal court. This, Mr. Justice Black
asserted, was unacceptable, for as the Court previously found in Palko v.
Connecticut,[51] "double prosecutions for the same offense are so contrary
to the spirit of our free country that they violate even the prevailing view of
the Fourteenth Amendment since some of the privileges and immunities of
434
the Bill of Rights . . . have been taken over and brought within the Fourteenth
Amendment by process of absorption x x x x One may infer, from the fewness
of the cases, that retrials after acquittal have been considered particularly
obnoxious, worse even, in the eyes of many, than retrials after conviction."
Whether such forceful pronouncements steered back into course meandering
views on double jeopardy is open to question. Nonetheless, the case of Fong
Foo v. United States,[52] decided per curiam, reaffirmed the pronouncements
in Ball and Kepner that "the verdict of acquittal was final, and could not be
reviewed x x x without putting (the petitioners) twice in jeopardy, and thereby
violating the Constitution."
In the meantime, from 1907 up to 1970 the Criminal Appeals Act underwent
significant alterations. The 1942 amendment of its Section 682 permitted for
the first time appeals to the circuit appeals court from orders sustaining
demurrer to indictment in cases not directly appealable to the Supreme
Court.[53] However, due to the many modifications the law was subjected to,
construction and interpretation became more laborious, effectively
transforming appeals into highly technical procedures. As such, the Criminal
Appeals Act developed into a judicial bete noire, for even the U.S. Supreme
Court itself had "to struggle in a number of occasions with the vagaries of the
said Act."[54] In one of those unhappy efforts, it concluded that the Act was
"a failure x x x a most unruly child that has not improved with age."[55]
The U.S. Congress finally got rid of the dismal statute in 1970 and replaced
it with a new Criminal Appeals Act intended to broaden the right of
Government to appeal whenever the Constitution would permit. It was
apparent that the legislative body left to the courts the prerogative to draw the
constitutional limits of double jeopardy rather than define them itself. Since
then, pronouncements by the courts on the jouble jeopardy guarantee of the
Fifth Amendment focused on three (3) related protections: against a second
prosecution for the same offense after acquittal; against a second prosecution
for the same offense after conviction; and, against multiple punishments for
the same offense.[56]
In Wilson,[57] the Court expressed that the interests underlying these three
(3) protections are quite similar. Thus, when a defendant has been once
convicted and punished for a particular crime, principles of fairness and
finality require that he be not subjected to the possibility of further
punishment by being tried or sentenced for the same offense.[58] And when
a defendant has been acquitted of an offense, the Clause guarantees that the
State shall not be permitted to make repeated attempts to convict him,
"thereby subjecting him to embarrassment, expense and ordeal and
compelling him to live in a continuing state of anxiety and insecurity, as well
as enhancing the possibility that even though innocent he may be found
guilty."[59] It can thus be inferred from these cases that the policy of avoiding
multiple trials has been considered paramount so that exceptions to the rule
have been permitted only in few instances and under rigid conditions.
Accordingly, in United States v. Scott[60] the US Supreme Court synthesized
two (2) venerable principles of double jeopardy jurisprudence: first, the
successful appeal of a judgment of conviction on any ground other than the
insufficiency of the evidence to support the verdict poses no bar to further
prosecution on the same charge; and second, a judgment of acquittal, whether
based on a jury verdict of not guilty or on a ruling by the court that the
evidence is insufficient to convict, may not be appealed and terminates the
prosecution when a second trial would be necessitated by a reversal.[61] It
would seem that the conditionality of when a second trial would be
necessitated by a reversal was attached thereto because ordinarily, the
procedure obtaining was that if on appeal a judgment of acquittal is reversed,
i. e., a finding is had against the defendant, a remand of the case for another
trial may be allowed if needed.
At this juncture, it must be explained that under existing American law and
jurisprudence, appeals may be had not only from criminal convictions but
also, in some limited instances, from dismissals of criminal charges,
sometimes loosely termed "acquittals." But this is so as long as the judgments
of dismissals do not involve determination of evidence, such as when the
judge: (a) issues a post-verdict acquittal, i.e., acquits the defendant on a matter
of law after a verdict of guilty has been entered by a trier of facts (a jury); (b)
orders the dismissal on grounds other than insufficiency of evidence, as when
the statute upon which the indictment was based is defective; (c) conducts a
judicial process that is defective or flawed in some fundamental respect, such
as incorrect receipt or rejection of evidence, incorrect instructions, or
prosecutorial misconduct; (d) issues an order arresting judgment, i.e., an act
of a trial judge refusing to enter judgment on the verdict because of an error
appearing on the face of the record that rendered the judgment;[62] or, (e)
pronounces judgment on a special plea in bar (a non obstante plea) - one that
does not relate to the guilt or innocence of the defendant, but which is set up
as a special defense relating to an outside matter but which may have been
435
connected with the case.[63] Interestingly, the common feature of these
instances of dismissal is that they all bear on questions of law or matters
unrelated to a factual resolution of the case which consequently, on appeal,
will not involve a review of evidence. Its logical effect in American law is to
render appeals therefrom non-repugnant to the Double Jeopardy Clause.
This contextual situation in which appeals from dismissals of criminal cases
are allowed under American rules of procedure does not obtain in the
Philippines. To be sure, United States v. Scott positively spelled out that if an
acquittal was based on an appreciation of the evidence adduced, no appeal
would lie. Mr. Justice Rehnquist explained that what may seem superficially
to be a "disparity in the rules governing a defendants liability to be tried
again" refers to the underlying purposes of the Double Jeopardy Clause. He
elaborated that "(a)s Kepner and Fong Foo illustrate, the law attaches
particular significance to an acquittal. To permit a second trial after an
acquittal however mistaken x x x would present an unacceptably high risk
that the Government, with its vastly superior resources, might wear down the
defendant so that even though innocent he may be found guilty. x x x x On
the other hand, to require a criminal defendant to stand trial again after he has
successfully invoked the statutory right of appeal to upset his first conviction
is not an act of governmental oppression of the sort against which the x x x
Clause was intended to protect."
In proposing a re-evaluation of Philippine jurisprudence on double jeopardy,
petitioner insists that Wilson and Scott have unquestionably altered the
seascape of double jeopardy previously navigated by Kepner and Ball. Using
as its flagship the pronouncement in Wilson that appeals of acquittal are
possible provided the accused will not be subjected to a second trial, it argues
that this should apply to the case at bar because, anyway, a review of the
acquittal of private respondent Honorato Galvez will not result in another trial
inasmuch as the Court will only have to examine the evidence adduced below
to pass final judgment on the culpability of the accused.
Petitioners own hermeneutic sense of the phrase "another trial" is that which
solely adverts to a proceeding before a competent trial court that rehears the
case and receives evidence anew to establish the facts after the case has been
finally disposed of by the Supreme Court. Obviously, it adheres to the
Holmesian hypothesis in Kepner and, for that matter, the concept under
Spanish law then applicable in the Philippines before the American
colonization, that a trial consists of one whole continuing process from
reception of evidence by a trier of facts up to its final disposition by the
Supreme Court. But petitioner conveniently forgets that this theory has been
consistently spurned by both American and Philippine jurisprudence that has
faithfully adhered to the doctrine that an appeal of a judgment after the
defendant had been acquitted by the court in a bench trial is, quintessentially,
a new trial. In Kepner, the Court regarded the two (2) events, i. e., trial by the
lower court and the appellate proceedings, as equivalent to two (2) separate
trials, and the evil that the Court saw in the procedure was plainly that of
multiple prosecutions.[64] Although Kepner technically involved only one
proceeding, the Court deemed the second factfinding, that is, the review by
the appellate court, as the equivalent of a second trial. Accordingly, in
subsequent cases, the Court has treated the Kepner principle as being
addressed to the evil of successive trials.[65]
No less than the case of Wilson,[66] petitioners main anchor for its
propositions, affirms this rule. There, the Court emphasized that it has, up to
the present, rejected the theory espoused by the dissenting Mr. Justice Holmes
in Kepner that " a man cannot be said to be more than once in jeopardy in the
same cause however often he may be tried. The jeopardy is one continuing
jeopardy, from its beginning to the end of the cause." It declared
unequivocally that "we continue to be of the view that the policies underlying
the Double Jeopardy Clause militate against permitting the Government to
appeal after a verdict of acquittal." Wilson therefore pronounced that if
acquittal is declared on the basis of evidence adduced, double jeopardy
attaches for that particular cause.
To explain further, Wilson involved an appeal by Government of a post-
verdict ruling of law issued by the trial judge resulting in the acquittal of the
defendant due to pre-indictment delay (a delay between the offense and the
indictment prejudiced the defendant) after a verdict of guilty had been entered
by the jury. But it was not an acquittal that involved factual resolution. It was
one anchored on an extraneous cause. Factual resolution is defined in United
States v. Sorenson[67] following the rulings in Ball, Fong Foo and Sisson as
the finding that government failed to prove all the elements of the offense. It
is clear therefore that the acquittal of Wilson, not being based on evidence,
could be appealed. The rule therefore fixed in Wilson is that where a judge
holds for the defendant on a ruling of law, and not on the basis of evidence,
after a jury entered a verdict of guilty, the prosecution may appeal the
acquittal without violating double jeopardy, as this is allowed under the
pertinent law.[68] This is so since no second trial will ensue, as a reversal on
436
appeal would merely reinstate the jurys verdict.[69] And if the prosecution is
upheld, the case simply goes back to the trial court for disposition of the
remaining matters. It bears emphasis that in Wilson, no double jeopardy
problem was presented because the appellate court, upon reviewing the
asserted legal errors of the trial judge, could simply order the jurys guilty
verdict reinstated, no new factfinding would be necessary, and the defendant
would not be put twice in jeopardy.[70]
The case of Scott, also considerably relied upon by petitioner, involved an
accused who, having been indicted for several offenses, himself moved for
the dismissal of two (2) counts of the charges on the ground that his defense
was prejudiced by pre-indictment delay. The trial judge granted the motion.
Government appealed the dismissals but the appellate court rejected the
appeal on the basis of double jeopardy. This time the US Supreme Court
reversed, holding that "(w)here a defendant himself seeks to avoid his trial
prior to its conclusion by a motion for a mistrial, the Double Jeopardy Clause
is not offended by a second prosecution. Such a motion by the defendant is
deemed to be a deliberate election on his part to forego his valued right to
have his guilt or innocence determined by the first trier of facts."
The inapplicability of this ruling to the case at bar is at once discernible. The
dismissal of the charges against private respondent Galvez was not upon his
own instance; neither did he seek to avoid trial, as it was in Scott, to be
considered as having waived his right to be adjudged guilty or innocent. Here,
trial on the merits was held during which both government and accused had
their respective day in court.
We are therefore insufficiently persuaded to adopt petitioners concept of
"another trial" because, as discussed above, it disregards the contextual
interpretation of the term in light of the legal and factual morphology of the
double jeopardy principle obtaining in Wilson and Scott. To sum up, in the
cause before us, the records show that respondent trial judge based his finding
of acquittal, no matter how erroneous it might seem to petitioner, upon the
evidence presented by both parties. The judgment here was no less than a
factual resolution of the case. Thus, to the extent that the post-verdict acquittal
in Wilson was based on a ruling of law and not on a resolution of facts,
Wilson is not, to reiterate, pertinent to nor persuasive in the case at bar. The
same observation holds true for Scott. That it was the defendant who secured
the dismissal of the charges against him without any submission to either
judge or jury as to his guilt or innocence, but on a ground totally outside
evidentiary considerations, i.e., pre-indictment delay, definitely forecloses
the applicability, if not relevance, of Scott to the instant case.
Wilson, Scott and all other pertinent American case law considered, it still
behooves us to examine if at this time there is need to rethink our juristic
philosophy on double jeopardy vis--vis acquittals. In this respect, it would be
instructive to see how Philippine law and jurisprudence have behaved since
Kepner. Has the principle since then beneficially evolved, or has it remained
an "unruly child that has not improved with age?"
The moorings of double jeopardy in the Philippines, as Mr. Justice Manuel
Moran observed in People v. Tarok,[71] are not indigenous but are a matter
of constitutional or statutory history. Enunciated in the Constitution of the
United States, from there it found its way into this country, first, in the
Philippine Bill of 1902, then in the Jones Law of 1916, and finally, in the
1935 Philippine Constitution. Being thus a mere recognition of the maxim of
the common law, and adopted from the Constitution of the United States, the
principle of double jeopardy followed in this jurisdiction the same line of
development - no narrower nor wider - as in the Anglo-Saxon jurisprudence.
While some reservations may be had about the contemporary validity of this
observation considering the variety of offsprings begotten, at least in the
United States, by the mother rule since then, perhaps it is safer to say that not
much deviation has occurred from the general rule laid out in Kepner. For
Kepner may be said to have been the lighthouse for the floundering issues on
the effect of acquittals on jeopardy as they sail safely home. The cases of
People v. Bringas,[72] People v. Hernandez,[73] People v. Montemayor,[74]
City Fiscal of Cebu v. Kintanar,[75] Republic v. Court of Appeals,[76] and
Heirs of Tito Rillorta v. Firme,[77] to name a few, are illustrative. Certainly,
the reason behind this has not been due to a stubborn refusal or reluctance to
keep up with the Joneses, in a manner of speaking, but to maintain fidelity to
the principle carefully nurtured by our Constitution, statutes and
jurisprudence. As early as Julia v. Sotto[78] the Court warned that without
this safeguard against double jeopardy secured in favor of the accused, his
fortune, safety and peace of mind would be entirely at the mercy of the
complaining witness who might repeat his accusation as often as dismissed
by the court and whenever he might see fit, subject to no other limitation or
restriction than his own will and pleasure.
437
The 1935 Philippine Constitution provided in its Sec. 20, Art. III, that "(n)o
person shall be twice put in jeopardy of punishment for the same offense. If
an act is punished by a law and an ordinance, conviction or acquittal under
either shall constitute a bar to another prosecution for the same act." The
discussions by the members of the Constitutional Convention of 1934 on the
effect on double jeopardy of an appeal from a judgment of acquittal are
enlightening. Foreclosing appeal on a judgment of acquittal was recognized
by the Convention and the proposal to make an appeal from acquittal
permissible even only "on questions of law provided that a verdict in favor of
the defendant shall not be set aside by reason thereof" was strongly voted
down. Thus -
MR. GULLAS: Dear Colleagues x x x x I wish to summarize our points. The
amendment is commendable, but we submit that the reason against far
outweighs the reason in favor of it. In the first place, it would tend to
multiplicity of suits and thus increase the burden of the Supreme Court.
Second, suits will be expensive if we meet fiscals who have an exaggerated
opinion of themselves, who have more ego than gray matter or more amor
propio. In the third place, as has been stated by a certain Gentleman, the
provision would convert the Supreme Court into a sort of academy of
consulting body. In the fourth place, as pointed out by Mr. Sevilla, fights in
the Supreme Court would be one-sided. In the fifth place, as demonstrated by
Delegate Labrador, the matter should be procedural rather than constitutional.
And lastly, as explained by Delegate Singson Encarnacion, should the
Supreme Court reverse the judgment of the lower court, the defendant would
suffer morally for the rest of his life. He would walk around under a veil of
humiliation, carrying with him a stigma.
For all these reasons, Mr. President, we oppose the amendment.
PRESIDENT: We can vote on the amendment. (Various delegates: YES).
Those who are in favor of the amendment please say YES. (A minority:
YES). Those against the amendment say NO. (A majority: NO). The
amendment is rejected x x x x
(1934 Constitutional Convention Record, Journal No. 95, November 24,
1934, p. 361)
The case of People v. Bringas[79] was the first case to be decided under this
Constitution pertinent to the matter at hand. There the Supreme Court, guided
by Kepner, cited its finding in United States v. Tam Yung Way[80] against
the right of appeal by the government from a judgment discharging the
defendant in a criminal case after he has been brought to trial, whether
defendant was acquitted on the merits or whether his discharge was based
upon the trial courts conclusion of law that the trial had failed for some reason
to establish his guilt as charged.
The Bill of Rights of the 1973 Constitution, specifically Sec. 22, Art. IV
thereof, reproduced verbatim the same double jeopardy provision of the 1935
Constitution. So did the 1987 Freedom Constitution drafted by the 1986
Constitutional Commission.
Noteworthy is that during the deliberations by the 1986 Constitutional
Commission attempts were made to introduce into the Fundamental Law the
right of government to appeal verdicts of acquittal promulgated by trial
courts. The proposed text for Sec. 14, Art. VIII, on the Judicial Department
read as follows -
Sec. 12. - x x x x An appeal by the State and/or offended party from a
judgment of acquittal may be allowed in the discretion of the Supreme Court
by a petition for review on certiorari on the ground that it is manifestly against
the evidence with grave abuse of discretion amounting to lack of
jurisdiction.[81]
This proposal was strongly opposed, the controlling consideration as
expressed by Commissioner Rustico de los Reyes being the "inequality of the
parties in power, situation and advantage in criminal cases where the
government, with its unlimited resources, trained detectives, willing officers
and counsel learned in the law, stands arrayed against a defendant unfamiliar
with the practice of the courts, unacquainted with their officers or attorneys,
often without means and frequently too terrified to make a defense, if he had
one, while his character and his life, liberty or property rested upon the result
of the trial."[82]
Commissioner Joaquin Bernas likewise articulated his fear that we could be
subjecting an accused individual to a very serious danger of harassment from
a prosecutor x x x x The harm, however, which will follow from waving this
flag of possibility of appeal x x x could be much more than letting a guilty
person go."[83] Put to a vote, the proposal was defeated.[84]
438
Then again, during the debates on double jeopardy under Sec. 23, Art. III, on
the Bill of Rights of the Constitution, Commissioner Ambrosio B. Padilla
reopened the matter already settled at the deliberations on the article on the
Judiciary. The following exchanges ensued:
MR. PADILLA. x x x On Section 23, on double jeopardy, there was Davide
resolution which allowed an appeal in a judgment of acquittal in a criminal
case that states: An acquittal by a trial court is, however, appealable provided
that in such event, the accused shall not be detained or put up bail. This has
been deleted by the Commission x x x x
FR. BERNAS. Yes.
MR. PADILLA. I recall that when this same idea, but in different
phraseology, was presented and approved by the Committee on the Judiciary,
the great objection was that it would violate the immunity against double
jeopardy. But I recall, the sponsor admitted, after I had explained the day
before, that it did not violate double jeopardy but it was unnecessary and
harmful. What is the real position, Mr. Presiding Officer? Is it in violation of
double jeopardy or is it just because it need not be stated in the Bill of Rights
nor in the Article on the Judiciary?
FR. BERNAS: I explained my position on that, Mr. Presiding Officer, when
we considered the matter in the Article on the Judiciary. The position I took
was that it was not a departure from existing jurisprudence. In fact, it was
more strict than existing jurisprudence in that it required not just abuse of
discretion but it also required that the judgment be clearly against the
evidence.
MR. PADILLA. That is correct, Mr. Presiding Officer, because we want to
make the exercise of that right by the state or offended party restrictive not
only through a petition for review on certiorari in the discretion of the
Supreme Court which may dismiss it outright, but also on certain grounds
that are really covered by "in excess or lack of jurisdiction."
But my common impression, Mr. Presiding Officer, is that most lawyers are
of the opinion that when a judgment of acquittal is rendered by a trial court,
that is final, executory and not appealable.
Does not the sponsor think, Mr. Presiding Officer, an appeal from an arbitrary
judgment of acquittal rendered by a few corrupt judges of the offended party
or the state will improve the administration of justice?
FR. BERNAS. Mr. Presiding Officer, I have expressed my position on this
when we voted on Third Reading on the Article on the Judiciary. But if the
Commissioner wants to raise the matter for reconsideration, he can present a
motion on the floor.
Padilla did not ask for a reconsideration.[85]
The Rules of Court on Criminal Procedure relative to double jeopardy and
the effect thereon of acquittals adhere strictly to constitutional provisions.
The pertinent portions of Sec. 7 of Rule 117 thereof provide -
Sec. 7. Former conviction or acquittal; double jeopardy. - When an accused
has been convicted or acquitted, or the case against him dismissed or
otherwise terminated without his express consent by a court of competent
jurisdiction, upon a valid complaint or information or other formal charge
sufficient in form and substance to sustain a conviction and after the accused
had pleaded to the charge, the conviction or acquittal of the accused or the
dismissal of the case shall be a bar to another prosecution for the offense
charged, or for any attempt to commit the same or frustration thereof, or for
any offense which necessarily includes or is necessarily included in the
offense charged in the former complaint or information x x x x
From this procedural prescription alone, there can be no mistaking the
requisites for invoking double jeopardy: (a) a valid complaint or information;
(b) before a competent court before which the same is filed; (c) the defendant
had pleaded to the charge; and, (d) the defendant was acquitted, or convicted,
or the case against him dismissed or otherwise terminated without his express
consent.[86] It bears repeating that where acquittal is concerned, the rules do
not distinguish whether it occurs at the level of the trial court or on appeal
from a judgment of conviction. This firmly establishes the finality-of-
acquittal rule in our jurisdiction. Therefore, as mandated by our Constitution,
statutes and cognate jurisprudence, an acquittal is final and unappealable on
the ground of double jeopardy, whether it happens at the trial court level or
before the Court of Appeals.
439
In general, the rule is that a remand to a trial court of a judgment of acquittal
brought before the Supreme Court on certiorari cannot be had unless there is
a finding of mistrial, as in Galman v. Sandiganbayan.[87] Condemning the
trial before the Sandiganbayan of the murder of former Senator Benigno
"Ninoy" Aquino, which resulted in the acquittal of all the accused, as a sham,
this Court minced no words in declaring that "[i]t is settled doctrine that
double jeopardy cannot be invoked against this Court's setting aside of the
trial court's judgment of acquittal where the prosecution which represents the
sovereign people in criminal cases is denied due process x x x x [T]he sham
trial was but a mock trial where the authoritarian president ordered
respondents Sandiganbayan and Tanodbayan to rig the trial, and closely
monitored the entire proceedings to assure the predetermined final outcome
of acquittal and absolution as innocent of all the respondent-accused x x x x
Manifestly, the prosecution and the sovereign people were denied due process
of law with a partial court and biased Tanodbayan under the constant and
pervasive monitoring and pressure exerted by the authoritarian president to
assure the carrying out of his instructions. A dictated, coerced and scripted
verdict of acquittal, such as that in the case at bar, is a void judgment. In legal
contemplation, it is no judgment at all. It neither binds nor bars anyone. Such
a judgment is a lawless thing which can be treated as an outlaw. It is a terrible
and unspeakable affront to the society and the people. 'To paraphrase
Brandeis: If the authoritarian head of government becomes the lawbreaker,
he breeds contempt for the law; he invites every man to become a law unto
himself; he invites anarchy. The contention of respondent-accused that the
Sandiganbayan judgment of acquittal ended the case and could not be
appealed or reopened without being put in double jeopardy was forcefully
disposed of by the Court in People v. Court of Appeals:[88]
x x x x That is the general rule and presupposes a valid judgment. As earlier
pointed out, however, respondent Court's Resolution of acquittal was a void
judgment for having been issued without jurisdiction. No double jeopardy
attaches, therefore. A void judgment is, in legal effect, no judgment at all. By
it no rights are divested. Through it, no rights can be attained. Being
worthless, all proceedings founded upon it are equally worthless. It neither
binds nor bars anyone. All acts performed under it and all claims flowing out
of it are void x x x x Private respondents invoke 'justice for the innocent.' For
justice to prevail the scales must balance. It is not to be dispensed for the
accused alone. The interests of the society which they have wronged, must
also be equally considered. A judgment of conviction is not necessarily a
denial of justice. A verdict of acquittal neither necessarily spells a triumph of
justice. To the party wronged, to the society offended, it could also mean
injustice. This is where the Courts play a vital role. They render justice where
justice is due.
Thus, the doctrine that "double jeopardy may not be invoked after trial" may
apply only when the Court finds that the criminal trial was a sham because
the prosecution representing the sovereign people in the criminal case was
denied due process.[89] The Court in People v. Bocar[90] rationalized that
the "remand of the criminal case for further hearing and/or trial before the
lower courts amounts merely to a continuation of the first jeopardy, and does
not expose the accused to a second jeopardy."[91]
The fundamental philosophy highlighting the finality of an acquittal by the
trial court cuts deep into "the humanity of the laws and in a jealous
watchfulness over the rights of the citizen, when brought in unequal contest
with the State x x x x"[92] Thus Green expressed the concern that "(t)he
underlying idea, one that is deeply ingrained in at least the Anglo-American
system of jurisprudence, is that the State with all its resources and power
should not be allowed to make repeated attempts to convict an individual for
an alleged offense, thereby subjecting him to embarrassment, expense and
ordeal and compelling him to live in a continuing state of anxiety and
insecurity, as well as enhancing the possibility that even though innocent, he
may be found guilty."[93]
It is axiomatic that on the basis of humanity, fairness and justice, an acquitted
defendant is entitled to the right of repose as a direct consequence of the
finality of his acquittal. The philosophy underlying this rule establishing the
absolute nature of acquittals is "part of the paramount importance criminal
justice system attaches to the protection of the innocent against wrongful
conviction."[94] The interest in the finality-of-acquittal rule, confined
exclusively to verdicts of not guilty, is easy to understand: it is a need for
"repose," a desire to know the exact extent of one's liability.[95] With this
right of repose, the criminal justice system has built in a protection to insure
that the innocent, even those whose innocence rests upon a jurys leniency,
will not be found guilty in a subsequent proceeding.[96]
Related to his right of repose is the defendants interest in his right to have his
trial completed by a particular tribunal.[97] This interest encompasses his
right to have his guilt or innocence determined in a single proceeding by the
initial jury empanelled to try him, for societys awareness of the heavy
440
personal strain which the criminal trial represents for the individual defendant
is manifested in the willingness to limit Government to a single criminal
proceeding to vindicate its very vital interest in enforcement of criminal
laws.[98] The ultimate goal is prevention of government oppression; the goal
finds its voice in the finality of the initial proceeding.[99] As observed in
Lockhart v. Nelson,[100] "(t)he fundamental tenet animating the Double
Jeopardy Clause is that the State should not be able to oppress individuals
through the abuse of the criminal process. Because the innocence of the
accused has been confirmed by a final judgment, the Constitution
conclusively presumes that a second trial would be unfair.[101]
Petitioner resists the applicability of the finality-of-acquittal doctrine to the
Philippine adjudicative process on the ground that the principle is endemic to
the American justice system as it has specific application only to jury verdicts
of acquittal, and thus finds no valid use in our jurisdiction since the
underlying rationale of jury acquittals, a special feature of American
constitutional law, has no parallel nor analogy in the Philippine legal system.
This is a rather strained if not facile approach to the issue at hand, for it
attempts to introduce the theory that insofar as the objective of factfinding is
concerned, factfinding forming the core of the philosophy behind double
jeopardy, there exists a difference between a jury acquittal and a judge
acquittal, Philippine version. To support its contention, petitioner sedulously
explains that in the United States there is an emerging consensus to
differentiate the constitutional impact of jury verdicts of acquittal vis--vis
judgments of acquittal rendered by the bench. While this consensus may have
emerged in the United States, it is not difficult to surmise that it must have
been so because of countless instances of conflict between jury verdicts and
judgments of trial judges in the same case. Resultantly, procedural statutes
and jurisprudence have been wont to draw lines of distinction between the
two, hopefully to keep each other at bay. Since this phenomenon does not
occur in our jurisdiction, as we have no juries to speak of, petitioners
hypothesis is inappropriate.
Be that as it may, the invalidity of petitioners argument lies in its focus on the
instrumentality empowered to rule against the evidence, i.e., the American
jury versus the Philippine judge, no matter how emphatic it qualifies its
proposition with the phrase "underlying rationale of jury acquittals," rather
than on the essential function of factfinding itself which consists of reception,
sifting and evaluation of evidence. Where the main task of factfinding is
concerned, there exists no difference between the American jury and the
Philippine trial judge. Both are triers of facts. This much petitioner has to
concede. The attempt therefore to close the door on the applicability of the
finality rule to our legal system abjectly fails when one considers that,
universally, the principal object of double jeopardy is the protection from
being tried for the second time, whether by jury or judge. Thus, "emerging
American consensus on jury acquittals" notwithstanding, on solid
constitutional bedrock is well engraved our own doctrine that acquittals by
judges on evidentiary considerations cannot be appealed by government. The
jurisprudential metes and bounds of double jeopardy having been clearly
defined by both constitution and statute, the issue of the effect of an appeal
of a verdict of acquittal upon a determination of the evidence on the
constitutionally guaranteed right of an accused against being twice placed in
jeopardy should now be finally put to rest.
Petitioner assails the decision rendered by the court a quo as blatantly
inconsistent with the material facts and evidence on record, reason enough to
charge respondent judge with grave abuse of discretion amounting to lack of
jurisdiction resulting in a denial of due process. Citing People v. Pablo,[102]
it alleges that "respondent aggravated his indiscretion by not x x x reviewing
the evidence already presented for a proper assessment x x x x It is in
completely ignoring the evidence already presented x x x that the respondent
judge committed a grave abuse of discretion." It adds that "discretion must
be exercised regularly, legally and within the confines of procedural due
process, i.e., after evaluation of the evidence submitted by the prosecution.
Any order issued in the absence thereof is not a product of sound judicial
discretion but of whim and caprice and outright arbitrariness."[103]
Private respondent remonstrates against the propriety of petitioners certiorari
as a mode of impugning the judgment of acquittal not only as a strategy to
camouflage the issue of double jeopardy but also for the fact that, contrary to
petitioners assertions, evidence in the case at bar was subjected to scrutiny,
review, assessment and evaluation by respondent trial judge. By reason
thereof, there cannot be perceived grave abuse of discretion on the part of the
judge to warrant issuance of the great writ of certiorari.
We agree. The office of the common law writ of certiorari is to bring before
the court for inspection the record of the proceedings of an inferior tribunal
in order that the superior court may determine from the face of the record
whether the inferior court has exceeded its jurisdiction, or has not proceeded
according to the essential requirements of the law. However, the original
441
function and purpose of the writ have been so modified by statutes and
judicial decisions. It is particularly so in the field of criminal law when the
state is applying for the writ and problems arise concerning the right of the
state to appeal in a criminal case. As a general rule, the prosecution cannot
appeal or bring error proceedings from a judgment in favor of the defendant
in a criminal case in the absence of a statute clearly conferring that right. The
problem comes into sharper focus when the defendant contends, in effect, that
the prosecution is attempting to accomplish by the writ what it could not do
by appeal, and that his constitutional rights are being thus encroached
upon.[104]
Generally, under modern constitutions and statutes, provisions are available
as guides to the court in determining the standing of the prosecution to secure
by certiorari a review of a lower court decision in a criminal case which has
favored the defendant. In most instances, provisions setting forth the scope
and function of certiorari are found together with those relating to the right
of the state to appeal or bring error in criminal matters. There is some
indication that courts view the writ of certiorari as an appeal in itself where
the applicant shows that there is no other adequate remedy available,[105]
and it is not uncommon to find language in cases to the effect that the state
should not be permitted to accomplish by certiorari what it cannot do by
appeal.[106] Thus, if a judgment sought to be reviewed was one entered after
an acquittal by a jury or the discharge of the accused on the merits by the trial
court, the standing of the prosecution to review it by certiorari is far more
likely to be denied than if it were such an order as one sustaining a demurrer
to, or quashing the indictment, or granting a motion for arrest of judgment
after a verdict of guilty.[107]
Philippine jurisprudence has been consistent in its application of the Double
Jeopardy Clause such that it has viewed with suspicion, and not without good
reason, applications for the extraordinary writ questioning decisions
acquitting an accused on ground of grave abuse of discretion.
The petition at hand which seeks to nullify the decision of respondent judge
acquitting the accused Honorato Galvez goes deeply into the trial court's
appreciation and evaluation in esse of the evidence adduced by the parties. A
reading of the questioned decision shows that respondent judge considered
the evidence received at trial. These consisted among others of the
testimonies relative to the positions of the victims vis--vis the accused and
the trajectory, location and nature of the gunshot wounds, and the opinion of
the expert witness for the prosecution. While the appreciation thereof may
have resulted in possible lapses in evidence evaluation, it nevertheless does
not detract from the fact that the evidence was considered and passed upon.
This consequently exempts the act from the writs limiting requirement of
excess or lack of jurisdiction. As such, it becomes an improper object of and
therefore non-reviewable by certiorari. To reiterate, errors of judgment are
not to be confused with errors in the exercise of jurisdiction.
WHEREFORE, the instant petition for certiorari is DISMISSED.
SO ORDERED.
Vitug, Kapunan, Mendoza, Quisumbing, Purisima, Pardo, Buena, Gonzaga-
Reyes, and De Leon, Jr., JJ., concur.
Davide, Jr., C.J., and Puno, J., agree with J. Panganibans separate opinion.
Melo, J., in the result.
Panganiban, J., see separate opinion.
Ynares-Santiago, J., on leave.
SEPARATE OPINION
PANGANIBAN, J.:
I concur with Justice Josue N. Bellosillo that the Petition at bar should be
dismissed on two grounds: (1) the private respondent (defendant in the
criminal case below) is already dead, so this Petition has become moot and
academic;1 and, in any event, (2) the petitioner has failed to show that public
respondent, in issuing the assailed Decision, had acted without jurisdiction or
with grave abuse of discretion amounting to lack or excess of jurisdiction.
I write, however, to stress that a petition for certiorari under Rule 65 of the
Rules of Court is a proper remedy to challenge an acquittal on the ground that
the trial court had acted without jurisdiction or with grave abuse of discretion
amounting to lack or excess of jurisdiction. This is a hornbook doctrine. As
held by the Court in People v. Court of Appeals & Maquiling:2
442
To question the jurisdiction of the lower court or agency exercising judicial
or quasi-judicial functions, the remedy is a special civil action for certiorari
under Rule 65 of the Rules of Court. The petitioner in such cases must clearly
show that the public respondent acted without jurisdiction or with grave abuse
of discretion amounting to lack or excess of jurisdiction.3 By grave abuse of
discretion is meant such 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 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.4
xxx [H]owever, xxx no grave abuse of discretion may be attributed to the
public respondent on the ground of misappreciation of facts and evidence.5
A writ of certiorari may not be used to correct a lower tribunals evaluation of
the evidence and factual findings. In other words, it is not a remedy for mere
errors of judgment, which are correctible by an appeal or a petition for review
under Rules 45 of the Rules of Court.6
jurisdiction is, in legal contemplation, necessarily null and void and does not
exist.10 In criminal cases, it cannot be the source of an acquittal.
The instant Petition for Certiorari, however, fails to show grave abuse of
discretion amounting to lack or excess of jurisdiction on the part of the trial
court. Rather, it effectively urges this Court to re-evaluate the lower courts
appreciation of the evidence, which cannot be done by certiorari. As held also
in Maquiling:
While certiorari may be used to correct an abusive acquittal, the petitioner in
such extraordinary proceeding must clearly demonstrate that the lower court
blatantly abused its authority to a point so grave as to deprive it of its very
power to dispense justice. On the other hand, if the petition, regardless of its
nomenclature, merely calls for an ordinary review of the findings of the court
a quo, the constitutional right against double jeopardy would be violated.
Such recourse is tantamount to converting the petition for certiorari into an
appeal, contrary to the express injunction of the Constitution, the Rules of
Court and prevailing jurisprudence on double jeopardy.

In fine, certiorari will issue only to correct errors of jurisdiction, not errors of
procedure or mistakes in the findings or conclusions of the lower court.7 As
long as a court acts within its jurisdiction, any alleged errors committed in
the exercise of its discretion will amount to nothing more than errors of
judgment, which are reviewable by timely appeal, not by a special civil action
for certiorari.8

By contending that the challenged Decision is void for having been issued
with grave abuse of discretion amounting to lack or excess of jurisdiction, the
petition does not violate the right of the accused against double jeopardy. It
is elementary that double jeopardy attaches only when the following elements
concur: (1) the accused are charged under a complaint or information
sufficient in form and substance to sustain their conviction; (2) the court has
jurisdiction; (3) the accused have been arraigned and have pleaded; and (4)
they are convicted or acquitted, or the case is dismissed without their
consent.9

Thus, even assuming that a writ of certiorari is granted, the accused would
not be placed in double jeopardy because, from the very beginning, the lower
tribunal had acted without jurisdiction. Precisely, any ruling issued without

443

85 Phil. 766
MORAN, J.:
Petitioner Conrado Melo was charged in the Court of First Instance of Rizal,
on December 27, 1949, with frustrated homicide, for having allegedly
inflicted upon Benjamin Obillo, with a kitchen knife and with intent to kill,
several serious wounds on different parts of the body, requiring medical
attendance for a period of more than 30 days, and incapacitating him from
performing his habitual labor for the same period of time. On December 29,
1949, at eight o'clock in the morning, the accused pleaded not guilty to the
offense charged, and at 10:15 in the evening of the same day Benjamin Obillo
died from his wounds. Evidence of death was available to the prosecution
only on January 3, 1950, and on the following day, January 4, 1950, an
amended information was filed charging the accused with consummated
homicide. The accused filed a motion to quash the amended information
alleging double jeopardy, motion that was denied by the respondent court;
hence, the instant petition for prohibition to enjoin the respondent court from
further entertaining the amended information.
Brushing aside technicalities of procedure and going into the substance of the
issues raised, it may readily be stated that the amended information was
rightly allowed to stand. Rule 106, sec.13, 2d paragraph, is as follows:
"If it appears at any time before judgment that a mistake has been made in
charging the proper offense, the court may dismiss the original complaint or
information and order the filing of a new one charging the proper offense,
provided the defendant would not be placed thereby in double jeopardy, and
may also require the witnesses to give bail for their appearance at the trial."
Under this provision, it was proper for the Court to dismiss the first
information and order the filing of a new one for the reason that the proper
offense was not charged in the former and the latter did not place the accused
in a second jeopardy for the same or identical offense.
"No person shall be twice put in jeopardy of punishment for the same
offense," according to Art. III, section 1 (20) of our Constitution. The rule of
"double jeopardy" had a settled meaning in this jurisdiction at the time our
Constitution was promulgated. It meant that when a person is charged with
an offense and the case is terminated either by acquittal or conviction or in
any other manner without the consent of the accused, the latter cannot again
be charged with the same or identical offense. This principle is founded upon
the law of reason, justice and conscience. It is embodied in the maxim of the
civil law non bis in idem, in the common law of England, and undoubtedly
in every system of jurisprudence, and instead of having specific origin It
simply always existed. It found expression in the Spanish law and in the
Constitution of the United States and is now embodied in our own
Constitution as one of the fundamental rights of the citizens.
It must be noticed that the protection of the Constitutional inhibition is against
a second jeopardy for the same offense, the only exception being, as stated in
the same Constitution, that "if an act is punished by a law and an ordinance,
conviction or acquittal under either shall constitute a bar to another
prosecution for the same act." The phrase same offense, under the general
rule, has always been construed to mean not only that the second offense
charged is exactly the same as the one alleged in the first information, but
also that the two offenses are identical. There is identity between the two
444
offenses when the evidence to support a conviction for one offense would be
sufficient to warrant a conviction for the other. This so-called "same-evidence
test" which was found to be vague and deficient, was restated by the Rules of
Court in a clearer and more accurate form. Under said Rules there is identity
between two offenses not only when the second offense is exactly the same
as the first, but also when the second offense is an attempt to commit the first
or a frustration thereof, or when it necessarily includes or is necessarily
Included in the offense charged in the first information. (Rule 113, sec. 9;
U.S. vs. Lim Suco, 11 Phil. 484; U.S. vs. Ledesma, 29 Phil. 431; People vs.
Martinez, 55 Phil. 6). In this connection, an offense may be said to necessarily
include another when some of the essential ingredients of the former as
alleged in the information constitute the latter. And vice-versa, an offense
may be said to be necessarily included in another when all the ingredients of
the former constitute a part of the elements constituting the latter. (Rule 116,
sec. 5). In other words, one who has been charged with an offense cannot be
again charged with the same or identical offense though the latter be lesser or
greater than the former. "As the Government cannot begin with the highest,
and then go down step by step, bringing the man into jeopardy for every
dereliction included therein, neither can it begin with the lowest and ascend
to the highest with precisely the same result." (People vs. Cox, 107 Mich.
435, quoted with approval in U.S. vs. Lim Suco, 11 Phil. 484; see also U.S.
vs. Ledesma, 29 Phil. 431 and People vs. Martinez, 55 Phil. 6, 10).
This rule of identity does not apply, however, when the second offense was
not in existence at the time of the first prosecution, for the simple reason that
in such case there is no possibility for the accused, during the first
prosecution, to be convicted for an offense that was then inexistent. Thus,
where the accused was charged with physical injuries and after conviction the
injured person dies, the charge for homicide against the same accused does
not put him twice in jeopardy. This is the ruling laid down by the Supreme
Court of the United States In the Philippine case of Diaz vs. U.S., 223 U.S.
442, followed by this Court in People vs. Espino, G.R. No. L-4-6123, 69
Phil., 471, and these two cases are similar to the instant case. Stating it in
another form, the rule is that "where after the first prosecution a new fact
supervenes for which the defendant is responsible, which changes the
character of the offense and, together with the facts existing at the time,
constitutes a new and distinct offense" (15 Am. Jur. 66), the accused cannot
be said to be in second jeopardy if indicted for the new offense.
This is the meaning of "double jeopardy" as intended by our Constitution for
it was the one prevailing in the jurisdiction at the time the Constitution was
promulgated, and no other meaning could have been intended by our Rules
of Court.
Accordingly, an offense may be said to necessarily include or to be
necessarily included in another offense, for the purpose of determining the
existence of double jeopardy, when both offenses were in existence during
the pendency of the first prosecution, for otherwise, if the second offense was
then inexistent, no Jeopardy could attach therefor during the first prosecution,
and consequently a subsequent charge for the same cannot constitute second
jeopardy. By the very nature of things there can be no double jeopardy under
such circumstance, and our Rules of Court cannot be construed to recognize
the existence of a condition where such condition in reality does not exist.
General terms of a statute or regulation should be so limited in their
application as not to lead to injustice, oppression, or an absurd consequence.
It will always, therefore, be presumed that exceptions have been intended to
their language which would avoid results of this character. (In re Allen 2 Phil.
641).
When the Rules of Court were drafted, there was absolutely no intention of
abandoning the ruling laid down in the Diaz ease, and the proof of this is that
although the said Rules were approved on December 1939, yet on January
30, 1940, this Court decided the Espino case reiterating therein the Diaz
doctrine. Had that doctrine been abandoned deliberately by the Rules of Court
as being unwise, unjust or obnoxious, logically it would have likewise been
repudiated in the Espino case by reason of consistency and as a matter of
justice to the accused, who should In consequence have been acquitted
instead of being sentenced to a heavy penalty upon the basis of a doctrine that
had already been found to be throng. There was absolutely no reason to
preclude this Court from repealing the doctrine in the Espino case, for as a
mere doctrine it could be repealed at any time in the decision of any case
where it is invoked. The fact that it was not so abandoned but reiterated, is a
clear proof that the mind of the Court, even after the approval of the Rules,
was not against but in favor of said doctrine.
For these reasons we expressly repeal the ruling laid down In People vs.
Tarok, 73 Phil., 260, as followed in People vs. Villasis, 46 Off. Gaz. (Supp.
to No. 1), p. 268. Such ruling is not only contrary to the real meaning of
"double jeopardy" as intended by the Constitution and by the Rules of Court
445
but is also obnoxious to the administration of justice. If, in obedience to the
mandate of the law, the prosecuting officer files an information within six
hours after the accused is arrested, and the accused claiming his constitutional
right to a speedy trial is immediately arraigned, and later on a new fact
supervenes which, together with the facts existing at the time, constitutes a
more serious offense, under the Tarok ruling, no way is open by which the
accused may be penalized in proportion to the enormity of his guilt.
Furthermore, such a ruling may open the way to suspicions or charges of
collusion between the prosecuting officers and the accused, to the grave
detriment of public interest and confidence in the administration of justice,
which cannot happen under the Diaz ruling.
Before closing, it is well to observe that when a person who has already
suffered his penalty for an offense, is charged with a new and greater offense
under the Diaz doctrine herein reiterated, said penalty may be credited to him
in case of conviction for the second offense.
For all the foregoing, the petition is denied, and the respondent Court may
proceed to the trial of the criminal case under the amended information.
Without costs.
Ozaeta, Pablo, Padilla, Tuason, Montemayor, and Reyes, JJ., concur.
G.R. No. L-13315 April 27, 1960
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
BUENAVENTURA BULING, defendant-appellant.
Assistant Solicitor General Esmeraldo Umali and Solicitor Emerito M. Salva
for appellee.
Francisco A. Puray for appellant.
LABRADOR, J.:
Appeal from a judgment of the Court of First Instance of Leyte, Hon.
Gaudencio Cloribel, presiding, finding the accused Buenaventura Buling
guilty of serious physical injuries and sentencing him to imprisonment of four
months of arresto mayor, as minimum, to one year of prision correccional, as
maximum, and to indemnify the offended party.
The following uncontroverted facts appear in the record: On December 7,
1956, the accused was charged in the Justice of the Peace Court of Cabalian,
Leyte, with the crime of less serious physical injuries for having inflicted
wounds on complaining witness Isidro Balaba, which according to the
complaint would "require, medical attendance for a period from 10 to 15 days
and will incapacitate the said Isidro Balaba from the performance of his
customary labors for the game period of time." The accused pleaded guilty to
the complaint and was on December 8, 1957 found guilty of the crime
charged and sentenced to 1 month and 1 day of arresto mayor and to pay
damages to the offended party in the sum of P20.00, with subsidiary
imprisonment in case of insolvency. On the same day he began to serve his
sentence and has fully served the same.
However, Balaba's injuries did not heal within the period estimated, and so
on February 20, 1957, the Provincial Fiscal filed an information against the
accused before the Court of First Instance of Leyte, charging him of serious
physical injuries. The information alleges that the wounds inflicted by the
accused on Isidro Balaba require medical attendance and incapacitated him
for a period of from 1 ½ months to 2 ½ months. After trial the accused was
found guilty of serious physical injuries and sentenced in the manner
indicated in first paragraph hereof. This is the decision now sough to be set
aside and reversed in this appeal.
The only question for resolution by this Court whether the prosecution and
conviction of Balaba for less serious physical injuries is a bar to the second
prosecution for serious physical injuries.
Two conflicting doctrines on double jeopardy have been enunciated by this
Court, one in the cases of People vs. Tarok, 73 Phil., 260 and People vs.
Villasis, 81 Phil., 881, and the other, in the cases of Melo vs. People, 85 Phil.,
766, People vs. Manolong, 85 Phil., 829 and People vs. Petilla, 92 Phil., 395.
But in Melo vs. People, supra, we expressly repealed our ruling in the case of
People vs. Tarok, supra, and followed in the case of People vs. Villasis, supra.
In the Melo vs. People case, we stated the ruling to be that:
. . . Stating it in another form, the rule is that "where after the first prosecution
a new fact supervenes for which the defendant is responsible, which changes
446
the character of the offense and, together with the facts existing at the time,
constitutes a new and distinct offense" (15 Am. Jur., 66), the accused cannot
be said to be in second jeopardy if indicted for the new offense. (85 Phil.,
769-770).
Do the facts in the case at bar justify the application of the new ruling? In
other words, has a new fact supervened, like death in the case of Melo vs.
People, which changes the character of the offense into one which was not in
existence at the time the case for less serious physical injuries was filed? We
do not believe that a new fact supervened, or that a new fact has come into
existence. What happened is that the first physician that examined the wounds
of the offended party certified on December 10, 1956 that the injury was as
follows: "wound, incised, wrist lateral, right, 3/4 inch long, sutured" and that
the same would take from 10 to 15 days to heal and incapacitated (the
wounded man) for the same period of time from his usual work (Exh. 3). It
was on the basis of this certificate that on December 8, 1956, defendant-
appellant was found guilty of less serious physical injuries and sentenced to
imprisonment of 1 month and 1 day of arresto mayor, etc.
But on January 18, 1957, another physician examined the offended party,
taking an X-ray picture of the arm of the offended party which had been
wounded. The examination discloses, according to the physician, the
following injuries:
Old stab wound 4 inches long. With infection, distal end arm, right. X-ray
plate finding after one month and 12 days — Fracture old oblique, incomplete
distal end, radius right, with slight calus. (Exh. "E").
and the certification is to the effect that treatment will take from 1 ½ months
to 2 ½ months barring complications.
Counsel for the appellant claims that no fact had supervened in the case at
bar, as a result of which another offense had been ommitted. It is argued that
the injury and the condition thereof was the same when the first examination
was made on December 10, 1956, as when the examination was made on
January 18, 1957, and that if any new fact had been disclosed in the latter
examination failure of this new fact to be disclosed in the previous
examination may be attributed to the incompetence on the part of the
examining physician. We find much reason in this argument. What happened
is no X-ray examination of the wounded hand was made during the first
examination, which was merely superficial. The physician who made the first
examination could not have seen the fracture at the distal end of the right arm,
and this could only be apparent or visible by X-ray photography.
Under the circumstances above indicated, we are inclined to agree with the
contention made on behalf of appellant that no new supervening fact has
existed or occurred, which has transformed the offense from less serious
physical injuries to serious physical injuries.
But the Solicitor General cites the case of People vs. Manolong, supra, and
argues that our ruling in said case should apply to the case at bar, for the
reason that in the said case the first crime with which the accused was charged
was less serious physical injuries and the second one was serious physical
injuries and yet we held that there was no jeopardy. We have carefully
examined this case and have found that the first examination made of the
offended party showed injuries which would take from 20 to 30 days to heal,
whereas the subsequent examination disclosed that the wound of the offended
party would require medical attendance and incapacitate him for labor for a
period of 90 days, "causing deformity and the loss of the use of said member".
No finding was made in the first examination that the injuries had caused
deformity and the loss of the use of the right hand. As nothing was mentioned
in the first medical certificate about the deformity and the loss of the use of
the right hand, we presume that such fact was not apparent or could not have
been discernible at the time the first examination was made. The course (not
the length), of the healing of an injury may not be determined before hand; it
can only be definitely known after the period of healing has ended. That is
the reason why the court considered that there was a supervening fact
occurring since the filing of the original information.
But such circumstances do not exist in the case at bar. If the X-ray
examination discloses the existence of a fracture on January 17, 1957, that
fracture must have existed when the first examination was made on December
10, 1956. There is, therefore, no now or supervening fact that could be said
to have developed or arisen since the filing of the original action, which
would justify the application of the ruling enunciated by us in the cases of
Melo vs. People and People vs. Manolong, supra. We attribute the new
finding of fracture, which evidently lengthened the period of healing of the
wound, to the very superficial and inconclusive examination made on
December 10, 1956. Had an X-ray examination taken at the time, the fracture
would have certainly been disclosed. The wound causing the delay in healing
447
was already in existence at the time of the first examination, but said delay
was caused by the very superficial examination then made. As we have stated,
we find therefore that no supervening fact had occurred which justifies the
application of the rule in the case of Melo vs. People and People vs.
Manolong, for which reason we are constrained to apply the general rule of
double jeopardy.
We take this opportunity to invite the attention of the prosecuting officers that
before filing informations for physical injuries, thorough physical and
medical examinations of the injuries should first be made to avoid instances,
like the present, where by reason of the important Constitutional provision of
double jeopardy, the accused can not be held to answer for the graver offense
committed.
The decision appealed from is hereby reversed. The judgment of conviction
is set aside and the defendant-appellant acquitted of the charge of serious
physical injuries. Without costs.
G.R. Nos. 59568-76 January 11, 1990
PETER NIERRAS, petitioner,
vs.
HON. AUXENCIO C. DACUYCUY and HON. ANTONIO S. LOPEZ, in
their capacity as Presiding Judge, Branch IV, Court of First Instance of Leyte,
Palo, Leyte, and City Fiscal of Tacloban City, Leyte, respectively,
respondents.
Victor C. Veloso for petitioner.
PARAS, J.:
Before Us is a petition for certiorari with preliminary injunction for the
annulment of the resolution dated September 17, 1981 of the respondent
Judge Auxencio C. Dacuycuy in nine (9) criminal cases, entitled "People of
the Philippines v. Peter Nierras" docketed as Criminal Cases Nos. 4379,
4380, 4381, 4382, 4383, 4384, 4385, 4386 and 4387, for estafa under Article
315 (2-d) of the Revised Penal Code which denied petitioner's motion to
quash. Said motion to quash was filed by petitioner on the ground of double
jeopardy as these offenses were already included in Criminal Cases Nos.
3790, 3791, 3792, 3793, 4085, 4122, 4123, 4124, and 4125, entitled "People
of the Philippines v. Peter Nierras," for violation of the Bouncing Checks
Law or Batas Pambansa Blg. 22, pending before the lower court. In both sets
of criminal cases, petitioner entered a plea of not guilty upon arraignment
before the lower court. However, immediately after his plea of not guilty in
these estafa cases, petitioner moved in open court to be allowed to withdraw
his plea of not guilty upon his filing of a motion to quash, which was denied
by respondent Judge ruling as follows:
The motion to quash should be and is hereby denied. Accused Peter Nierras
allegedly issued the checks in favor of complainant Pilipinas Shell Petroleum
Corporation in payment of oil products which the latter delivered to him
simultaneously with the issuance of the checks.
xxx xxx xxx
. . . The crime of estafa committed by means of bouncing checks is not
committed by mere issuance of a check. Under Art. 315, par. 2 (d) of the
Revised Penal Code, as amended by Republic Act 4885, the following are the
elements of estafa: (1) the postdating or issuance of a check in payment of an
obligation contracted at the time the check was issued; (2) lack of or
insufficiency of funds to cover the check; and (3) damage to the payee thereof
(People v. Sabio, 86 SCRA 568). Under Batas Pambansa Bilang 22 (1979)
the mere issuance of a check without sufficient funds issued in payment of a
simultaneous obligation and the check was dishonored upon presentation for
that estafa is committed under the Revised Penal Code. At the same time, the
drawer will also be liable under Batas Pambansa Bilang 22 for offense of
issuing a check without sufficient funds (pp. 1-2, Resolution On Motion To
Quash dated September 17, 1981; Annex "MM", Petition). (p. 100, Rollo)
The issue now submitted for Our consideration is whether the filing of the
nine (9) other informations for estafa against petitioner under the Revised
Penal Code after he had earlier been charged with violation of Batas
Pambansa Blg. 22 for issuing the same bouncing checks will put him in
jeopardy of being convicted twice for the same offenses. In other words, can
448
petitioner be held liable for the nine criminal cases for violation of Batas
Pambansa Blg. 22, and separately also be held liable for the crime of estafa
under Article 315 (2-d) of the Revised Penal Code for the issuance of the
same bouncing checks?
It appears that petitioner, a customer of Pilipinas Shell Petroleum
Corporation, purchased oil products from it. Simultaneous with the delivery
of the products, he issued nine (9) checks in payment thereof. Upon
presentation to the Philippine National Bank at Naval, Leyte, said checks
were dishonored for the reason that his account was already closed.
Thereafter, Pilipinas Shell Petroleum Corporation repeatedly demanded of
petitioner either to deposit funds for his checks or pay for the oil products he
had purchased but he failed and refused to do either.
Petitioner argues that he would be placed in double jeopardy as all the
elements of estafa under Article 315 (2-d) of the Revised Penal Code are also
present in that crime punishable under Batas Pambansa Bilang 22 namely (1)
"the postdating or issuance of a check in payment of an obligation contracted
at the time the check was issued; (2) lack or insufficiency of funds to cover
the check and (3) damage to the payee thereof."
Petitioner's contentions are devoid of merit.
Petitioner is charged with two (2) distinct and separate offenses, first under
Section 1 of Batas Pambansa Bilang 22 approved on April 3, 1979 which
provides that:
Any person who makes or draws and issues any check to apply on account or
for value, knowing at the time of issue that he does not have sufficient funds
in or credit with the drawee bank for the payment of such check in full upon
its presentment, which check is subsequently dishonored by the drawee bank
for insufficiency of funds or credit or would have been dishonored for the
same reason had not the drawer, without any valid reason ordered the bank to
stop payment, shall be punished by imprisonment of not less than thirty days
but not more than one (1) year or by a fine of not less than but not more than
double the amount of the check which fine shall in no case exceed TWO
HUNDRED THOUSAND PESOS or both such fine and imprisonment at the
discretion of the court.
and, second, under Article 315, (2-d) of the Revised Penal Code which states
as follows:
Art. 315.Swindling (estafa). Any person who shall defraud another by any of
the means mentioned herein below . . .
xxx xxx xxx
2. By means of any of the following false pretenses or fraudulent acts,
executed prior to or simultaneously with the commission of the fraud;
xxx xxx xxx
(d) By postdating a check or issuing a check in payment of an obligation
when the offender had no funds in the bank, or his funds deposited therein
were not sufficient to cover the amount of the check.
What petitioner failed to mention in his argument is the fact that deceit and
damage are essential elements in Article 315 (2-d) Revised Penal Code, but
are not required in Batas Pambansa Bilang 22. Under the latter law, mere
issuance of a check that is dishonored gives rise to the presumption of
knowledge on the part of the drawer that he issued the same without sufficient
funds and hence punishable (People v. Veridiano, 132 SCRA 523) which is
not so under the Penal Code. Other differences between the two also include
the following: (1) a drawer of a dishonored check may be convicted under
Batas Pambansa Bilang 22 even if he had issued the same for a pre-existing
obligation, while under Article 315 (2-d) of the Revised Penal Code such
circumstance negates criminal liability; (2) specific and different penalties
are imposed in each of the two offenses; (3) estafa is essentially a crime
against property, while violation of Batas Pambansa Bilang 22 is principally
a crime against public interest as it does injury to the entire banking system;
(4) violations of Article 315 of the Revised Penal Code are mala in se, while
those of Batas Pambansa Bilang 22 are mala prohibita.
These differences are better understood by presenting the pertinent
discussions on the passage of Batas Pambansa Bilang 22 between the author
of the bill, former Solicitor General and Member of the Batasang Pambansa,
the Honorable Estelito P. Mendoza, presented in the memorandum for the
government as follows:
449
MR. MENDOZA. If there is evidence demonstrating that the act
committed does not only violate this proposed Act but also the Revised Penal
Code, there will be further prosecution under the Revised Penal Code. That
is why it is proposed in this Act that there be a single uniform penalty for all
violations in this Act. However the court is given the discretion whether to
impose imprisonment or fine or both or also in whatever severity the court
may consider appropriate under the circumstances.
xxx xxx xxx
MR. VELOSO, F. The other way around, it is not so. So precisely, if
I file a case for estafa against a particular person for issuance of a bouncing
check, then necessarily I can also be prosecuted under this proposed bill. On
the other hand, if a person is prosecuted under the proposed bill, it does not
necessarily follow that he can be prosecuted for estafa.
MR. MENDOZA. This is simply because that in a certain set of
circumstances, the offense under this Act is the only offense committed while
under a different set of circumstances, not only the offense described in this
Act is committed but also estafa. So that, for example, if a check with
sufficient funds is issued in payment of a pre-existing obligation and the
position of the Government should turn out to be correct that there is no
estafa, then the drawer of the check would only be liable under this Act but
not under the Revised Penal Code. But if he issues a check in payment, or
contemporaneously with incurring, of an obligation, then he will be liable not
only for estafa but also for violation for this Act. There is a difference
between the two cases. In that situation where the check was issued in
payment of a pre-existing obligation, the issuance of the check does not cause
damage to the payee and so it is but appropriate that he should not be held for
estafa but only for violating this Act. But if he issued a check to induce
another, to part with a valuable consideration and the check bounces, then he
does inflict an injury to the payee of the check apart from violating this law.
In that case, it should be but fair that he be subject to prosecution not only for
estafa but also for violating this law.
MR. VELOSO, F. Yes, I agree with the Solicitor General on that
point but my worry is with respect to situations where there is prosecution
first to estafa.
MR. MENDOZA. Well, if there is estafa . . .
MR. VELOSO, F. Estafa committed by the issuance of a bouncing
check, in which case it will be mandatory on the part of the prosecuting
official to also file a case for violation of this offense under the proposed bill.
MR. MENDOZA. Yes, that is correct. In such a situation because if the
offender did not only cause injury on account of the issuance of the check but
did issue a bouncing check penalized under this Act, then he will be liable for
prosecution under both laws. I would admit that perhaps in such situation, the
penalty may be somewhat severe. As a matter of fact, in other jurisdictions,
the issuance of bouncing checks is penalized with substantially lower penalty.
However, because of the situation in the Philippines, the situation being now
relatively grave that practically everybody is complaining about bouncing
checks, may be it is necessary at least initially, at this point in time for us to
impose a rather severe penalty and even allow liability not only under this
Act but also for estafa. Then perhaps, after the necessary discipline has been
inculcated in our people and that the incidence of the offense has been
reduced, we may then decide to amend the law and reduce the penalty. But at
this time, shall we say the evil is of such magnitude that only a dramatic and
expeditious effort to prosecute persons who issue bouncing checks may be
necessary to curb quickly this evil. (explanations given by Solicitor General
ESTELITO P. MENDOZA at the Batasan Pambansa during his sponsorship
speech of BP 22 which he authored, pages 1037-1038, Record of the Batasan,
Plenary Session No. 70, Dec. 4, 1978). (Emphasis supplied). (pp. 115-117,
Rollo or pp. 9-11, Memorandum for respondents).
Furthermore, Section 5 of Batas Pambansa Bilang 22 provides that:
Prosecution under this Act shall be without prejudice to any liability for
violation of any provision of the Revised Penal Code.
While the filing of the two sets of Information under the provisions of Batas
Pambansa Bilang 22 and under the provisions of the Revised Penal Code, as
amended, on estafa, may refer to identical acts committed by petitioner, the
prosecution thereof cannot be limited to one offense, because a single
criminal act may give rise to a multiplicity of offenses and where there is
variance or differences between the elements of an offense in one law and
another law as in the case at bar there will be no double jeopardy because
what the rule on double jeopardy prohibits refers to identity of elements in
the two (2) offenses. Otherwise stated prosecution for the same act is not
450
prohibited. What is forbidden is prosecution for the same offense. Hence, the
mere filing of the two (2) sets of information does not itself give rise to double
jeopardy (People v. Miraflores, 115 SCRA 570).
In the instant petition, certiorari is not the proper remedy. We have held in
Acharon v. Purisima, et al. (13 SCRA 309) that "when a motion to quash a
criminal case is denied, remedy is not certiorari but to go to court without
prejudice to reiterating special defenses invoked in the motion, and if after
trial on the merits, an adverse decision is rendered, to appeal therefrom in the
manner authorized by law," invoking the rule laid down in People v.
Magdaluyo (1 SCRA 990). If the petitioner cannot appeal at this state of the
proceeding, it is because there is still a necessity for the trial on the merits
wherein the parties may present proofs in support of their contentions and not
because the remedy of appeal is unavailing.
WHEREFORE, premises considered, the petition for certiorari is hereby
DISMISSED for lack of merit.
SO ORDERED.
G.R. No. 160959 April 3, 2007
ANTONIO DIAZ, Petitioner,
vs.
DAVAO LIGHT AND POWER CO., INC., MANUEL M. ORIG and
ELISEO R. BRAGANZA, JR., Respondents.
DECISION
CALLEJO, SR., J.:
This is a Petition for Review on Certiorari of the Decision1 of the Court of
Appeals (CA) in CA-G.R. CV No. 68709, which affirmed the Decision2 of
the Regional Trial Court (RTC) of Davao City, Branch 11, in Civil Case No.
21,655-92.
Antecedents
Antonio G. Diaz was the president of Diaz and Co., Inc. He was also vice-
president of Diaz Realty Inc. which, in turn, owned the Doña Segunda Hotel,3
formerly known as the Davao Imperial Hotel (Imperial Hotel Building),4
located along C.M. Recto Avenue, Davao City. Davao Light and Power Co.,
Inc. (DLPC), on the other hand, is a public utility duly franchised to provide
light, heat and power to its customers in Davao City and the municipalities of
Panabo, Santo Tomas and Carmen, in Davao del Norte.5 Manuel Orig was
the resident manager/vice-president for Administration of DLPC,6 while
Eliseo R. Braganza was its in-house lawyer.7 DLPC supplied the Doña
Segunda Building (Imperial Hotel Building) with electricity service8 under
Account No. 087-10669 and with Meter No. 36510.9
On July 25, 1983, DLPC sent a Notice of Disconnection10 to Diaz and Co.,
Inc. informing it that, as of June 13, 1983, the hotel’s unpaid electric
consumption bill amounted to ₱190,111.02.11 It also warned that if the
amount was not paid, DLPC would be impelled to discontinue its service.
Since Diaz and Co., Inc. ignored the letter, Meter No. 36510 was
disconnected on July 29, 1983.12
DLPC then filed a complaint for collection before the RTC, Cebu City, which
case was docketed as Civil Case No. CEB-1049.
Meanwhile, in 1984, the National Food Authority (NFA) established its
KADIWA13 store at C.M. Recto Avenue, Davao City.14 It leased a portion
of the ground floor of the Imperial Hotel Building from Diaz and Co., Inc.15
NFA/KADIWA also applied for electricity service with DLPC, and a
contract16 was later executed between the parties. On March 15, 1984, DLPC
connected the area leased by NFA/KADIWA to its electric grid17 under
Account No. 091-12643,18 and installed Meter No. 8473819 to measure
NFA/KADIWA’s monthly electric consumption.
In August 1986, the Kadiwa Center IV closed, and NFA/KADIWA vacated
the Doña Segunda Building.20 In a letter21 dated August 11, 1986,
NFA/KADIWA Provincial Manager, Roberta R. Melendres, informed DLPC
that the light and power connection of NFA/KADIWA would be left behind;
its right to the connection would be transferred to Diaz.22 She also informed
DLPC that the ₱1,020.00 deposit of NFA/KADIWA for the power
connection had been refunded to it by Diaz.23
451

In a letter24 dated September 2, 1986, Diaz informed respondent Manuel
Orig that he had leased the untenanted portions of the Doña Segunda Building
from Diaz and Co., Inc., and requested that a new electrical connection for
the building in his name be installed, separate from the one assigned to him
by NFA.25
On September 15, 1986, DLPC denied the request on the ground that since
Diaz and Co., Inc. is a closed family corporation whose stockholders are the
immediate members of the Diaz family, the lease in favor of Diaz could be
simulated.26 DLPC, however, reminded Diaz that it would be too happy to
grant his request "if he and/or Diaz and Co., Inc. would pay what is due and
owing to it."27
Diaz and Co., Inc. sent a letter28 to DLPC dated September 17, 1986
declaring that it had assumed the electrical bills of NFA/KADIWA under
Account No. 091-12643, and requested that the monthly bills/statements be
sent to it. In its reply, DLPC rejected the request and declared that it was not
aware that Diaz and Co., Inc. had refunded the NFA/KADIWA its ₱1,020.00
deposit.29
On September 26, 1986, Diaz filed a petition for mandamus30 before the
RTC, Davao City. He alleged that as a holder of a certificate of public
convenience, DLPC is mandated by law to provide him with electric service;
the grounds relied upon by respondent Orig in denying his application are
anchored on bias and prejudice, since he (Diaz) is one of the stockholders of
Diaz and Co. Inc., the owner of the Davao Imperial Hotel; and the civil case
filed by DLPC is against Diaz and Co., Inc. and not personally against him.31
The complaint was docketed as Civil Case No. 18,288.
Meanwhile, on September 23, 1986, the portion of the building formerly
leased by NFA/KADIWA was leased to Matias Mendiola.32 Because he
needed more electricity than what could be provided by the existing electrical
wirings, Mendiola opted to change the electrical installation from a one-phase
meter to a three-phase meter connection.33 Mendiola’s application was
approved by DLPC. On December 19, 1986, DLPC and Mendiola executed
a service Contract34 for electricity service.
On January 7, 1987, Diaz filed an application for preliminary injunction in
Sp. Civil Case No. 18,28835 to enjoin DLPC from disconnecting the electric
connections to Meter No. 84738 under Account No. 091-12643. Also, an
Inter-Office Memo36 dated January 7, 1987, signed by Officer-in-Charge,
Rebecca Madrid, was issued to all security guards of the Doña Segunda
Building who were ordered to prevent anyone from disturbing Meter No.
84738.37 Because of this, DLPC failed to substitute its single-phase meter
with a three-phase meter. DLPC’s linemen thus installed the three-phase
meter without removing the single-phase meter.381a\^/phi1.net
On March 12, 1987, the RTC in Sp. Civil Case No. 18,288, denied the motion
for issuance of a writ of preliminary injunction39 filed by Diaz. He moved
for a reconsideration, which was, however, denied in the Order40 dated
August 20, 1987. DLPC then removed its single-phase meter on November
20, 1987, which rendered almost half of the building without power.41 That
same day, Diaz went to the DLPC building and threw stones at it, breaking
four glass windows in the process.42 He then bought his own electric meter,
Meter No. 86673509,43 had it calibrated by the Board of Energy, and
unilaterally replaced Meter No. 84738. The electricity in the building was
then restored.44
On November 24, 1987, Diaz filed a Complaint for Damages with Prayer for
Preliminary Prohibitory and Mandatory Injunction and Restraining Order45
before the RTC, Davao City, docketed as Civil Case No. 18,855-87. In the
said complaint, Diaz claimed that DLPC arbitrarily and illegally removed
Meter No. 84738 in violation of their business franchise and Article 19 of the
New Civil Code, and had threatened to remove Meter No. 86673509.46
DLPC, for its part, filed a counter-application for preliminary mandatory
injunction47 in the same case to compel the removal of Meter No. 86673509
which Diaz had installed without DLPC’s consent and authority.48 The RTC
issued an Order49 dated March 30, 1988 denying Diaz’s application for
prohibitory and mandatory injunction, and granting DLPC’s counter-
application for preliminary mandatory injunction. The RTC ordered Diaz to
immediately remove Meter No. 86673509 and disconnect the electrical
wirings he had unilaterally connected to the upper floor rooms. Diaz filed a
motion for reconsideration but was denied.1a\^/phi1.net On June 13, 1998,
the sheriff, with the aid of DLPC personnel, caused the removal of Meter No.
86673509.50
452
Aggrieved, Diaz assailed the orders via petition for certiorari before the CA.
The petition was docketed as CA-G.R. SP No. 14909. On October 19, 1988,
the CA rendered a Decision51 granting Diaz’s petition, to wit:
Wherefore, in view of the foregoing, the petition is hereby granted and the
orders of the lower court dated March 30, 1988 and June 1, 1988 are set aside.
Private respondents are thus ordered to maintain the status quo ante which
existed before the issuance of the orders complained against, or else to
connect its own electric meter to the premises, on the understanding, of
course, that petitioner pays his electric bills and without prejudice to the
continuance of the collection case against Diaz and Company.52
DLPC elevated the decision before this Court, via petition for review on
certiorari. The petition was docketed as G.R. No. 85445.53
Meanwhile, on December 19, 1998, the parties in Civil Case No. CEB-
104954 executed a Compromise Agreement,55 wherein they stipulated the
following:
1. Plaintiff-appellee hereby reduces its total claims in the complaint to only
₱385,000.00 and further waives any claim in excess of said amount in the
same case, and the defendant-appellant shall pay said amount in full
immediately upon the execution of this agreement. The latter also waives its
counterclaims against the former in the above-entitled case.
2. Upon receipt of the payment of the aforesaid sum, plaintiff-appellee shall
immediately grant and install in favor of defendant-appellant or Antonio G.
Diaz electric service for the Doña Segunda Building, popularly known as
Imperial Hotel Building, or for portions thereof designated by either
including the tenants or lessees occupying the same, upon proper application
therefor and the presentation of the requisite electrical permit.
3. the parties agree to the dismissal of Civil Case No. 18,288 of the Regional
Trial Court of Davao City, pending in Branch XVI thereof, entitled "Diaz vs.
Davao Light & Power Co., Inc. and Manuel Orig." for Mandamus inclusive
of the counter-claim therein, the same having become moot and academic.
WHEREFORE, it is most respectfully prayed that this Honorable Court
approves the foregoing compromise agreement and render judgment based
thereon, and enjoin the parties to comply strictly with the terms thereof.
The RTC, in Civil Case No. CEB-1049, rendered a Decision56 approving the
compromise on January 5, 1989.
In Sp. Civil Case No. 18,288, the parties also filed a Joint Motion to
Dismiss57 based on the Compromise Agreement, and the RTC thereafter
ordered the dismissal of the case.58
On April 17, 1989, this Court in G.R. No. 85445, issued a Resolution,59
denying the petition for review on certiorari questioning the CA decision in
CA-G.R. SP No. 14909 for being moot and academic. The resolution reads:
After deliberating on the allegations made, the issues raised, and the
arguments advanced in the Petition, the Comment and the Reply, and it
appearing that petitioner is now providing electrical service to private
respondent’s entire building, the Court RESOLVED to DENY the petition
for having become moot and academic. The Court makes the admonition,
however, that connections of electrical service and installations of electric
meters should always be upon mutual contract of the parties, and that
payments for electrical consumption should also be made promptly whenever
due. Contracts lay down the law between the parties and obligations arising
therefrom should be complied with.
Meanwhile, on June 30, 1997, the RTC rendered a Decision60 in Civil Case
No. 18,855-87 dismissing the case filed by Diaz.61
Diaz appealed the decision with the CA in CA-G.R. CV No. 63236,62 which
appeal is still pending before the appellate court.
Based on the aforestated facts, on July 11, 1988, DLPC filed a complaint for
theft of electricity against Diaz with the City Prosecutor’s Office, Davao City;
respondent Braganza submitted an Affidavit63 to support the charge. In
defense, Diaz alleged the following: (1) that the complaint was intended to
harass him; (2) he was entitled to electric service by virtue of his subrogation
to the right of NFA/KADIWA; (3) the installation of Meter No. 86673509
was made with the knowledge and consent of DLPC; (4) there is a pending
case between the parties regarding Meter Nos. 84738 and 86673509; and (5)
the filing of the action is premature. The complaint was docketed as I.S. No.
593.
453
On March 21, 1989, Lolito O. Evangelino, 4th Asst. City Prosecutor, City
Prosecutor’s Office of Davao City, issued a Resolution64 recommending the
dismissal of the charge. He opined that the correspondence to DLPC Manager
Orig negated DLPC’s claim of lack of consent and knowledge, and since the
issue is still pending litigation in court, the determination of whether there is
theft of electricity is premature (Sp. Civil Case No. 18288 and Civil Case No.
18,855-87).
DLPC filed a Motion for Reconsideration65 which the City Prosecutor
denied on the ground that DLPC failed to establish the elements of unlawful
taking and intent to gain. DLPC appealed the dismissal to the Secretary of
Justice,66 who, however, dismissed the appeal in a letter67 dated August 2,
1990. The Motion for Reconsideration68 filed by DLPC was likewise denied
in the letter69 dated September 6, 1990.
Undaunted, DLPC filed a criminal complaint70 against Diaz for Violation of
P.D. 401,71 as amended by B.P. Blg. 87672 with the City Prosecutor’s
Office, Davao City.73 The complaint was docketed as I.S. No. 92-4590. In
his counter-affidavit dated September 19, 1992, Diaz alleged that a similar
complaint (I.S. No. 593) had been filed by DLPC against him.74 In a
Resolution75 dated October 23, 1992, Calixto A. Esparagoza, 2nd Asst. City
Prosecutor, dismissed the case. The Public Prosecutor likewise denied the
motion for reconsideration of DLPC on November 26, 1992.
Meanwhile Diaz, Ramos, and Arguellas, as complainants, filed a criminal
complaint with the Office of the Provincial Fiscal of Davao del Norte
charging the officers of DLPC with estafa through falsification of public
documents. They also alleged that the officers of DLPC exacted additional
and illegal profits from its consumers by devising a deceptive Varying
Discount Formula; based on the alleged misrepresentation of said officers,
the Board of Energy (BOE) granted DLPC provisional authority to apply the
formula, thereby resulting in losses of more or less ₱300,000.00 to Diaz,
Ramos, and Arguelles.76 As regards the charge of falsification, the
complainants alleged that DLPC had its properties appraised by the Technical
Management Services, Philippines, Inc. (TAMSPHIL), and included non-
existent properties that did not belong to it; it also recorded the TAMSPHIL
appraisal in its books of account even before it had been approved by the
BOE; and submitted financial statements containing the appraisal to the
Securities and Exchange Commission and the BOE.77
The Investigating Prosecutor found probable cause against the respondents.
An Information was filed before the then Court of First Instance (CFI) of
Tagum, Davao del Norte, docketed as Crim. Case No. 5800. Respondents
appealed the resolution of the public prosecutor finding probable cause
against them. The appeal was granted. On motion of the Prosecutor, the RTC
dismissed the case in an Order dated July 13, 1983.78
On August 9, 1983, the officers of DLPC, Eduardo J. Aboitiz, Luis Aboitiz,
Jr., Roberto E. Aboitiz, Jon R. Aboitiz, and Edson H. Canova, as plaintiffs,
filed a Complaint against Diaz, Isagani T. Fuentes (Provincial Fiscal of
Davao del Norte), Petronilo D. Ramos (Municipal Mayor of Carmen, Davao
del Norte), Gabriel Arguelles (Municipal Attorney of Panabo, Davao del
Norte) before the RTC, Cebu City, for damages and attorney’s fees against
the defendants for malicious prosecution.79
The case was docketed as CEB Case No. 1055. After trial on the merits, the
RTC rendered a Decision80 on April 30, 1992, dismissing the complaint. The
fallo of the decision reads:
WHEREFORE, premises considered, plaintiffs’ complaint and defendants’
counterclaim are hereby DISMISSED for lack of cause of action with costs
de oficio.
SO ORDERED.81
Both parties appealed the decision before the CA, docketed as CA-G.R. CV
No. 41399.1ªvvphi1.nét
Diaz, et al. relied on the following grounds:
I
TRIAL COURT ERRED IN IGNORING PLAINTIFF-APPELLANT’S
(SIC) EVIDENCE OF CONSPIRACY AMONG ALL DEFENDANT-
APPELLANTS (SIC) AND IN MAKING NO FINDING THAT THERE
WAS A CONSPIRACY TO PROSECUTE PLAINTIFF-APPELLANTS
(SIC) CRIMINALLY FOR USE AS LEVERAGE IN ORDER TO OBTAIN
CONCESSIONS FROM DAVAO LIGHT & POWER CO.
II
454

TRIAL COURT ERRED IN HOLDING THAT PLAINTIFF-APPELLANTS
(SIC) HAVE NO CAUSE OF ACTION BY COMMITTING THE
FOLLOWING ERRORS:
(a) IN FINDING THAT THERE WAS NO PROSECUTION AND NO
ACQUITTAL;
(b) IN FINDING THAT THERE WAS PROBABLE CAUSE FOR
DEFENDANT-APPELLANT’S (SIC) CHARGE OF ESTAFA THROUGH
FALSIFICATION;
(c) BY IGNORING THE FACT THAT THERE WAS NO EVIDENCE
LINKING PLAINTIFF-APPELLANTS (SIC) TO THE CRIME
CHARGED;
(d) BY IGNORING THE CIRCUMSTANCES THAT MANY
ALLEGATIONS IN THE JOINT AFFIDAVIT OF DEFENDANT-
APPELLANTS (SIC) ARE INADMISSIBLE;
(e) BY IGNORING THE FACT THAT DAVAO LIGHT’S USE OF THE
VARYING DISCOUNT FORMULA WAS ADMITTEDLY
PROVISIONALLY AUTHORIZED BY THE BOE WHICH AUTHORITY
WAS IN FORCE DURING THE FILING AND PENDENCY OF THE
CHARGE;
(f) BY IGNORING THE FACT THAT THE VARYING DISCOUNT
FORMULA WAS A FORMULA TO DETERMINE THE AMOUNT OF
DISCOUNT DEDUCTIBLE FROM THE RATES EARLIER FIXED BY
THE BOE RESULTING FROM THE COST SAVINGS REALIZABLE
FROM THE CHEAPER COST OF ELECTRIC POWER SOLD BY NPC
TO DAVAO LIGHT, AND ITS NEGATIVE ASPECT WAS MERELY AN
INCORPORATION INTO SAID FORMULA OF THE FUEL CLAUSE
ADJUSTMENT ALREADY AUTHORIZED IN THE DECISION OF SAID
BOARD IN CASE NO. 73-146;
(g) BY BEING OBLIVIOUS OF THE CIRCUMSTANCE THAT THERE
WAS NO FRAUD OR DECEIT IN SECURING SAID PROVISIONAL
AUTHORITY, AND THE BOARD MADE NO SUCH FINDING;
(h) BY IGNORING THE UNREBUTTED EVIDENCE THAT
APPELLANT FUENTES DISOBEYED THE DIRECTIVE OF HIS
SUPERIOR, THE CHIEF STATE PROSECUTOR TO HOLD IN
ABEYANCE FURTHER PROCEEDINGS IN I.S. NO. 82-115, AND THAT
HE FILED AN INFORMATION CHARGING PLAINTIFF-APPELLANTS
(SIC) WITH AN OFFENSE DIFFERENT FROM THAT SUBJECT OF HIS
PRELIMINARY INVESTIGATION;
(i) IN FINDING THAT DEFENDANT-APPELLANTS (SIC) DID NOT
ACT WITH MALICE AND HAD ACTED IN GOOD FAITH IN FILING
SAID CHARGE.
III
TRIAL COURT ERRED IN NOT AWARDING DAMAGES TO
PLAINTIFF-APPELLANTS (SIC).82
For their part, DLPC, et al. alleged the following:
I
THAT THE TRIAL COURT ERRED IN HOLDING THAT DEFENDANTS
APPELLANTS’ COUNTERCLAIMS HAVE NO CAUSE OF ACTION.
II
THAT THE TRIAL COURT ERRED IN NOT AWARDING DAMAGES
AND ATTORNEY’S FEES.83
On October 30, 2001, the CA rendered a Decision84 affirming the decision
of the RTC.
Diaz, et al. appealed the decision before this Court, docketed as G.R. No.
154378. On November 13, 2002, this Court resolved to dismiss the petition
for lack of merit.85 On April 15, 2003, as per Entry of Judgment,86 the
resolution of this Court became final and executory.
On June 10, 1992, DLPC instituted a civil action for Damages,87 before the
RTC, Cebu City, against Diaz for defamatory and libelous remarks and for
abuse of rights. The plaintiff alleged that Diaz, motivated by malice and ill-
455
will, had taken it upon himself to find fault in DLPC’s acts and oppose all its
application with the BOE, using the media to assault its good name by
circulating or publishing libelous and false statements in the newspapers. The
case was docketed as Civil Case No. CEB-11843.
DLPC further alleged that Diaz published and disseminated a handbill
claiming that there was something irregular and anomalous regarding the
Energy Regulation Board’s approval of the appraisal of the properties and
equipment of DLPC, because of which the customers of DLPC could expect
a ₱5.00 per kilowatt charge in the future. Diaz allegedly gave identical
interviews with the Mindanao Daily Mirror and the Ang Peryodiko Dabaw
reiterating what he said in the handbill.88 In addition, Diaz, in an interview
with the People’s Daily Forum, claimed that the National Power Corporation
sold two (2) generating sets to DLPC for only ₱1.00 each.89
Consequently, DLPC suffered besmirched reputation and public humiliation,
and damage to its business standing. The complaint contained the following
prayer:
1) Immediately issue a temporary restraining order ex-parte precluding
defendant from committing further acts of tort or libel against plaintiff, and
after the hearing of plaintiff’s application for preliminary injunction, issue
such writ after posting of the required injunction bond;
2) After trial, render judgment in favor of plaintiff and against defendant
Antonio Diaz making the injunction permanent, and ordering the latter to pay
the former –
a) The sum of ₱10,000,000.00 as moral damages anddamages to its business
standing;
b) The sum of ₱300,000.00 as exemplary damages;
c) The sum of ₱500,000.00 as attorney’s fees and expenses of litigation;
d) The cost of suit.90
After trial, the RTC in Civil Case No. CEB-11843 rendered a Decision91 in
favor of DLPC and against Diaz, awarding more than ₱1,500,000.00 in
damages to DLPC and dismissing the counterclaim of Diaz. The decretal
portion reads:
WHEREFORE, premises above set-forth, the Court hereby renders judgment
in favor of plaintiff Davao Light & Power Co., Inc. and against defendant
Antonio Diaz ordering said defendant:
1. To pay plaintiff the amount of ₱1,500,000.00 by way of moral damages
for besmirched reputation, loss of business standing and goodwill;
2. To pay plaintiff the amount of ₱300,000.00 in exemplary damages by way
of example or correction for the public good; and
3. To pay plaintiff the amount of ₱500,000.00 in attorney’s fees and litigation
expenses and to pay the costs.
Defendant takes nothing from his counterclaim.
SO ORDERED.92
Both parties appealed the decision to the CA in CA-G.R. CV No. 65082,
which appeal is still pending.
On October 30, 1992, Diaz, as plaintiff, filed a complaint for Damages,
Injunction with Writ of Preliminary Injunction and Temporary Restraining
Order, Plus Attorney’s Fee93 against DLPC before the RTC, Davao City; the
case was docketed as Civil Case No. 21,655-92. Diaz alleged that DLPC’s
filing of criminal cases, I. S. No. 593 for theft of electricity and I.S. No. 92-
4590 for violation of P.D. 401, as amended by B.P. Blg. 876), were intended
to harass and humiliate him before the public and government authorities and
ruin his image;94 he was seriously prejudiced by the filing of an ₱11.6
Million damage suit in Civil Case No. CEB-1055 and a ₱10.8 Million damage
suit in Civil Case No. CEB-11843;95 defendants, by their common and joint
acts, were motivated by evident bad faith and intentionally caused injustice
to his person in violation of Article 19 of the New Civil Code.96 Diaz thus
prayed:
WHEREFORE, and in view of the foregoing, it is most respectfully prayed
of the Honorable Court:
456
a) Before notice and hearing to issue a temporary restraining order enjoining
defendants from committing any unlawful, illegal, tortiuous (sic) and
inequitable act which may affect the individual rights of plaintiff, and after
hearing to issue writ of preliminary injunction for the same purpose upon
posting of the bond;
b) After trial on the merits, to make the writ of injunction as permanent;
c) To order defendants to pay plaintiff, jointly and severally, moral damages
in the amount of ₱10,000,000.00, attorney’s fee in the amount of
₱500,000.00, litigation expenses in the amount of ₱100,000.00 and
exemplary damage in the amount of ₱100,000.00; and,
d) To grant to plaintiff such other relief proper and equitable under the
premises.97
On November 4, 1992, the RTC issued a TRO98 in favor of Diaz, directing
DLPC or any person acting for and in its behalf, to desist and refrain from
committing any unlawful, tortuous and inequitable conduct which may affect
the former for a period of twenty (20) days.
During the pre-trial, the parties limited the issue to "whether or not the
plaintiff is entitled to damages by virtue of the filing of the criminal cases
against him for theft of electricity and violation of P.D. 401, both of which
were already dismissed." Due to the pendency of various actions before
several courts, the trial court opted to segregate the issues. It focused only on
the alleged malicious prosecution with regard to the filing of the criminal
action for theft, I. S. No. 593, and for Violation of P.D. 401, as amended by
B.P. Blg. 876, I.S. No. 92-4590. The RTC reasoned in this wise:
The records show that plaintiff’s first cause of action, which is damages for
defendant’s refusal to grant him electric service, has become moot and
academic by virtue of the compromise agreement executed by the plaintiff
and the defendant in the mandamus case docketed as Civil Case No. 18288
of this Court. The parties filed a Joint Motion to Dismiss based on the
Compromise Agreement which was granted by this Court and which led to
the eventual dismissal of the case with prejudice.
In summary, plaintiff asks for damages for defendant’s alleged malicious
prosecution of a criminal case of theft of electricity against him, for plaintiff’s
filing of a charge of violation of P.D. 401 as amended after dismissal of the
theft case, the filing of a damage suit against him before the RTC of Cebu
City which was dismissed and the filing of another damage suit before the
same Cebu RTC which is still pending. Damages are also being sought for
defendant’s removal of Electric Meter No. 847328 (sic). But this is a subject
matter of a case pending before Branch 13 of this Court and therefore said
court retains jurisdiction over the said cause of action. x x x99
On May 22, 2000, the RTC rendered a Decision100 dismissing the complaint.
The fallo reads:
In view of all the foregoing, finding no merit in plaintiff’s complaint,
judgment is hereby rendered dismissing said complaint with costs de oficio.
SO ORDERED.101
The RTC held that while the City Prosecutor, and later the Secretary of
Justice, concluded that there was no probable cause for the crime of theft, this
did not change the fact that plaintiff made an illegal connection for
electricity.102 A person’s right to litigate should not be penalized by holding
him liable for damages.
Diaz appealed the decision to the CA, alleging that:
I ― THE TRIAL COURT ERRED IN HOLDING THAT “WHEN THE
DEFENDANTS FILED THE CASES OF THEFT, THEY DID SO IN
HONEST BELIEF THAT PLAINTIFF IS CRIMINALLY LIABLE”.
II ― THE TRIAL COURT ERRED IN DISMISSING THE CASE AT BAR
AND WITHOUT GRANTING THE AWARD OF DAMAGES.103
On October 1, 2003, the CA affirmed the decision of the RTC.104 It
concluded that the evidence on hand showed good faith on the part of DLPC
in filing the subject complaints. It pointed out that Diaz had been using the
electrical services of DLPC without its consent. As to the effect of the
compromise agreement, the CA ruled that it did not bar the filing of the
criminal action. Thus, under the principle of damnum absque injuria, the
legitimate exercise of a person’s right, even if it causes loss to another, does
not automatically result in an actionable injury.105
457
Diaz, now petitioner, comes before this Court in this petition for review on
certiorari, raising the following errors:
a) "Proof of moral suffering must be introduced, otherwise the award of moral
damage is not proper. In this case, the evidence presented by the appellant is
insufficient to overcome the presumption of good faith." (Decision, p. 10)
b) "In view of the foregoing, it is clear that the subject complaints were filed
so as to protect appellee DLPC’s interest. In this regard, it must be borne in
mind that no person should be penalized for the exercise of the right to
litigate." (Decision, p. 12)106
The issues raised in the present action can be summarized as follows: (1)
whether or not the compromise agreement entered into between DLPC and
Diaz barred the former from instituting further actions involving electric
Meter No. 84736 or 86673509; (2) whether or not DLPC acted in bad faith in
instituting the criminal cases against Diaz; and (3) whether or not Diaz is
entitled to damages.
The petition is without merit.
Petitioner insists that the compromise agreement as well as the decision of
the CA in CA-G.R. SP No. 14909 already settled the controversies between
them; yet, DLPC instituted the theft case against Diaz, and worse, instituted
another action for violation of P.D. 401, as amended by B.P. Blg. 876. Thus,
the only conclusion that can be inferred from the acts of DLPC is that they
were designed to harass, embarrass, prejudice, and ruin him. He further avers
that the compromise agreement in Civil Case No. CEB-1049 completely
erased litigious matters that could necessarily arise out of either Electric
Meter No. 84736 or 86673509.107 Moreover, Diaz asserts that the evidence
he presented is sufficient to prove the damages he suffered by reason of the
malicious institution of the criminal cases.
We do not agree.
Article 2028 of the Civil Code defines a compromise as a contract whereby
the parties, by making reciprocal concessions, avoid litigation or put an end
to one already commenced. The purpose of compromise is to settle the claims
of the parties and bar all future disputes and controversies. However, criminal
liability is not affected by compromise for it is a public offense which must
be prosecuted and punished by the Government on its own motion, though
complete reparation should have been made of the damages suffered by the
offended party. A criminal case is committed against the People, and the
offended party may not waive or extinguish the criminal liability that the law
imposes for the commission of the offense.108 Moreover, a compromise is
not one of the grounds prescribed by the Revised Penal Code for the
extinction of criminal liability.109
As can be inferred from the compromise agreement, Diaz and DLPC merely
agreed to (1) reduce the latter’s total claims to only ₱385,000.00; (2) for
DLPC to waive its counterclaims against Diaz; and (3) upon receipt of the
amount, for DLPC to immediately install the necessary electric service to the
building. The parties likewise agreed to the dismissal of Sp. Civil Case No.
18,288 for being moot and academic. Nowhere in said agreement did the
parties agree that DLPC was barred from instituting any further action
involving electric Meter No. 84736 or 86673509.
We find that petitioner is not entitled to damages under Articles 19,110
20[111 and 21,112 and Articles 2217113 and 2219(8)114 of the New Civil
Code.
The elements of abuse of rights are the following: (a) the existence of a legal
right or duty; (b) which is exercised in bad faith; and (c) for the sole intent of
prejudicing or injuring another.115 Thus, malice or bad faith is at the core of
the above provisions.116 Good faith refers to the state of the mind which is
manifested by the acts of the individual concerned. It consists of the intention
to abstain from taking an unconscionable and unscrupulous advantage of
another.117 Good faith is presumed and he who alleges bad faith has the duty
to prove the same.118 Bad faith, on the other hand, does not simply connote
bad judgment to simple negligence, dishonest purpose or some moral obloquy
and conscious doing of a wrong, a breach of known duty due to some motives
or interest or ill-will that partakes of the nature of fraud. Malice connotes ill-
will or spite and speaks not in response to duty. It implies an intention to do
ulterior and unjustifiable harm. Malice is bad faith or bad motive. 119
The evidence presented by respondents negates malice or bad faith. Petitioner
himself alleged in his complaint that he unilaterally installed Meter No.
86673509 to replace Meter No. 84738 after it was removed by DLPC. No less
than this Court, in G.R. No. 85445, admonished petitioner and reminded him
that connections of electrical service and installations of electric meters
458
should always be upon mutual contract of the parties, and that payments for
electrical consumption should also be made promptly whenever due.120
Based on these established facts, petitioner has not shown that the acts of
respondent were done with the sole intent of prejudicing and injuring him.
Petitioner may have suffered damages as a result of the filing of the
complaints. However, there is a material distinction between damages and
injury. Injury is the illegal invasion of a legal right; damage is the loss, hurt
or harm which results from the injury; and damages are the recompense or
compensation awarded for the damage suffered. Thus, there can be damage
without injury in those instances in which the loss or harm was not the result
of a violation of a legal duty. In such cases, the consequences must be borne
by the injured person alone; the law affords no remedy for damages resulting
from an act which does not amount to a legal injury or wrong. These
situations are often called damnum absque injuria.121 Whatever damages
Diaz may have suffered would have to be borne by him alone since it was his
acts which led to the filing of the complaints against him.
On the other hand, malicious prosecution has been defined as an action for
damages brought by or against whom a criminal prosecution, civil suit or
other legal proceeding has been instituted maliciously and without probable
cause, after the termination of such prosecution, suit, or other proceeding in
favor of the defendant therein.122 It is an established rule that in order for
malicious prosecution to prosper, the following requisites must be proven by
petitioner: (1) the fact of prosecution and the further fact that the defendant
(respondent) was himself the prosecutor, and that the action finally
terminated with an acquittal; (2) that in bringing the action, the prosecutor
acted without probable cause; and (3) that the prosecutor was actuated or
impelled by legal malice, that is, by improper or sinister motive.123 The
foregoing are necessary to preserve a person’s right to litigate which may be
emasculated by the undue filing of malicious prosecution cases.124 From the
foregoing requirements, it can be inferred that malice and want of probable
cause must both be clearly established to justify an award of damages based
on malicious prosecution.125
The Court notes that respondents initiated two separate criminal actions, one
for theft of electricity, Inv. Sheet No. 593 July/1988, and the other, for
Violation of P.D. 401, as amended by B.P. Blg. 876, I.S. No. 92-4590. It must
be stressed that theft of electricity is a felony defined and penalized under the
Revised Penal Code, while Violation of P.D. 401, as amended by B.P. Blg.
876, is an offense punished by a special law. What generally makes the
former a felony is criminal intent (dolo) or negligence (culpa); what makes
the latter a crime is the special law enacting it.126 In addition, the elements
of the two (2) offenses are different from one another. In theft, the elements
are: (1) intent to gain; (2) unlawful taking; (3) personal property belonging to
another; (4) and absence of violence or intimidation against persons or force
upon things.127 On the other hand, the crime of Violation of P.D. 401, as
amended by B.P. Blg. 876, is mala prohibita. The criminal act is not
inherently immoral but becomes punishable only because the law says it is
forbidden. With these crimes, the sole issue is whether the law has been
violated. Criminal intent is not necessary.128
While the institution of separate criminal actions under the provisions of P.D.
401, as amended by B.P. Blg. 876, and under the provisions of the Revised
Penal Code on theft may refer to identical acts committed by petitioner, the
prosecution thereof cannot be limited to one offense because a single criminal
act may give rise to a multiplicity of offenses; and where there is variance or
difference between the elements of an offense in one law and another law, as
in the case at bar, there will be no double jeopardy because what the rule on
double jeopardy prohibits refers to identity of elements in the two (2)
offenses. Otherwise stated, prosecution for the same act is not prohibited;
what is forbidden is prosecution for the same offense.129 Hence, no fault
could be attributed to respondent DLPC when it instituted the two separate
actions.
As earlier stated, a claim for damages based on malicious prosecution will
prosper only if the three elements aforecited are shown to exist. We find that
none of the requisites are attendant here.
First. Although respondent DLPC initiated before the prosecutor’s office Inv.
Sheet No. 593 July/1988 for theft of electricity, and I.S. No. 92-4590 for
Violation of P.D. 401, as amended by B.P. Blg. 876, no information was ever
filed in court. The cases were eventually dropped or dismissed before they
could be filed in court. Ultimately, both actions could not end in an acquittal.
Second. It cannot be concluded that respondent DLPC acted without probable
cause when it instituted the actions. The events which led to the filing of the
complaints are undisputed, and respondent DLPC cannot be faulted for filing
them. In the early case of Buchanan v. Esteban,130 this Court had already
stressed that "one cannot be held liable in damages for maliciously instituting
459
a prosecution where he acted with probable cause." As Justice Moreland malicious prosecution should he or she be unsuccessful, for the law could not
explained in that case: have meant to impose a penalty on the right to litigate.135

Probable cause is the existence of such facts and circumstances as would IN LIGHT OF THE FOREGOING, the petition is DENIED. The Decision of
excite the belief, in a reasonable mind, acting on the facts within the the Court of Appeals in CA-G.R. CV No. 68709 is AFFIRMED.
knowledge of the prosecutor, that the person charged was guilty of the crime
for which he was prosecuted. The general rule is well settled that one cannot
be held liable in damages for maliciously instituting a prosecution where he
acted with probable cause. In other words, a suit will lie only in cases where
a legal prosecution has been carried on without probable cause. And the
reason for the rule as stated by Blackstone, is that it would be a very great
discouragement to public justice if prosecutors, who had a tolerable ground
of suspicion, were liable to be sued at law when their indictments miscarried.

Thus, the element of malice and the absence of probable cause must be
proved.131 There must be proof that the prosecution was prompted by a
sinister design to vex and humiliate a person, and that it was initiated
deliberately knowing that the charge was false and baseless to entitle the
victims to damages.132 The two elements must simultaneously exist;
otherwise, the presence of probable cause signifies, as a legal consequence,
the absence of malice.133 In the instant case, it is evident that respondent
DLPC was not motivated by malicious intent or by a sinister design to unduly
harass petitioner, but only by a well-founded anxiety to protect its rights.
Respondent DLPC cannot therefore be faulted in availing of the remedies
provided for by law.

In a free society, controversies are heard and settled under the rule of law in
the forum of the courts of justice. It is one of the virtues of our system of
government that a person who feels aggrieved does not have to take the law
into his or her hands or resort to the use of force for the vindication of injury.
The courts are there to hear and act on the complaint. The right to litigate is
an escape valve to relieve the pressures of personal disagreements that might
otherwise explode in physical confrontation. It is necessary not only for
upholding one’s claims when they are unjustly denied but also for the
maintenance of peace, if not goodwill, among incipient antagonists. Without
the right to litigate, conflicting claims cannot be examined and resolved in
accordance with one of the primary purposes of government, which is to
provide for a just and orderly society.134 Hence, the mere act of submitting
a case to the authorities for prosecution does not render a person liable for

460
 Imprudence Resulting in Homicide and Damage to Property. This, despite
the accused’s previous conviction for Reckless Imprudence Resulting in
Slight Physical Injuries arising from the same incident grounding the second
prosecution.

The Facts

Following a vehicular collision in August 2004, petitioner Jason Ivler

(petitioner) was charged before the Metropolitan Trial Court of Pasig City,
Branch 71 (MeTC), with two separate offenses: (1) Reckless Imprudence
Resulting in Slight Physical Injuries (Criminal Case No. 82367) for injuries
sustained by respondent Evangeline L. Ponce (respondent Ponce); and (2)
Reckless Imprudence Resulting in Homicide and Damage to Property
(Criminal Case No. 82366) for the death of respondent Ponce’s husband
Nestor C. Ponce and damage to the spouses Ponce’s vehicle. Petitioner posted
bail for his temporary release in both cases.

On 7 September 2004, petitioner pleaded guilty to the charge in Criminal

Case No. 82367 and was meted out the penalty of public censure. Invoking
this conviction, petitioner moved to quash the Information in Criminal Case
No. 82366 for placing him in jeopardy of second punishment for the same
offense of reckless imprudence.

G.R. No. 172716 November 17, 2010 The MeTC refused quashal, finding no identity of offenses in the two cases.3

JASON IVLER y AGUILAR, Petitioner, After unsuccessfully seeking reconsideration, petitioner elevated the matter
vs. to the Regional Trial Court of Pasig City, Branch 157 (RTC), in a petition for
HON. MARIA ROWENA MODESTO-SAN PEDRO, Judge of the certiorari (S.C.A. No. 2803). Meanwhile, petitioner sought from the MeTC
Metropolitan Trial Court, Branch 71, Pasig City, and EVANGELINE the suspension of proceedings in Criminal Case No. 82366, including the
PONCE, Respondents. arraignment on 17 May 2005, invoking S.C.A. No. 2803 as a prejudicial
question. Without acting on petitioner’s motion, the MeTC proceeded with
DECISION the arraignment and, because of petitioner’s absence, cancelled his bail and
ordered his arrest.4 Seven days later, the MeTC issued a resolution denying
CARPIO, J.: petitioner’s motion to suspend proceedings and postponing his arraignment
until after his arrest.5 Petitioner sought reconsideration but as of the filing of
The Case this petition, the motion remained unresolved.

The petition seeks the review1 of the Orders2 of the Regional Trial Court of Relying on the arrest order against petitioner, respondent Ponce sought in the
Pasig City affirming sub-silencio a lower court’s ruling finding inapplicable RTC the dismissal of S.C.A. No. 2803 for petitioner’s loss of standing to
the Double Jeopardy Clause to bar a second prosecution for Reckless maintain the suit. Petitioner contested the motion.

461

The Ruling of the Trial Court
In an Order dated 2 February 2006, the RTC dismissed S.C.A. No. 2803,
narrowly grounding its ruling on petitioner’s forfeiture of standing to
maintain S.C.A. No. 2803 arising from the MeTC’s order to arrest petitioner
for his non-appearance at the arraignment in Criminal Case No. 82366. Thus,
without reaching the merits of S.C.A. No. 2803, the RTC effectively affirmed
the MeTC. Petitioner sought reconsideration but this proved unavailing.6
Hence, this petition.
Petitioner denies absconding. He explains that his petition in S.C.A. No. 2803
constrained him to forego participation in the proceedings in Criminal Case
No. 82366. Petitioner distinguishes his case from the line of jurisprudence
sanctioning dismissal of appeals for absconding appellants because his appeal
before the RTC was a special civil action seeking a pre-trial relief, not a post-
trial appeal of a judgment of conviction.7
Petitioner laments the RTC’s failure to reach the merits of his petition in
S.C.A. 2803. Invoking jurisprudence, petitioner argues that his constitutional
right not to be placed twice in jeopardy of punishment for the same offense
bars his prosecution in Criminal Case No. 82366, having been previously
convicted in Criminal Case No. 82367 for the same offense of reckless
imprudence charged in Criminal Case No. 82366. Petitioner submits that the
multiple consequences of such crime are material only to determine his
penalty.
Respondent Ponce finds no reason for the Court to disturb the RTC’s decision
forfeiting petitioner’s standing to maintain his petition in S.C.A. 2803. On the
merits, respondent Ponce calls the Court’s attention to jurisprudence holding
that light offenses (e.g. slight physical injuries) cannot be complexed under
Article 48 of the Revised Penal Code with grave or less grave felonies (e.g.
homicide). Hence, the prosecution was obliged to separate the charge in
Criminal Case No. 82366 for the slight physical injuries from Criminal Case
No. 82367 for the homicide and damage to property.
In the Resolution of 6 June 2007, we granted the Office of the Solicitor
General’s motion not to file a comment to the petition as the public
respondent judge is merely a nominal party and private respondent is
represented by counsel.
The Issues
Two questions are presented for resolution: (1) whether petitioner forfeited
his standing to seek relief in S.C.A. 2803 when the MeTC ordered his arrest
following his non-appearance at the arraignment in Criminal Case No. 82366;
and (2) if in the negative, whether petitioner’s constitutional right under the
Double Jeopardy Clause bars further proceedings in Criminal Case No.
82366.
The Ruling of the Court
We hold that (1) petitioner’s non-appearance at the arraignment in Criminal
Case No. 82366 did not divest him of personality to maintain the petition in
S.C.A. 2803; and (2) the protection afforded by the Constitution shielding
petitioner from prosecutions placing him in jeopardy of second punishment
for the same offense bars further proceedings in Criminal Case No. 82366.
Petitioner’s Non-appearance at the Arraignment in
Criminal Case No. 82366 did not Divest him of Standing
to Maintain the Petition in S.C.A. 2803
Dismissals of appeals grounded on the appellant’s escape from custody or
violation of the terms of his bail bond are governed by the second paragraph
of Section 8, Rule 124,8 in relation to Section 1, Rule 125, of the Revised
Rules on Criminal Procedure authorizing this Court or the Court of Appeals
to "also, upon motion of the appellee or motu proprio, dismiss the appeal if
the appellant escapes from prison or confinement, jumps bail or flees to a
foreign country during the pendency of the appeal." The "appeal"
contemplated in Section 8 of Rule 124 is a suit to review judgments of
convictions.
The RTC’s dismissal of petitioner’s special civil action for certiorari to
review a pre-arraignment ancillary question on the applicability of the Due
Process Clause to bar proceedings in Criminal Case No. 82366 finds no basis
under procedural rules and jurisprudence. The RTC’s reliance on People v.
Esparas9 undercuts the cogency of its ruling because Esparas stands for a
proposition contrary to the RTC’s ruling. There, the Court granted review to
462
an appeal by an accused who was sentenced to death for importing prohibited
drugs even though she jumped bail pending trial and was thus tried and
convicted in absentia. The Court in Esparas treated the mandatory review of
death sentences under Republic Act No. 7659 as an exception to Section 8 of
Rule 124.10
The mischief in the RTC’s treatment of petitioner’s non-appearance at his
arraignment in Criminal Case No. 82366 as proof of his loss of standing
becomes more evident when one considers the Rules of Court’s treatment of
a defendant who absents himself from post-arraignment hearings. Under
Section 21, Rule 11411 of the Revised Rules of Criminal Procedure, the
defendant’s absence merely renders his bondsman potentially liable on its
bond (subject to cancellation should the bondsman fail to produce the accused
within 30 days); the defendant retains his standing and, should he fail to
surrender, will be tried in absentia and could be convicted or acquitted.
Indeed, the 30-day period granted to the bondsman to produce the accused
underscores the fact that mere non-appearance does not ipso facto convert the
accused’s status to that of a fugitive without standing.
Further, the RTC’s observation that petitioner provided "no explanation why
he failed to attend the scheduled proceeding"12 at the MeTC is belied by the
records. Days before the arraignment, petitioner sought the suspension of the
MeTC’s proceedings in Criminal Case No. 82366 in light of his petition with
the RTC in S.C.A. No. 2803. Following the MeTC’s refusal to defer
arraignment (the order for which was released days after the MeTC ordered
petitioner’s arrest), petitioner sought reconsideration. His motion remained
unresolved as of the filing of this petition.
Petitioner’s Conviction in Criminal Case No. 82367
Bars his Prosecution in Criminal Case No. 82366
The accused’s negative constitutional right not to be "twice put in jeopardy
of punishment for the same offense"13 protects him from, among others,
post-conviction prosecution for the same offense, with the prior verdict
rendered by a court of competent jurisdiction upon a valid information.14 It
is not disputed that petitioner’s conviction in Criminal Case No. 82367 was
rendered by a court of competent jurisdiction upon a valid charge. Thus, the
case turns on the question whether Criminal Case No. 82366 and Criminal
Case No. 82367 involve the "same offense." Petitioner adopts the affirmative
view, submitting that the two cases concern the same offense of reckless
imprudence. The MeTC ruled otherwise, finding that Reckless Imprudence
Resulting in Slight Physical Injuries is an entirely separate offense from
Reckless Imprudence Resulting in Homicide and Damage to Property "as the
[latter] requires proof of an additional fact which the other does not."15
We find for petitioner.
Reckless Imprudence is a Single Crime,
its Consequences on Persons and
Property are Material Only to Determine
the Penalty
The two charges against petitioner, arising from the same facts, were
prosecuted under the same provision of the Revised Penal Code, as amended,
namely, Article 365 defining and penalizing quasi-offenses. The text of the
provision reads:
Imprudence and negligence. — Any person who, by reckless imprudence,
shall commit any act which, had it been intentional, would constitute a grave
felony, shall suffer the penalty of arresto mayor in its maximum period to
prision correccional in its medium period; if it would have constituted a less
grave felony, the penalty of arresto mayor in its minimum and medium
periods shall be imposed; if it would have constituted a light felony, the
penalty of arresto menor in its maximum period shall be imposed.
Any person who, by simple imprudence or negligence, shall commit an act
which would otherwise constitute a grave felony, shall suffer the penalty of
arresto mayor in its medium and maximum periods; if it would have
constituted a less serious felony, the penalty of arresto mayor in its minimum
period shall be imposed.
When the execution of the act covered by this article shall have only resulted
in damage to the property of another, the offender shall be punished by a fine
ranging from an amount equal to the value of said damages to three times
such value, but which shall in no case be less than twenty-five pesos.
A fine not exceeding two hundred pesos and censure shall be imposed upon
any person who, by simple imprudence or negligence, shall cause some
wrong which, if done maliciously, would have constituted a light felony.
463
In the imposition of these penalties, the court shall exercise their sound
discretion, without regard to the rules prescribed in Article sixty-four.
The provisions contained in this article shall not be applicable:
1. When the penalty provided for the offense is equal to or lower than those
provided in the first two paragraphs of this article, in which case the court
shall impose the penalty next lower in degree than that which should be
imposed in the period which they may deem proper to apply.
2. When, by imprudence or negligence and with violation of the Automobile
Law, to death of a person shall be caused, in which case the defendant shall
be punished by prision correccional in its medium and maximum periods.
Reckless imprudence consists in voluntary, but without malice, doing or
failing to do an act from which material damage results by reason of
inexcusable lack of precaution on the part of the person performing or failing
to perform such act, taking into consideration his employment or occupation,
degree of intelligence, physical condition and other circumstances regarding
persons, time and place.
Simple imprudence consists in the lack of precaution displayed in those cases
in which the damage impending to be caused is not immediate nor the danger
clearly manifest.
The penalty next higher in degree to those provided for in this article shall be
imposed upon the offender who fails to lend on the spot to the injured parties
such help as may be in this hand to give.
Structurally, these nine paragraphs are collapsible into four sub-groupings
relating to (1) the penalties attached to the quasi-offenses of "imprudence"
and "negligence" (paragraphs 1-2); (2) a modified penalty scheme for either
or both quasi-offenses (paragraphs 3-4, 6 and 9); (3) a generic rule for trial
courts in imposing penalties (paragraph 5); and (4) the definition of "reckless
imprudence" and "simple imprudence" (paragraphs 7-8). Conceptually,
quasi-offenses penalize "the mental attitude or condition behind the act, the
dangerous recklessness, lack of care or foresight, the imprudencia
punible,"16 unlike willful offenses which punish the intentional criminal act.
These structural and conceptual features of quasi-offenses set them apart
from the mass of intentional crimes under the first 13 Titles of Book II of the
Revised Penal Code, as amended.
Indeed, the notion that quasi-offenses, whether reckless or simple, are distinct
species of crime, separately defined and penalized under the framework of
our penal laws, is nothing new. As early as the middle of the last century, we
already sought to bring clarity to this field by rejecting in Quizon v. Justice
of the Peace of Pampanga the proposition that "reckless imprudence is not a
crime in itself but simply a way of committing it x x x"17 on three points of
analysis: (1) the object of punishment in quasi-crimes (as opposed to
intentional crimes); (2) the legislative intent to treat quasi-crimes as distinct
offenses (as opposed to subsuming them under the mitigating circumstance
of minimal intent) and; (3) the different penalty structures for quasi-crimes
and intentional crimes:
The proposition (inferred from Art. 3 of the Revised Penal Code) that
"reckless imprudence" is not a crime in itself but simply a way of committing
it and merely determines a lower degree of criminal liability is too broad to
deserve unqualified assent. There are crimes that by their structure cannot be
committed through imprudence: murder, treason, robbery, malicious
mischief, etc. In truth, criminal negligence in our Revised Penal Code is
treated as a mere quasi offense, and dealt with separately from willful
offenses. It is not a mere question of classification or terminology. In
intentional crimes, the act itself is punished; in negligence or imprudence,
what is principally penalized is the mental attitude or condition behind the
act, the dangerous recklessness, lack of care or foresight, the imprudencia
punible. x x x x
Were criminal negligence but a modality in the commission of felonies,
operating only to reduce the penalty therefor, then it would be absorbed in
the mitigating circumstances of Art. 13, specially the lack of intent to commit
so grave a wrong as the one actually committed. Furthermore, the theory
would require that the corresponding penalty should be fixed in proportion to
the penalty prescribed for each crime when committed willfully. For each
penalty for the willful offense, there would then be a corresponding penalty
for the negligent variety. But instead, our Revised Penal Code (Art. 365) fixes
the penalty for reckless imprudence at arresto mayor maximum, to prision
correccional [medium], if the willful act would constitute a grave felony,
notwithstanding that the penalty for the latter could range all the way from
prision mayor to death, according to the case. It can be seen that the actual
464
penalty for criminal negligence bears no relation to the individual willful
crime, but is set in relation to a whole class, or series, of crimes.18 (Emphasis
supplied)
This explains why the technically correct way to allege quasi-crimes is to
state that their commission results in damage, either to person or property.19
Accordingly, we found the Justice of the Peace in Quizon without jurisdiction
to hear a case for "Damage to Property through Reckless Imprudence," its
jurisdiction being limited to trying charges for Malicious Mischief, an
intentional crime conceptually incompatible with the element of imprudence
obtaining in quasi-crimes.
Quizon, rooted in Spanish law20 (the normative ancestry of our present day
penal code) and since repeatedly reiterated,21 stands on solid conceptual
foundation. The contrary doctrinal pronouncement in People v. Faller22 that
"[r]eckless impudence is not a crime in itself x x x [but] simply a way of
committing it x x x,"23 has long been abandoned when the Court en banc
promulgated Quizon in 1955 nearly two decades after the Court decided
Faller in 1939. Quizon rejected Faller’s conceptualization of quasi-crimes by
holding that quasi-crimes under Article 365 are distinct species of crimes and
not merely methods of committing crimes. Faller found expression in post-
Quizon jurisprudence24 only by dint of lingering doctrinal confusion arising
from an indiscriminate fusion of criminal law rules defining Article 365
crimes and the complexing of intentional crimes under Article 48 of the
Revised Penal Code which, as will be shown shortly, rests on erroneous
conception of quasi-crimes. Indeed, the Quizonian conception of quasi-
crimes undergirded a related branch of jurisprudence applying the Double
Jeopardy Clause to quasi-offenses, barring second prosecutions for a quasi-
offense alleging one resulting act after a prior conviction or acquittal of a
quasi-offense alleging another resulting act but arising from the same reckless
act or omission upon which the second prosecution was based.
Prior Conviction or Acquittal of
Reckless Imprudence Bars
Subsequent Prosecution for the Same
Quasi-Offense
The doctrine that reckless imprudence under Article 365 is a single quasi-
offense by itself and not merely a means to commit other crimes such that
conviction or acquittal of such quasi-offense bars subsequent prosecution for
the same quasi-offense, regardless of its various resulting acts, undergirded
this Court’s unbroken chain of jurisprudence on double jeopardy as applied
to Article 365 starting with People v. Diaz,25 decided in 1954. There, a full
Court, speaking through Mr. Justice Montemayor, ordered the dismissal of a
case for "damage to property thru reckless imprudence" because a prior case
against the same accused for "reckless driving," arising from the same act
upon which the first prosecution was based, had been dismissed earlier. Since
then, whenever the same legal question was brought before the Court, that is,
whether prior conviction or acquittal of reckless imprudence bars subsequent
prosecution for the same quasi-offense, regardless of the consequences
alleged for both charges, the Court unfailingly and consistently answered in
the affirmative in People v. Belga26 (promulgated in 1957 by the Court en
banc, per Reyes, J.), Yap v. Lutero27 (promulgated in 1959, unreported, per
Concepcion, J.), People v. Narvas28 (promulgated in 1960 by the Court en
banc, per Bengzon J.), People v. Silva29 (promulgated in 1962 by the Court
en banc, per Paredes, J.), People v. Macabuhay30 (promulgated in 1966 by
the Court en banc, per Makalintal, J.), People v. Buan31 (promulgated in
1968 by the Court en banc, per Reyes, J.B.L., acting C. J.), Buerano v. Court
of Appeals32 (promulgated in 1982 by the Court en banc, per Relova, J.), and
People v. City Court of Manila33 (promulgated in 1983 by the First Division,
per Relova, J.). These cases uniformly barred the second prosecutions as
constitutionally impermissible under the Double Jeopardy Clause.
The reason for this consistent stance of extending the constitutional
protection under the Double Jeopardy Clause to quasi-offenses was best
articulated by Mr. Justice J.B.L. Reyes in Buan, where, in barring a
subsequent prosecution for "serious physical injuries and damage to property
thru reckless imprudence" because of the accused’s prior acquittal of "slight
physical injuries thru reckless imprudence," with both charges grounded on
the same act, the Court explained:34
Reason and precedent both coincide in that once convicted or acquitted of a
specific act of reckless imprudence, the accused may not be prosecuted again
for that same act. For the essence of the quasi offense of criminal negligence
under article 365 of the Revised Penal Code lies in the execution of an
imprudent or negligent act that, if intentionally done, would be punishable as
a felony. The law penalizes thus the negligent or careless act, not the result
thereof. The gravity of the consequence is only taken into account to
determine the penalty, it does not qualify the substance of the offense. And,
465
as the careless act is single, whether the injurious result should affect one
person or several persons, the offense (criminal negligence) remains one and
the same, and can not be split into different crimes and prosecutions.35 x x x
(Emphasis supplied)
Evidently, the Diaz line of jurisprudence on double jeopardy merely extended
to its logical conclusion the reasoning of Quizon.
There is in our jurisprudence only one ruling going against this unbroken line
of authority. Preceding Diaz by more than a decade, El Pueblo de Filipinas v.
Estipona,36 decided by the pre-war colonial Court in November 1940,
allowed the subsequent prosecution of an accused for reckless imprudence
resulting in damage to property despite his previous conviction for multiple
physical injuries arising from the same reckless operation of a motor vehicle
upon which the second prosecution was based. Estipona’s inconsistency with
the post-war Diaz chain of jurisprudence suffices to impliedly overrule it. At
any rate, all doubts on this matter were laid to rest in 1982 in Buerano.37
There, we reviewed the Court of Appeals’ conviction of an accused for
"damage to property for reckless imprudence" despite his prior conviction for
"slight and less serious physical injuries thru reckless imprudence," arising
from the same act upon which the second charge was based. The Court of
Appeals had relied on Estipona. We reversed on the strength of Buan:38
Th[e] view of the Court of Appeals was inspired by the ruling of this Court
in the pre-war case of People vs. Estipona decided on November 14, 1940.
However, in the case of People vs. Buan, 22 SCRA 1383 (March 29, 1968),
this Court, speaking thru Justice J. B. L. Reyes, held that –
Reason and precedent both coincide in that once convicted or acquitted of a
specific act of reckless imprudence, the accused may not be prosecuted again
for that same act. For the essence of the quasi offense of criminal negligence
under Article 365 of the Revised Penal Code lies in the execution of an
imprudent or negligent act that, if intentionally done, would be punishable as
a felony. The law penalizes thus the negligent or careless act, not the result
thereof. The gravity of the consequence is only taken into account to
determine the penalty, it does not qualify the substance of the offense. And,
as the careless act is single, whether the injurious result should affect one
person or several persons, the offense (criminal negligence) remains one and
the same, and can not be split into different crimes and prosecutions.
xxxx
. . . the exoneration of this appellant, Jose Buan, by the Justice of the Peace
(now Municipal) Court of Guiguinto, Bulacan, of the charge of slight physical
injuries through reckless imprudence, prevents his being prosecuted for
serious physical injuries through reckless imprudence in the Court of First
Instance of the province, where both charges are derived from the
consequences of one and the same vehicular accident, because the second
accusation places the appellant in second jeopardy for the same offense.39
(Emphasis supplied)
Thus, for all intents and purposes, Buerano had effectively overruled
Estipona.
It is noteworthy that the Solicitor General in Buerano, in a reversal of his
earlier stance in Silva, joined causes with the accused, a fact which did not
escape the Court’s attention:
Then Solicitor General, now Justice Felix V. Makasiar, in his
MANIFESTATION dated December 12, 1969 (page 82 of the Rollo) admits
that the Court of Appeals erred in not sustaining petitioner’s plea of double
jeopardy and submits that "its affirmatory decision dated January 28, 1969,
in Criminal Case No. 05123-CR finding petitioner guilty of damage to
property through reckless imprudence should be set aside, without costs." He
stressed that "if double jeopardy exists where the reckless act resulted into
homicide and physical injuries. then the same consequence must perforce
follow where the same reckless act caused merely damage to property-not
death-and physical injuries. Verily, the value of a human life lost as a result
of a vehicular collision cannot be equated with any amount of damages
caused to a motors vehicle arising from the same mishap."40 (Emphasis
supplied)
Hence, we find merit in petitioner’s submission that the lower courts erred in
refusing to extend in his favor the mantle of protection afforded by the Double
Jeopardy Clause. A more fitting jurisprudence could not be tailored to
petitioner’s case than People v. Silva, 41 a Diaz progeny. There, the accused,
who was also involved in a vehicular collision, was charged in two separate
Informations with "Slight Physical Injuries thru Reckless Imprudence" and
"Homicide with Serious Physical Injuries thru Reckless Imprudence."
Following his acquittal of the former, the accused sought the quashal of the
466
latter, invoking the Double Jeopardy Clause. The trial court initially denied
relief, but, on reconsideration, found merit in the accused’s claim and
dismissed the second case. In affirming the trial court, we quoted with
approval its analysis of the issue following Diaz and its progeny People v.
Belga:42
On June 26, 1959, the lower court reconsidered its Order of May 2, 1959 and
dismissed the case, holding: —
[T]he Court believes that the case falls squarely within the doctrine of double
jeopardy enunciated in People v. Belga, x x x In the case cited, Ciriaco Belga
and Jose Belga were charged in the Justice of the Peace Court of Malilipot,
Albay, with the crime of physical injuries through reckless imprudence
arising from a collision between the two automobiles driven by them (Crim.
Case No. 88). Without the aforesaid complaint having been dismissed or
otherwise disposed of, two other criminal complaints were filed in the same
justice of the peace court, in connection with the same collision one for
damage to property through reckless imprudence (Crim. Case No. 95) signed
by the owner of one of the vehicles involved in the collision, and another for
multiple physical injuries through reckless imprudence (Crim. Case No. 96)
signed by the passengers injured in the accident. Both of these two complaints
were filed against Jose Belga only. After trial, both defendants were acquitted
of the charge against them in Crim. Case No. 88. Following his acquittal, Jose
Belga moved to quash the complaint for multiple physical injuries through
reckless imprudence filed against him by the injured passengers, contending
that the case was just a duplication of the one filed by the Chief of Police
wherein he had just been acquitted. The motion to quash was denied and after
trial Jose Belga was convicted, whereupon he appealed to the Court of First
Instance of Albay. In the meantime, the case for damage to property through
reckless imprudence filed by one of the owners of the vehicles involved in
the collision had been remanded to the Court of First Instance of Albay after
Jose Belga had waived the second stage of the preliminary investigation.
After such remand, the Provincial Fiscal filed in the Court of First Instance
two informations against Jose Belga, one for physical injuries through
reckless imprudence, and another for damage to property through reckless
imprudence. Both cases were dismissed by the Court of First Instance, upon
motion of the defendant Jose Belga who alleged double jeopardy in a motion
to quash. On appeal by the Prov. Fiscal, the order of dismissal was affirmed
by the Supreme Court in the following language: .
The question for determination is whether the acquittal of Jose Belga in the
case filed by the chief of police constitutes a bar to his subsequent prosecution
for multiple physical injuries and damage to property through reckless
imprudence.
In the case of Peo[ple] v. F. Diaz, G. R. No. L-6518, prom. March 30, 1954,
the accused was charged in the municipal court of Pasay City with reckless
driving under sec. 52 of the Revised Motor Vehicle Law, for having driven
an automobile in a ῾fast and reckless manner ... thereby causing an accident.’
After the accused had pleaded not guilty the case was dismissed in that court
῾for failure of the Government to prosecute’. But some time thereafter the city
attorney filed an information in the Court of First Instance of Rizal, charging
the same accused with damage to property thru reckless imprudence. The
amount of the damage was alleged to be ₱249.50. Pleading double jeopardy,
the accused filed a motion, and on appeal by the Government we affirmed the
ruling. Among other things we there said through Mr. Justice Montemayor
—
The next question to determine is the relation between the first offense of
violation of the Motor Vehicle Law prosecuted before the Pasay City
Municipal Court and the offense of damage to property thru reckless
imprudence charged in the Rizal Court of First Instance. One of the tests of
double jeopardy is whether or not the second offense charged necessarily
includes or is necessarily included in the offense charged in the former
complaint or information (Rule 113, Sec. 9). Another test is whether the
evidence which proves one would prove the other that is to say whether the
facts alleged in the first charge if proven, would have been sufficient to
support the second charge and vice versa; or whether one crime is an
ingredient of the other. x x x
xxxx
The foregoing language of the Supreme Court also disposes of the contention
of the prosecuting attorney that the charge for slight physical injuries through
reckless imprudence could not have been joined with the charge for homicide
with serious physical injuries through reckless imprudence in this case, in
view of the provisions of Art. 48 of the Revised Penal Code, as amended. The
prosecution’s contention might be true. But neither was the prosecution
obliged to first prosecute the accused for slight physical injuries through
reckless imprudence before pressing the more serious charge of homicide
467
with serious physical injuries through reckless imprudence. Having first
prosecuted the defendant for the lesser offense in the Justice of the Peace
Court of Meycauayan, Bulacan, which acquitted the defendant, the
prosecuting attorney is not now in a position to press in this case the more
serious charge of homicide with serious physical injuries through reckless
imprudence which arose out of the same alleged reckless imprudence of
which the defendant have been previously cleared by the inferior court.43
Significantly, the Solicitor General had urged us in Silva to reexamine Belga
(and hence, Diaz) "for the purpose of delimiting or clarifying its
application."44 We declined the invitation, thus:
The State in its appeal claims that the lower court erred in dismissing the case,
on the ground of double jeopardy, upon the basis of the acquittal of the
accused in the JP court for Slight Physical Injuries, thru Reckless
Imprudence. In the same breath said State, thru the Solicitor General, admits
that the facts of the case at bar, fall squarely on the ruling of the Belga case x
x x, upon which the order of dismissal of the lower court was anchored. The
Solicitor General, however, urges a re-examination of said ruling, upon
certain considerations for the purpose of delimiting or clarifying its
application. We find, nevertheless, that further elucidation or disquisition on
the ruling in the Belga case, the facts of which are analogous or similar to
those in the present case, will yield no practical advantage to the government.
On one hand, there is nothing which would warrant a delimitation or
clarification of the applicability of the Belga case. It was clear. On the other,
this Court has reiterated the views expressed in the Belga case, in the identical
case of Yap v. Hon. Lutero, etc., L-12669, April 30, 1959.45 (Emphasis
supplied)
Article 48 Does not Apply to Acts Penalized
Under Article 365 of the Revised Penal Code
The confusion bedeviling the question posed in this petition, to which the
MeTC succumbed, stems from persistent but awkward attempts to harmonize
conceptually incompatible substantive and procedural rules in criminal law,
namely, Article 365 defining and penalizing quasi-offenses and Article 48 on
complexing of crimes, both under the Revised Penal Code. Article 48 is a
procedural device allowing single prosecution of multiple felonies falling
under either of two categories: (1) when a single act constitutes two or more
grave or less grave felonies (thus excluding from its operation light
felonies46); and (2) when an offense is a necessary means for committing the
other. The legislature crafted this procedural tool to benefit the accused who,
in lieu of serving multiple penalties, will only serve the maximum of the
penalty for the most serious crime.
In contrast, Article 365 is a substantive rule penalizing not an act defined as
a felony but "the mental attitude x x x behind the act, the dangerous
recklessness, lack of care or foresight x x x,"47 a single mental attitude
regardless of the resulting consequences. Thus, Article 365 was crafted as
one quasi-crime resulting in one or more consequences.
Ordinarily, these two provisions will operate smoothly. Article 48 works to
combine in a single prosecution multiple intentional crimes falling under
Titles 1-13, Book II of the Revised Penal Code, when proper; Article 365
governs the prosecution of imprudent acts and their consequences. However,
the complexities of human interaction can produce a hybrid quasi-offense not
falling under either models – that of a single criminal negligence resulting in
multiple non-crime damages to persons and property with varying penalties
corresponding to light, less grave or grave offenses. The ensuing
prosecutorial dilemma is obvious: how should such a quasi-crime be
prosecuted? Should Article 48’s framework apply to "complex" the single
quasi-offense with its multiple (non-criminal) consequences (excluding those
amounting to light offenses which will be tried separately)? Or should the
prosecution proceed under a single charge, collectively alleging all the
consequences of the single quasi-crime, to be penalized separately following
the scheme of penalties under Article 365?
Jurisprudence adopts both approaches. Thus, one line of rulings (none of
which involved the issue of double jeopardy) applied Article 48 by
"complexing" one quasi-crime with its multiple consequences48 unless one
consequence amounts to a light felony, in which case charges were split by
grouping, on the one hand, resulting acts amounting to grave or less grave
felonies and filing the charge with the second level courts and, on the other
hand, resulting acts amounting to light felonies and filing the charge with the
first level courts.49 Expectedly, this is the approach the MeTC impliedly
sanctioned (and respondent Ponce invokes), even though under Republic Act
No. 7691,50 the MeTC has now exclusive original jurisdiction to impose the
most serious penalty under Article 365 which is prision correccional in its
medium period.
468
Under this approach, the issue of double jeopardy will not arise if the
"complexing" of acts penalized under Article 365 involves only resulting acts
penalized as grave or less grave felonies because there will be a single
prosecution of all the resulting acts. The issue of double jeopardy arises if one
of the resulting acts is penalized as a light offense and the other acts are
penalized as grave or less grave offenses, in which case Article 48 is not
deemed to apply and the act penalized as a light offense is tried separately
from the resulting acts penalized as grave or less grave offenses.
The second jurisprudential path nixes Article 48 and sanctions a single
prosecution of all the effects of the quasi-crime collectively alleged in one
charge, regardless of their number or severity,51 penalizing each
consequence separately. Thus, in Angeles v. Jose,52 we interpreted paragraph
three of Article 365, in relation to a charge alleging "reckless imprudence
resulting in damage to property and less serious physical injuries," as follows:
[T]he third paragraph of said article, x x x reads as follows:
When the execution of the act covered by this article shall have only resulted
in damage to the property of another, the offender shall be punished by a fine
ranging from an amount equal to the value of said damage to three times such
value, but which shall in no case be less than 25 pesos.
The above-quoted provision simply means that if there is only damage to
property the amount fixed therein shall be imposed, but if there are also
physical injuries there should be an additional penalty for the latter. The
information cannot be split into two; one for the physical injuries, and another
for the damage to property, x x x.53 (Emphasis supplied)
By "additional penalty," the Court meant, logically, the penalty scheme under
Article 365.
Evidently, these approaches, while parallel, are irreconcilable. Coherence in
this field demands choosing one framework over the other. Either (1) we
allow the "complexing" of a single quasi-crime by breaking its resulting acts
into separate offenses (except for light felonies), thus re-conceptualize a
quasi-crime, abandon its present framing under Article 365, discard its
conception under the Quizon and Diaz lines of cases, and treat the multiple
consequences of a quasi-crime as separate intentional felonies defined under
Titles 1-13, Book II under the penal code; or (2) we forbid the application of
Article 48 in the prosecution and sentencing of quasi-crimes, require single
prosecution of all the resulting acts regardless of their number and severity,
separately penalize each as provided in Article 365, and thus maintain the
distinct concept of quasi-crimes as crafted under Article 365, articulated in
Quizon and applied to double jeopardy adjudication in the Diaz line of
cases.1avvphi1
A becoming regard of this Court’s place in our scheme of government
denying it the power to make laws constrains us to keep inviolate the
conceptual distinction between quasi-crimes and intentional felonies under
our penal code. Article 48 is incongruent to the notion of quasi-crimes under
Article 365. It is conceptually impossible for a quasi-offense to stand for (1)
a single act constituting two or more grave or less grave felonies; or (2) an
offense which is a necessary means for committing another. This is why, way
back in 1968 in Buan, we rejected the Solicitor General’s argument that
double jeopardy does not bar a second prosecution for slight physical injuries
through reckless imprudence allegedly because the charge for that offense
could not be joined with the other charge for serious physical injuries through
reckless imprudence following Article 48 of the Revised Penal Code:
The Solicitor General stresses in his brief that the charge for slight physical
injuries through reckless imprudence could not be joined with the accusation
for serious physical injuries through reckless imprudence, because Article 48
of the Revised Penal Code allows only the complexing of grave or less grave
felonies. This same argument was considered and rejected by this Court in
the case of People vs. [Silva] x x x:
[T]he prosecution’s contention might be true. But neither was the prosecution
obliged to first prosecute the accused for slight physical injuries through
reckless imprudence before pressing the more serious charge of homicide
with serious physical injuries through reckless imprudence. Having first
prosecuted the defendant for the lesser offense in the Justice of the Peace
Court of Meycauayan, Bulacan, which acquitted the defendant, the
prosecuting attorney is not now in a position to press in this case the more
serious charge of homicide with serious physical injuries through reckless
imprudence which arose out of the same alleged reckless imprudence of
which the defendant has been previously cleared by the inferior court.
[W]e must perforce rule that the exoneration of this appellant x x x by the
Justice of the Peace x x x of the charge of slight physical injuries through
469
reckless imprudence, prevents his being prosecuted for serious physical Let a copy of this ruling be served on the President of the Senate and the
injuries through reckless imprudence in the Court of First Instance of the Speaker of the House of Representatives.
province, where both charges are derived from the consequences of one and
the same vehicular accident, because the second accusation places the
appellant in second jeopardy for the same offense.54 (Emphasis supplied)

Indeed, this is a constitutionally compelled choice. By prohibiting the

splitting of charges under Article 365, irrespective of the number and severity
of the resulting acts, rampant occasions of constitutionally impermissible
second prosecutions are avoided, not to mention that scarce state resources
are conserved and diverted to proper use.

Hence, we hold that prosecutions under Article 365 should proceed from a
single charge regardless of the number or severity of the consequences. In
imposing penalties, the judge will do no more than apply the penalties under
Article 365 for each consequence alleged and proven. In short, there shall be
no splitting of charges under Article 365, and only one information shall be
filed in the same first level court.55

Our ruling today secures for the accused facing an Article 365 charge a
stronger and simpler protection of their constitutional right under the Double
Jeopardy Clause. True, they are thereby denied the beneficent effect of the
favorable sentencing formula under Article 48, but any disadvantage thus
caused is more than compensated by the certainty of non-prosecution for
quasi-crime effects qualifying as "light offenses" (or, as here, for the more
serious consequence prosecuted belatedly). If it is so minded, Congress can
re-craft Article 365 by extending to quasi-crimes the sentencing formula of
Article 48 so that only the most severe penalty shall be imposed under a single
prosecution of all resulting acts, whether penalized as grave, less grave or
light offenses. This will still keep intact the distinct concept of quasi-offenses.
Meanwhile, the lenient schedule of penalties under Article 365, befitting
crimes occupying a lower rung of culpability, should cushion the effect of
this ruling.

WHEREFORE, we GRANT the petition. We REVERSE the Orders dated 2

February 2006 and 2 May 2006 of the Regional Trial Court of Pasig City,
Branch 157. We DISMISS the Information in Criminal Case No. 82366
against petitioner Jason Ivler y Aguilar pending with the Metropolitan Trial
Court of Pasig City, Branch 71 on the ground of double jeopardy.

470

G.R. No. L-45129 March 6, 1987
PEOPLE OF THE PHILIPPINES, petitioner,
vs.
THE HONORABLE BENJAMIN RELOVA, in his capacity as Presiding
Judge of the Court of First Instance of Batangas, Second Branch, and
MANUEL OPULENCIA, respondents.
FELICIANO, J.:
In this petition for certiorari and mandamus, the People of the Philippines
seek to set aside the orders of the respondent Judge of the Court of First
Instance of Batangas in Criminal Case No. 266, dated 12 August 1976 and 8
November 1976, respectively, quashing an information for theft filed against
private respondent Manuel Opulencia on the ground of double jeopardy and
denying the petitioner's motion for reconsideration.
On 1 February 1975, members of the Batangas City Police together with
personnel of the Batangas Electric Light System, equipped with a search
warrant issued by a city judge of Batangas City, searched and examined the
premises of the Opulencia Carpena Ice Plant and Cold Storage owned and
operated by the private respondent Manuel Opulencia. The police discovered
that electric wiring, devices and contraptions had been installed, without the
necessary authority from the city government, and "architecturally concealed
inside the walls of the building" 1 owned by the private respondent. These
electric devices and contraptions were, in the allegation of the petitioner
"designed purposely to lower or decrease the readings of electric current
consumption in the electric meter of the said electric [ice and cold storage]
plant." 2 During the subsequent investigation, Manuel Opulencia admitted in
a written statement that he had caused the installation of the electrical devices
"in order to lower or decrease the readings of his electric meter. 3
On 24 November 1975, an Assistant City Fiscal of Batangas City filed before
the City Court of Batangas City an information against Manuel Opulencia for
violation of Ordinance No. 1, Series of 1974, Batangas City. A violation of
this ordinance was, under its terms, punishable by a fine "ranging from Five
Pesos (P5.00) to Fifty Pesos (P50.00) or imprisonment, which shall not
exceed thirty (30) days, or both, at the discretion of the court." 4 This
information reads as follows:
The undersigned, Assistant City Fiscal, accuses Manuel Opulencia y Lat of
violation of Sec. 3 (b) in relation to Sec. 6 (d) and Sec. 10 Article II, Title IV
of ordinance No. 1, S. 1974, with damage to the City Government of
Batangas, and penalized by the said ordinance, committed as follows:
That from November, 1974 to February, 1975 at Batangas City, Philippines
and within the jurisdiction of this Honorable Court, the above-named
accused, with intent to defraud the City Government of Batangas, without
proper authorization from any lawful and/or permit from the proper
authorities, did then and there wilfully, unlawfully and feloniously make
unauthorized installations of electric wirings and devices to lower or decrease
the consumption of electric fluid at the Opulencia Ice Plant situated at
Kumintang, Ibaba, this city and as a result of such unathorized installations
of electric wirings and devices made by the accused, the City Government of
Batangas was damaged and prejudiced in the total amount of FORTY ONE
THOUSAND, SIXTY TWO PESOS AND SIXTEEN CENTAVOS
471
(P41,062.16) Philippine currency, covering the period from November 1974
to February, 1975, to the damage and prejudice of the City Government of
Batangas in the aforestated amount of P41,062.16, Philippine currency.
The accused Manuel Opulencia pleaded not guilty to the above information.
On 2 February 1976, he filed a motion to dismiss the information upon the
grounds that the crime there charged had already prescribed and that the civil
indemnity there sought to be recovered was beyond the jurisdiction of the
Batangas City Court to award. In an order dated 6 April 1976, the Batangas
City Court granted the motion to dismiss on the ground of prescription, it
appearing that the offense charged was a light felony which prescribes two
months from the time of discovery thereof, and it appearing further that the
information was filed by the fiscal more than nine months after discovery of
the offense charged in February 1975.
Fourteen (14) days later, on 20 April 1976, the Acting City Fiscal of Batangas
City filed before the Court of First Instance of Batangas, Branch 11, another
information against Manuel Opulencia, this time for theft of electric power
under Article 308 in relation to Article 309, paragraph (1), of the Revised
Penal Code. This information read as follows:
The undersigned Acting City Fiscal accuses Manuel Opulencia y Lat of the
crime of theft, defined and penalized by Article 308, in relation to Article
309, paragraph (1) of the Revised Penal Code, committed as follows:
That on, during, and between the month of November, 1974, and the 21st day
of February, 1975, at Kumintang, lbaba, Batangas City, Philippines, and
within the jurisdiction of this Honorable Court, the above-named accused,
with intent of gain and without the knowledge and consent of the Batangas
Electric Light System, did then and there, wilfully, unlawfully and
feloniously take, steal and appropriate electric current valued in the total
amount of FORTY ONE THOUSAND, SIXTY TWO PESOS AND
SIXTEEN CENTAVOS (P41,062.16) Philippine Currency, to the damage
and prejudice of the said Batangas Electric Light System, owned and operated
by the City Government of Batangas, in the aforementioned sum of
P41,062.16.
The above information was docketed as Criminal Case No. 266 before the
Court of First Instance of Batangas, Branch II. Before he could be arraigned
thereon, Manuel Opulencia filed a Motion to Quash, dated 5 May 1976,
alleging that he had been previously acquitted of the offense charged in the
second information and that the filing thereof was violative of his
constitutional right against double jeopardy. By Order dated 16 August 1976,
the respondent Judge granted the accused's Motion to Quash and ordered the
case dismissed. The gist of this Order is set forth in the following paragraphs:
The only question here is whether the dismissal of the first case can be
properly pleaded by the accused in the motion to quash.
In the first paragraph of the earlier information, it alleges that the prosecution
"accuses Manuel Opulencia y Lat of violation of Sec. 3(b) in relation to Sec.
6(d) and Sec. 10 Article II, Title IV of Ordinance No. 1, s. 1974, with damage
to the City Government of Batangas, etc. " (Emphasis supplied). The first
case, as it appears, was not simply one of illegal electrical connections. It also
covered an amount of P41,062.16 which the accused, in effect, allegedly with
intent to defraud, deprived the city government of Batangas. If the charge had
meant illegal electric installations only, it could have alleged illegal
connections which were done at one instance on a particular date between
November, 1974, to February 21, 1975. But as the information states "that
from November, 1974 to February 1975 at Batangas City, Philippines, and
within the jurisdiction of this Honorable Court, the above-named accused
with intent to defraud the City Government of Batangas, without proper
authorization from any lawful and/or permit from the proper authorities, did
then and there wilfully, unlawfully and feloniously make unauthorized
installations of electric wirings and devices, etc." (Emphasis supplied), it was
meant to include the P 41,062.16 which the accused had, in effect, defrauded
the city government. The information could not have meant that from
November 1974 to 21 February 1975, he had daily committed unlawful
installations.
When, therefore, he was arraigned and he faced the indictment before the City
Court, he had already been exposed, or he felt he was exposed to
consequences of what allegedly happened between November 1974 to
February 21, 1975 which had allegedly resulted in defrauding the City of
Batangas in the amount of P 41,062.16. (Emphases and parentheses in the
original)
A Motion for Reconsideration of the above-quoted Order filed by the
petitioner was denied by the respondent Judge in an Order dated 18
November 1976.
472

On 1 December 1976, the present Petition for certiorari and mandamus was
filed in this Court by the Acting City Fiscal of Batangas City on behalf of the
People.
The basic premise of the petitioner's position is that the constitutional
protection against double jeopardy is protection against a second or later
jeopardy of conviction for the same offense. The petitioner stresses that the
first information filed before the City Court of Batangas City was one for
unlawful or unauthorized installation of electrical wiring and devices, acts
which were in violation of an ordinance of the City Government of Batangas.
Only two elements are needed to constitute an offense under this City
Ordinance: (1) that there was such an installation; and (2) no authority
therefor had been obtained from the Superintendent of the Batangas City
Electrical System or the District Engineer. The petitioner urges that the
relevant terms of the City Ordinance — which read as follows:
Section 3.-Connection and Installation
(a) xxx
(b) The work and installation in the houses and building and their
connection with the Electrical System shall be done either by the employee
of the system duly authorized by its Superintendent or by persons adept in the
matter duly authorized by the District Engineer. Applicants for electrical
service permitting the works of installation or connection with the system to
be undertaken by the persons not duly authorized therefor shall be considered
guilty of violation of the ordinance.
would show that:
The principal purpose for (sic) such a provision is to ensure that electrical
installations on residences or buildings be done by persons duly authorized
or adept in the matter, to avoid fires and accidents due to faulty electrical
wirings. It is primarily a regulatory measure and not intended to punish or
curb theft of electric fluid which is already covered by the Revised Penal
Code. 5
The gist of the offense under the City Ordinance, the petitioner's argument
continues, is the installing of electric wiring and devices without authority
from the proper officials of the city government. To constitute an offense
under the city ordinance, it is not essential to establish any mens rea on the
part of the offender generally speaking, nor, more specifically, an intent to
appropriate and steal electric fluid.
In contrast, the petitioner goes on, the offense of theft under Article 308 of
the Revised Penal Code filed before the Court of First Instance of Batangas
in Criminal Case No. 266 has quite different essential elements. These
elements are:
1. That personal property be taken;
2. That the personal property (taken) belongs to another;
3. That the taking be done with intent of gain;
4. That the taking be done without the consent of the owner; and
5. That the taking be accomplished without violence against or
intimidation of persons or force upon things. 6
The petitioner also alleges, correctly, in our view, that theft of electricity can
be effected even without illegal or unauthorized installations of any kind by,
for instance, any of the following means:
1. Turning back the dials of the electric meter;
2. Fixing the electric meter in such a manner that it will not register the
actual electrical consumption;
3. Under-reading of electrical consumption; and
4. By tightening the screw of the rotary blade to slow down the rotation
of the same. 7
The petitioner concludes that:
The unauthorized installation punished by the ordinance [of Batangas City]
is not the same as theft of electricity [under the Revised Penal Code]; that the
second offense is not an attempt to commit the first or a frustration thereof
473
and that the second offense is not necessarily included in the offense charged
in the first inforrnation 8
The above arguments made by the petitioner are of course correct. This is
clear both from the express terms of the constitutional provision involved —
which reads as follows:
No person shall be twice put in jeopardy of punishment for the same offense.
If an act is punished by a law and an ordinance, conviction or acquittal under
either shall constitute a bar to another prosecution for the same act. (Emphasis
supplied; Article IV (22), 1973 Constitution) 9
and from our case law on this point. 10 The basic difficulty with the
petitioner's position is that it must be examined, not under the terms of the
first sentence of Article IV (22) of the 1973 Constitution, but rather under the
second sentence of the same section. The first sentence of Article IV (22) sets
forth the general rule: the constitutional protection against double jeopardy is
not available where the second prosecution is for an offense that is different
from the offense charged in the first or prior prosecution, although both the
first and second offenses may be based upon the same act or set of acts. The
second sentence of Article IV (22) embodies an exception to the general
proposition: the constitutional protection, against double jeopardy is
available although the prior offense charged under an ordinance be different
from the offense charged subsequently under a national statute such as the
Revised Penal Code, provided that both offenses spring from the same act or
set of acts. This was made clear sometime ago in Yap vs. Lutero. 11
In Yap, petitioner Manuel Yap was charged in Criminal Case No. 16054 of
the Municipal Court of Iloilo City, with violation of Article 14 of Ordinance
No. 22, Series of 1951, in relation to Ordinance No. 15, Series of 1954, of the
City of Iloilo. The information charged him with having "wilfully, unlawfully
and feloniously drive[n] and operate[d]" an automobile — "recklessly and
without reasonable caution thereby endangering other vehicles and
pedestrians passing in said street." Three months later, Yap was again charged
in Criminal Case No. 16443 of the same Municipal Court, this time with
serious physical injuries through reckless imprudence. The information
charged him with violation of the Revised Motor Vehicle Law (Act No. 3992
as amended by Republic Act No. 587) committed by driving and operating
an automobile in a reckless and negligent manner and as a result thereof
inflicting injuries upon an unfortunate pedestrian. Yap moved to quash the
second information upon the ground that it placed him twice in jeopardy of
punishment for the same act. This motion was denied by the respondent
municipal judge. Meantime, another municipal judge had acquitted Yap in
Criminal Case No. 16054. Yap then instituted a petition for certiorari in the
Court of First Instance of Iloilo to set aside the order of the respondent
municipal judge. The Court of First Instance of Iloilo having reversed the
respondent municipal judge and having directed him to desist from
continuing with Criminal Case No. 16443, the respondent Judge brought the
case to the Supreme Court for review on appeal. In affirming the decision
appealed from and holding that the constitutional protection against double
jeopardy was available to petitioner Yap, then Associate Justice and later
Chief Justice Roberto Concepcion wrote:
To begin with, the crime of damage to property through reckless driving —
with which Diaz stood charged in the court of first instance — is a violation
of the Revised Penal Code (third paragraph of Article 365), not the
Automobile Law (Act No. 3992, as amended by Republic Act No. 587).
Hence, Diaz was not twice accused of a violation of the same law. Secondly,
reckless driving and certain crimes committed through reckless driving are
punishable under different provisions of said Automobile Law. Hence —
from the view point of Criminal Law, as distinguished from political or
Constitutional Law — they constitute, strictly, different offenses, although
under certain conditions, one offense may include the other, and, accordingly,
once placed in jeopardy for one, the plea of double jeopardy may be in order
as regards the other, as in the Diaz case. (Emphases in the original)
Thirdly, our Bill of Rights deals with two (2) kinds of double jeopardy. The
first sentence of clause 20, section 1, Article III of the Constitution, ordains
that "no person shall be twice put in jeopardy of punishment for the same
offense." (Emphasis in the original) The second sentence of said clause
provides that "if an act is punishable by a law and an ordinance, conviction
or acquittal under either shall constitute a bar to another prosecution for the
same act." Thus, the first sentence prohibits double jeopardy of punishment
for the same offense, whereas the second contemplates double jeopardy of
punishment for the same act. Under the first sentence, one may be twice put
in jeopardy of punishment of the same act provided that he is charged with
different offenses, or the offense charged in one case is not included in or
does not include, the crime charged in the other case. The second sentence
applies, even if the offenses charged are not the same, owing to the fact that
one constitutes a violation of an ordinance and the other a violation of a
474
statute. If the two charges are based on one and the same act conviction or
acquittal under either the law or the ordinance shall bar a prosecution under
the other. 12 Incidentally, such conviction or acquittal is not indispensable to
sustain the plea of double jeopardy of punishment for the same offense. So
long as jeopardy has attached under one of the informations charging said
offense, the defense may be availed of in the other case involving the same
offense, even if there has been neither conviction nor acquittal in either case.
The issue in the case at bar hinges, therefore, on whether or not, under the
information in case No. 16443, petitioner could — if he failed to plead double
jeopardy — be convicted of the same act charged in case No. 16054, in which
he has already been acquitted. The information in case No. 16054 alleges,
substantially, that on the date and in the place therein stated, petitioner herein
had wilfully, unlawfully and feloniously driven and operated "recklessly and
without reasonable caution" an automobile described in said information.
Upon the other hand, the information in case No. 16443, similarly states that,
on the same date and in the same place, petitioner drove and operated the
aforementioned automobile in a "reckless and negligent manner at an
excessive rate of speed and in violation of the Revised Motor Vehicle Law
(Act No. 3992), as amended by Republic Act No. 587, and existing city
ordinances." Thus, if the theories mentioned in the second information were
not established by the evidence, petitioner could be convicted in case No.
16443 of the very same violation of municipal ordinance charged in case No.
16054, unless he pleaded double jeopardy.
It is clear, therefore, that the lower court has not erred eventually sustaining
the theory of petitioner herein.
Put a little differently, where the offenses charged are penalized either by
different sections of the same statute or by different statutes, the important
inquiry relates to the identity of offenses charge: the constitutional protection
against double jeopardy is available only where an Identity is shown to exist
between the earlier and the subsequent offenses charged. In contrast, where
one offense is charged under a municipal ordinance while the other is
penalized by a statute, the critical inquiry is to the identity of the acts which
the accused is said to have committed and which are alleged to have given
rise to the two offenses: the constitutional protection against double jeopardy
is available so long as the acts which constitute or have given rise to the first
offense under a municipal ordinance are the same acts which constitute or
have given rise to the offense charged under a statute.
The question may be raised why one rule should exist where two offenses
under two different sections of the same statute or under different statutes are
charged, and another rule for the situation where one offense is charged under
a municipal ordinance and another offense under a national statute. If the
second sentence of the double jeopardy provision had not been written into
the Constitution, conviction or acquittal under a municipal ordinance would
never constitute a bar to another prosecution for the same act under a national
statute. An offense penalized by municipal ordinance is, by definition,
different from an offense under a statute. The two offenses would never
constitute the same offense having been promulgated by different rule-
making authorities — though one be subordinate to the other — and the plea
of double jeopardy would never lie. The discussions during the 1934-1935
Constitutional Convention show that the second sentence was inserted
precisely for the purpose of extending the constitutional protection against
double jeopardy to a situation which would not otherwise be covered by the
first sentence. 13
The question of Identity or lack of Identity of offenses is addressed by
examining the essential elements of each of the two offenses charged, as such
elements are set out in the respective legislative definitions of the offenses
involved. The question of Identity of the acts which are claimed to have
generated liability both under a municipal ordinance and a national statute
must be addressed, in the first instance, by examining the location of such
acts in time and space. When the acts of the accused as set out in the two
informations are so related to each other in time and space as to be reasonably
regarded as having taken place on the same occasion and where those acts
have been moved by one and the same, or a continuing, intent or voluntary
design or negligence, such acts may be appropriately characterized as an
integral whole capable of giving rise to penal liability simultaneously under
different legal enactments (a municipal ordinance and a national statute).
In Yap, the Court regarded the offense of reckless driving under the Iloilo
City Ordinance and serious physical injuries through reckless imprudence
under the Revised Motor Vehicle Law as derived from the same act or sets of
acts — that is, the operation of an automobile in a reckless manner. The
additional technical element of serious physical injuries related to the
physical consequences of the operation of the automobile by the accused, i.e.,
the impact of the automobile upon the body of the offended party. Clearly,
such consequence occurred in the same occasion that the accused operated
475
the automobile (recklessly). The moral element of negligence permeated the
acts of the accused throughout that occasion.
In the instant case, the relevant acts took place within the same time frame:
from November 1974 to February 1975. During this period, the accused
Manuel Opulencia installed or permitted the installation of electrical wiring
and devices in his ice plant without obtaining the necessary permit or
authorization from the municipal authorities. The accused conceded that he
effected or permitted such unauthorized installation for the very purpose of
reducing electric power bill. This corrupt intent was thus present from the
very moment that such unauthorized installation began. The immediate
physical effect of the unauthorized installation was the inward flow of electric
current into Opulencia's ice plant without the corresponding recording thereof
in his electric meter. In other words, the "taking" of electric current was
integral with the unauthorized installation of electric wiring and devices.
It is perhaps important to note that the rule limiting the constitutional
protection against double jeopardy to a subsequent prosecution for the same
offense is not to be understood with absolute literalness. The Identity of
offenses that must be shown need not be absolute Identity: the first and
second offenses may be regarded as the "same offense" where the second
offense necessarily includes the first offense or is necessarily included in such
first offense or where the second offense is an attempt to commit the first or
a frustration thereof. 14 Thus, for the constitutional plea of double jeopardy
to be available, not all the technical elements constituting the first offense
need be present in the technical definition of the second offense. The law here
seeks to prevent harrassment of an accused person by multiple prosecutions
for offenses which though different from one another are nonetheless each
constituted by a common set or overlapping sets of technical elements. As
Associate Justice and later Chief Justice Ricardo Paras cautioned in People
vs. del Carmen et al., 88 Phil. 51 (1951):
While the rule against double jeopardy prohibits prosecution for the same
offense, it seems elementary that an accused should be shielded against being
prosecuted for several offenses made out from a single act. Otherwise, an
unlawful act or omission may give use to several prosecutions depending
upon the ability of the prosecuting officer to imagine or concoct as many
offenses as can be justified by said act or omission, by simply adding or
subtracting essential elements. Under the theory of appellant, the crime of
rape may be converted into a crime of coercion, by merely alleging that by
force and intimidation the accused prevented the offended girl from
remaining a virgin. (88 Phil. at 53; emphases supplied)
By the same token, acts of a person which physically occur on the same
occasion and are infused by a common intent or design or negligence and
therefore form a moral unity, should not be segmented and sliced, as it were,
to produce as many different acts as there are offenses under municipal
ordinances or statutes that an enterprising prosecutor can find
It remains to point out that the dismissal by the Batangas City Court of the
information for violation of the Batangas City Ordinance upon the ground
that such offense had already prescribed, amounts to an acquittal of the
accused of that offense. Under Article 89 of the Revised Penal Code,
"prescription of the crime" is one of the grounds for "total extinction of
criminal liability." Under the Rules of Court, an order sustaining a motion to
quash based on prescription is a bar to another prosecution for the same
offense. 15
It is not without reluctance that we deny the people's petition for certiorari
and mandamus in this case. It is difficult to summon any empathy for a
businessman who would make or enlarge his profit by stealing from the
community. Manuel Opulencia is able to escape criminal punishment because
an Assistant City Fiscal by inadvertence or otherwise chose to file an
information for an offense which he should have known had already
prescribed. We are, however, compelled by the fundamental law to hold the
protection of the right against double jeopardy available even to the private
respondent in this case.
The civil liability aspects of this case are another matter. Because no
reservation of the right to file a separate civil action was made by the
Batangas City electric light system, the civil action for recovery of civil
liability arising from the offense charged was impliedly instituted with the
criminal action both before the City Court of Batangas City and the Court of
First Instance of Batangas. The extinction of criminal liability whether by
prescription or by the bar of double jeopardy does not carry with it the
extinction of civil liability arising from the offense charged. In the present
case, as we noted earlier, 16 accused Manuel Opulencia freely admitted
during the police investigation having stolen electric current through the
installation and use of unauthorized elibctrical connections or devices. While
the accused pleaded not guilty before the City Court of Batangas City, he did
476
not deny having appropriated electric power. However, there is no evidence
in the record as to the amount or value of the electric power appropriated by
Manuel Opulencia, the criminal informations having been dismissed both by
the City Court and by the Court of First Instance (from which dismissals the
Batangas City electric light system could not have appealed 17) before trial
could begin. Accordingly, the related civil action which has not been waived
expressly or impliedly, should be remanded to the Court of First Instance of
Batangas City for reception of evidence on the amount or value of the electric
power appropriated and converted by Manuel Opulencia and rendition of
judgment conformably with such evidence.
WHEREFORE, the petition for certiorari and mandamus is DENIED. Let the
civil action for related civil liability be remanded to the Court of First Instance
of Batangas City for further proceedings as indicated above. No
pronouncement as to costs.
CARMELL v. TEXAS
CERTIORARI TO THE COURT OF APPEALS OF TEXAS, SECOND
DISTRICT
No. 98-7540. Argued November 30, 1999-Decided May 1,2000
In 1996, petitioner was convicted on 15 counts of committing sexual offenses
against his stepdaughter from 1991 to 1995, when she was 12 to 16 years old.
Before September 1, 1993, Tex. Code Crim. Proc. Ann., Art. 38.07, specified
that a victim's testimony about a sexual offense could not support a conviction
unless corroborated by other evidence or the victim informed another person
of the offense within six months of its occurrence, but that, if a victim was
under 14 at the time of the offense, the victim's testimony alone could support
a conviction. A 1993 amendment allowed the victim's testimony alone to
support a conviction if the victim was under 18. The validity of four of
petitioner's convictions depends on which version of the law applies to him.
Before the Texas Court of Appeals, he argued that the four convictions could
not stand under the pre-1993 version of the law, which was in effect at the
time of his alleged conduct, because they were based solely on the testimony
of the victim, who was not under 14 at the time of the offenses and had not
made a timely outcry. The court held that applying the 1993 amendment
retrospectively did not violate the Ex Post Facto Clause, and the State Court
of Criminal Appeals denied review.
Held: Petitioner's convictions on the counts at issue, insofar as they are not
corroborated by other evidence, cannot be sustained under the Ex Post Facto
Clause. Pp. 521-553.
(a) In Calder v. Bull, 3 Dall. 386, 390, Justice Chase stated that the
proscription against ex post facto laws was derived from English common
law well known to the Framers, and set out four categories of ex post facto
criminal laws: "1st. Every law that makes an action done before the passing
of the law, and which was innocent when done, criminal; and punishes such
action. 2d. Every law that aggravates a crime, or makes it greater than it was,
when committed. 3d. Every law that changes the punishment, and inflicts a
greater punishment, than the law annexed to the crime, when committed. 4th.
Every law that alters the legal rules of evidence, and receives less, or
different, testimony, than the law required at the time of the commission of
the offence, in order to convict the offender." The Court has repeatedly
endorsed this understanding, including the fourth category. Both Justice
Chase and the common-law treatise on which he drew heavily cited
514
Syllabus
the case of Sir John Fenwick as an example of the fourth category. England
charged Fenwick with high treason in the late 17th century, but, under an Act
of Parliament, he could not be convicted without the testimony of two
witnesses. Parliament passed a bill of attainder making the two-witness rule
inapplicable, and Fenwick was convicted on the testimony of only one
witness. Pp. 521-530.
(b) Article 38.07 plainly fits within Calder's fourth category. Requiring only
the victim's testimony to convict, rather than that testimony plus
corroborating evidence, is surely "less testimony required to convict" in any
straightforward sense of those words. Indeed, the circumstances here parallel
477
those of Fenwick's case. That Article 38.07 neither increases the punishment
for, nor changes the elements of, the offense simply shows that the
amendment does not fit within Calder's first or third categories. Pp. 530-531.
(c) The fourth category resonates harmoniously with one of the principal
interests that the Ex Post Facto Clause was designed to serve, fundamental
justice. A law reducing the quantum of evidence required to convict is as
grossly unfair as retrospectively eliminating an element of the offense,
increasing punishment for an existing offense, or lowering the burden of
proof. In each instance, the government refuses, after the fact, to play by its
own rules, altering them in a way that is advantageous only to the State, to
facilitate an easier conviction. There is plainly a fundamental fairness interest
in having the government abide by the rules of law it establishes to govern
the circumstances under which it can deprive a person of his or her liberty or
life. Indeed, Fenwick's case itself illustrates this principle. Pp. 531-534.
(d) None of the reasons that the United States as amicus advances for
abandoning the fourth category is persuasive. It asserts that the fact that
neither Blackstone nor ex post facto clauses in Ratification-era state
constitutions mention the fourth category shows that Justice Chase simply got
it wrong. Accepting this assertion would require the Court to abandon the
third category as well, for it is also not mentioned in any of those sources.
And it does not follow from the fact that Fenwick was convicted by a bill of
attainder that his case cannot also be an example of an ex post facto law. In
fact, all of the specific examples that Justice Chase listed in Calder were
passed as bills of attainder. Nor, as the United States and Texas argue, was
the fourth category effectively cast out in Collins v. Youngblood, 497 U. S.
37, which actually held that it was a mistake to stray beyond Calder's four
categories, not that the fourth category was itself mistaken. Pp. 534-539.
(e) Texas' additional argument that the fourth category is limited to laws that
retrospectively alter the burden of proof is also rejected.
515
The Court's decision in Cummings v. Missouri, 4 Wall. 277, nowhere
suggests that a reversal of the burden of proof is all the fourth category
encompasses; and laws that lower the burden of proof and laws that reduce
the quantum of evidence necessary to meet that burden are indistinguishable
in all meaningful ways relevant to concerns of the Ex Post Facto Clause.
Texas' assertion that Fenwick's case concerns only a reduction in the burden
of proof is based on a mistaken historical premise. And its argument that the
present case is controlled by Hopt v. Territory of Utah, 110 U. S. 574, and
Thompson v. Missouri, 171 U. S. 380, is also unpersuasive. Unlike the
witness competency rules at issue there, Article 38.07 is a sufficiency of the
evidence rule. It does not merely regulate the mode in which the facts
constituting guilt may be placed before the jury, but governs the sufficiency
of those facts for meeting the burden of proof. Indeed, Hopt expressly
distinguished witness competency laws from laws altering the amount or
degree of proof needed for conviction. Moreover, a sufficiency of the
evidence rule resonates with the interests to which the Ex Post Facto Clause
is addressed, in particular the elements of unfairness and injustice in
subverting the presumption of innocence. Pp. 539-547.
963 S. W. 2d 833, reversed and remanded.
STEVENS, J., delivered the opinion of the Court, in which SCALIA,
SOUTER, THOMAS, and BREYER, JJ., joined. GINSBURG, J., filed a
dissenting opinion, in which REHNQUIST, C. J., and O'CONNOR and
KENNEDY, JJ., joined, post, p. 553.
Richard D. Bernstein, by appointment of the Court, 527 U. S. 1051, argued
the cause for petitioner. With him on the briefs were Carter G. Phillips,
Katherine L. Adams, and Paul A. Hemmersbaugh.
John Cornyn, Attorney General of Texas, argued the cause for respondent.
With him on the brief were Andy Taylor, First Assistant Attorney General,
Linda S. Eads, Deputy Attorney General, Gregory S. Coleman, Solicitor
General, and Philip A. Lionberger, Assistant Solicitor General.
Beth S. Brinkmann argued the cause for the United States as amicus curiae
urging affirmance. With her on the brief were Solicitor General Waxman,
Assistant Attorney
516
General Robinson, Deputy Solicitor General Dreeben, and Vicki S. Marani.
*
478
JUSTICE STEVENS delivered the opinion of the Court. An amendment to a
Texas statute that went into effect on September 1, 1993, authorized
conviction of certain sexual offenses on the victim's testimony alone. The
previous statute required the victim's testimony plus other corroborating
evidence to convict the offender. The question presented is whether that
amendment may be applied in a trial for offenses committed before the
amendment's effective date without violating the constitutional prohibition
against state "ex post facto" laws.
I Art. 38.07 (Vernon 1983).1
In 1996, a Texas grand jury returned a is-count indictment charging petitioner
with various sexual offenses against his stepdaughter. The alleged conduct
took place over more than four years, from February 1991 to March 1995,
when the victim was 12 to 16 years old. The conduct ceased after the victim
told her mother what had happened. Petitioner was convicted on alliS counts.
The two most serious counts charged him with aggravated sexual assault, and
petitioner was sentenced to life imprisonment on those two counts.
*Robert P. Marcovitch and Barbara Bergman filed a brief for the National
Association of Criminal Defense Lawyers as amicus curiae urging reversal.
A brief of amici curiae urging affirmance was filed for the State of Kansas et
al. by Carla J. Stovall, Attorney General of Kansas, and Stephen R.
McAllister, State Solicitor, joined by the Attorneys General for their
respective States as follows: Janet Napolitano of Arizona, M. Jane Brady of
Delaware, Robert A. Butterworth of Florida, Jeffrey A. Modisett of Indiana,
Richard P. Ieyoub of Louisiana, Jennifer M. Granholm of Michigan, Joe
Mazurek of Montana, Don Stenberg of Nebraska, Frankie Sue Del Papa of
Nevada, Betty D. Montgomery of Ohio, W A. Drew Edmondson of
Oklahoma, Charles M. Condon of South Carolina, Jan Graham of Utah,
William H. Sorrell of Vermont, and Christine O. Gregoire of Washington.
517
For each of the other 13 offenses (5 counts of sexual assault and 8 counts of
indecency with a child), petitioner received concurrent sentences of 20 years.
Until September 1, 1993, the following statute was in ef-
fect in Texas:
"A conviction under Chapter 21, Section 22.011, or Section 22.021, Penal
Code, is supportable on the uncorroborated testimony of the victim of the
sexual offense if the victim informed any person, other than the defendant, of
the alleged offense within six months after the date on which the offense is
alleged to have occurred. The requirement that the victim inform another
person of an alleged offense does not apply if the victim was younger than 14
years of age at the time of the alleged offense." Tex. Code Crim. Proc. Ann.,
We emphasize three features of this law that are critical to petitioner's case.
The first is the so-called "outcry or corroboration" requirement. Under that
provision, a victim's testimony can support a conviction for the specified
offenses only if (1) that testimony is corroborated by other evidence, or (2)
the victim informed another person of the offense within six months of its
occurrence (an "outcry"). The second feature is the "child victim" provision,
which is an exception to the outcry or corroboration requirement. According
to this provision, if the victim was under 14 years old at the time of the alleged
offense, the outcry or corroboration requirement does not apply and the
victim's testimony alone can support a conviction-even without any
corroborating evidence or outcry. The third feature is that Article 38.07
establishes a suffi-
1 The chapter and sections to which this statute refers cover all the charges
contained in the 15-count indictment against petitioner. Chapter 21 includes
the offense of indecency with a child; § 22.011 covers sexual assault; §
22.021 criminalizes aggravated sexual assault.
518
ciency of the evidence rule respecting the minimum quantum of evidence
necessary to sustain a conviction. If the statute's requirements are not met (for
example, by introducing only the uncorroborated testimony of a 15-year-old
victim who did not make a timely outcry), a defendant cannot be convicted,
and the court must enter a judgment of acquittal. See Leday v. State, 983 S.
W. 2d 713, 725 (Tex. Crim. App. 1998); Scoggan v. State, 799 S. W. 2d 679,
683 (Tex. Crim. App. 1990). Conversely, if the requirements are satisfied, a
conviction, in the words of the statute, "is supportable," and the case may be
479
submitted to the jury and a conviction sustained. See Vickery v. State, 566 S.
W. 2d 624, 626-627 (Tex. Crim. App. 1978); see also Burnham v. State, 821
S. W. 2d 1, 3 (Tex. Ct. App. 1991).2
Texas amended Article 38.07, effective September 1, 1993.
The amendment extended the child victim exception to victims under 18
years old.3 For four of petitioner's counts,
2 Texas courts treat Article 38.07 as a sufficiency of the evidence rule, rather
than as a rule concerning the competency or admissibility of evidence.
Ordinarily, when evidence that should have been excluded is erroneously
admitted against a defendant, the trial court's error is remedied on appeal by
reversing the conviction and remanding for a new trial. See, e. g., Miles v.
State, 918 S. W. 2d 511, 512 (Tex. Crim. App. 1996); Beltran v. State, 728
S. W. 2d 382, 389 (Tex. Crim. App. 1987). A trial court's failure to comply
with the requirements of Article 38.07, by contrast, results not in a remand
for a new trial, but in the reversal of conviction and remand for entry of an
order of acquittal. See, e. g., Scoggan, 799 S. W. 2d, at 683. At oral argument,
Texas agreed that the foregoing is an accurate description of Texas law. See
Tr. of Oral Arg. 28-29, 32, 40-41.
3 The new statute read in full:
"A conviction under Chapter 21, Section 22.011, or Section 22.021, Penal
Code, is supportable on the uncorroborated testimony of the victim of the
sexual offense if the victim informed any person, other than the defendant, of
the alleged offense within one year after the date on which the offense is
alleged to have occurred. The requirement that the victim inform another
person of an alleged offense does not apply if the victim was younger than 18
years of age at the time of the alleged offense." Tex. Code Crim. Proc. Ann.,
Art. 38.07, as amended by Act of May 29, 1993, 73d Leg., Reg.
519
that amendment was critical. The "outcry or corroboration" requirement was
not satisfied for those convictions; 4 they rested solely on the victim's
testimony. Accordingly, the verdicts on those four counts stand or fall
depending on whether the child victim exception applies. Under the old law,
the exception would not apply, because the victim was more than 14 years
old at the time of the alleged offenses. Under the new law, the exception
would apply, because the victim was under 18 years old at that time. In short,
the validity of four of petitioner's convictions depends on whether the old or
new law applies to his case, which, in turn, depends on whether the Ex Post
Facto Clause prohibits the application of the new version of Article 38.07 to
his case.
As mentioned, only 4 of petitioner's 15 total convictions are implicated by the
amendment to Article 38.07; the other 11 counts-including the 2 convictions
for which petitioner received life sentences-are uncontested. Six counts are
uncontested because they were committed when the victim was under 14
years old, so his convictions stand even under the old law; the other five
uncontested counts were committed after the new Texas law went into effect,
so there could be no ex post facto claim as to those convictions. See
Sess., ch. 900, § 12.01, 1993 Tex. Gen. Laws 3765, 3766, and Act of May
10, 1993, 73d Leg., Reg. Sess., ch. 200, § 1, 1993 Tex. Gen. Laws 387, 388.
4 The victim did not make an outcry until March 1995, more than six months
after the alleged offenses. Although the 1993 amendment to Article 38.07
extended the outcry period from six months to one year, see n. 3, supra, the
victim's outcry did not come within that time period either. Accordingly, that
change in the outcry provision is immaterial to this case.
The State argues that there is evidence corroborating the victim's testimony,
so it does not help petitioner even if the old law applies. See Brief for
Respondent 4, n. 2. Before the state court, however, petitioner argued that
"there was nothing to corroborate [the victim's] version of events," 963 S. W.
2d 833, 836 (Tex. Ct. App. 1998), and that court accepted the contention as
correct for the purposes of its decision. We do the same here.
520
Weaver v. Graham, 450 U. S. 24, 31 (1981) ("The critical question [for an ex
post facto violation] is whether the law changes the legal consequences of
acts completed before its effective date"). What are at stake, then, are the four
convictions on counts 7 through 10 for offenses committed between June
1992 and July 1993 when the victim was 14 or 15 years old and the new
Texas law was not in effect.
480
Petitioner appealed his four convictions to the Court of Appeals for the
Second District of Texas in Fort Worth. See 963 S. W. 2d 833 (1998).
Petitioner argued that under the pre-1993 version of Article 38.07, which was
the law in effect at the time of his alleged conduct, those convictions could
not stand, because they were based solely on the victim's testimony, and the
victim was not under 14 years old at the time of the offenses, nor had she
made a timely outcry.
The Court of Appeals rejected petitioner's argument.
Under the 1993 amendment to Article 38.07, the court observed, petitioner
could be convicted on the victim's testimony alone because she was under 18
years old at the time of the offenses. The court held that applying this
amendment retrospectively to petitioner's case did not violate the Ex Post
Facto Clause:
"The statute as amended does not increase the punishment nor change the
elements of the offense that the State must prove. It merely 'removes existing
restrictions upon the competency of certain classes of persons as witnesses'
and is, thus, a rule of procedure. Hopt v. Utah, 110 U. S. 574, 590 ... (1884)."
Id., at 836.
The Texas Court of Criminal Appeals denied discretionary review. Because
the question whether the retrospective application of a statute repealing a
corroboration requirement has given rise to conflicting decisions,5 we
granted peti-
5 Compare Utah v. Schreuder, 726 P. 2d 1215 (Utah 1986) (finding ex post
facto violation); Virgin Islands v. Civil, 591 F.2d 255 (CA3 1979) (same),
with New York v. Hudy, 73 N. Y. 2d 40, 535 N. E. 2d 250 (1988) (no ex post
521
tioner's pro se petition for certiorari, 527 U. S. 1002 (1999), and appointed
counsel, id., at 1051.
II
To prohibit legislative Acts "contrary to the first principles of the social
compact and to every principle of sound legislation," 6 the Framers included
provisions they considered to be "perhaps greater securities to liberty and
republicanism than any [the Constitution] contains." 7 The provisions
declare:
"No State shall ... pass any Bill of Attainder, ex post facto Law, or Law
impairing the Obligation of Contracts .... " u. S. Const., Art. I, § 10.8
The proscription against ex post facto laws "necessarily requires some
explanation; for, naked and without explanation, it is unintelligible, and
means nothing." Calder v. Bull, 3 Dall. 386, 390 (1798) (Chase, J.). In Calder
v. Bull, Justice Chase stated that the necessary explanation is derived from
English common law well known to the Framers: "The expressions 'ex post
facto laws,' are technical, they had been in use long before the Revolution,
and had acquired an appropriate meaning, by Legislators, Lawyers, and
Authors." Id., at 391; see also id., at 389 ("The prohibition ... very probably
arose from the knowledge, that the Parliament of Great Britain claimed and
exercised a power to pass such laws ... "); id., at 396 (Paterson, J.).
Specifically, the
facto violation); Murphy v. Sowders, 801 F.2d 205 (CA6 1986) (same);
Murphy v. Kentucky, 652 S. W. 2d 69 (Ky. 1983) (same). See also Idaho v.
Byers, 102 Idaho 159, 627 P. 2d 788 (1981) (judicial change in witness
corroboration rule may not be applied retroactively); Bowyer v. United
States, 422 A. 2d 973 (DC 1980) (same).
6 The Federalist No. 44, p. 282 (C. Rossiter ed. 1961) (J. Madison). 7Id., No.
84, at 511 (A. Hamilton).
8 Article I, § 9, cl. 3, has a similar prohibition applicable to Congress:
"No Bill of Attainder or ex post facto Law shall be passed."
522
phrase "ex post facto " referred only to certain types of criminal laws. Justice
Chase cataloged those types as follows:
"I will state what laws I consider ex post facto laws, within the words and the
intent of the prohibition. 1st. Every law that makes an action done before the
passing of the law, and which was innocent when done, criminal; and
481
punishes such action. 2d. Every law that aggravates a crime, or makes it
greater than it was, when committed. 3d. Every law that changes the
punishment, and inflicts a greater punishment, than the law annexed to the
crime, when committed. 4th. Every law that alters the legal rules of evidence,
and receives less, or different, testimony, than the law required at the time of
the commission of the offence, in order to convict the offender." Id., at 390
(emphasis in original).9
It is the fourth category that is at issue in petitioner's case.
The common-law understanding explained by Justice Chase drew heavily
upon the authoritative exposition of one of the great scholars of the common
law, Richard Wooddeson. See id., at 391 (noting reliance on Wooddeson's
treatise).l0
9 Elsewhere in his opinion, Justice Chase described his taxonomy of ex post
facto laws as follows:
"Sometimes [ex post facto laws] respected the crime, by declaring acts to be
treason, which were not treason, when committed; at other times, they
violated the rules of evidence (to supply a deficiency of legal proof) by
admitting one witness, when the existing law required two; by receiving
evidence without oath; or the oath of the wife against the husband; or other
testimony, which the courts of justice would not admit; at other times they
inflicted punishments, where the party was not, by law, liable to any
punishment; and in other cases, they inflicted greater punishment, than the
law annexed to the offence." 3 Dall., at 389 (emphasis deleted).
lOWooddeson was well known for his treatise on British common law, A
Systematical View of the Laws of England, which collected various lectures
he delivered as the Vinerian Professor and Fellow of Magdalen College at
Oxford. Though not as well known today, Justice Chase noted
523
Wooddeson's classification divided ex post facto laws into three general
categories: those respecting the crimes themselves; those respecting the legal
rules of evidence; and those affecting punishment (which he further
subdivided into laws creating a punishment and those making an existing
punishment more severe)Y See 2 R. Wooddeson, A Systematical View of the
Laws of England 625-640 (1792) (Lecture 41) (hereinafter Wooddeson).
Those three categories (the last of which was further subdivided) correlate
precisely to Calder's four categories. Justice Chase also used language in
describing the categories that corresponds directly to Wooddeson's
phrasing.12 Finally, in four
that Wooddeson was William Blackstone's successor, 3 Dall., at 391
(Blackstone held the Vinerian chair at Oxford until 1766), and his treatise
was repeatedly cited in the years following the ratification by lawyers
appearing before this Court and by the Court itself. See, e. g., Trustees of
Dartmouth College v. Woodward, 4 Wheat. 518, 562-563 (1819) (argument
of Daniel Webster); id., at 668, 676 (Story, J.); Town of Pawlet v. Clark, 9
Cranch 292, 326, 329 (1815) (Story, J.); The Nereide, 9 Cranch 388, 449
(1815) (Story, J.); Cooper v. Telfair, 4 Dall. 14,16-17 (1800) (arguments of
Edward Tilghman, Jared Ingersoll, and Alexander Dallas); Hannum v. Spear,
2 Dall. 291 (Err. App. Pa. 1795); Glass v. Sloop Betsey, 3 Dall. 6, 8 (1794).
11 Specifically, in the former category Wooddeson included those laws that
make "some innovation, or creat[e] some forfeiture or disability, not incurred
in the ordinary course of law." 2 R. Wooddeson, A Systematical View of the
Laws of England 638 (1792). In the latter category, he placed those laws that
"imposed a sentence more severe than could have been awarded by the
inferior courts." Id., at 639. As examples of the former category Wooddeson
cited the bills passed by Parliament that banished Lord Clarendon in 1669
and Bishop Atterbury in 1723. Those punishments were considered
"innovation[s] ... not incurred in the ordinary course of law" because
banishment, at those times, was simply not a form of penalty that could be
imposed by the courts. Ibid. See 11 W. Holdsworth, A History of English
Law 569 (1938); Craies, The Compulsion of Subjects to Leave the Realm, 6
L. Q. Rev. 388, 396 (1890).
12 See 2 Wooddeson 631 (referring to laws that "respec[t] the crime,
determining those things to be treason, which by no prior law or adjudication
could be or had been so declared"); id., at 633-634 (referring to laws
"respecting ... the rules of evidence [rectifying] a deficiency of
524
footnotes in Justice Chase's opinion, he listed examples of various Acts of
Parliament illustrating each of the four categories. See 3 Dall., at 389, nn. *,
482
t, :!:, 11.13 Each of these examples is exactly the same as the ones
Wooddeson himself used in his treatise. See 2 Wooddeson 629 (case of the
Earl of Strafford); id., at 634 (case of Sir John Fenwick); id., at 638
(banishments of Lord Clarendon and of Bishop Atterbury); id., at 639
(Coventry Act).
Calder's four categories, which embraced Wooddeson's formulation, were, in
turn, soon embraced by contemporary scholars. Joseph Story, for example, in
writing on the Ex Post Facto Clause, stated:
"The general interpretation has been, and is, ... that the prohibition reaches
every law, whereby an act is declared a crime, and made punishable as such,
when it was not a crime, when done; or whereby the act, if a crime, is
aggravated in enormity, or punishment; or whereby different, or less
evidence, is required to convict an offender, than was required, when the act
was committed." 3 Commentaries on the Constitution of the United States §
1339, p. 212 (1833).
James Kent concurred in this understanding of the Clause: "[T]he words ex
post facto laws were technical expressions, and meant every law that made
an act done before the passing of the law, and which was innocent when done,
criminal; or which aggravated a crime, and
legal proof" created when only one witness was available but "a statute then
lately made requiring two witnesses" had been in effect); id., at 638
(describing "acts of parliament, which principally affect the punishment,
making therein some innovation, or creating some forfeiture or disability, not
incurred in the ordinary course of law"); id., at 639 (referring to instances
where "the legislature ... imposed a sentence more severe than could have
been awarded by the inferior courts"). Cf. n. 9, supra.
13 The instances cited were the case of the Earl of Strafford, the case of Sir
John Fenwick, the banishments of Lord Clarendon and of Bishop Atterbury,
and the Coventry Act.
525
made it greater than it was when committed; or which changed the
punishment, and inflicted a greater punishment than the law annexed to the
crime when committed; or which altered the legal rules of evidence, and
received less or different testimony than the law required at the time of the
commission of the offence, in order to convict the offender." 1 Commentaries
on American Law 408 (3d ed. 1836) (Lecture 19).
This Court, moreover, has repeatedly endorsed this understanding, including,
in particular, the fourth category (sometimes quoting Chase's words verbatim,
sometimes simply paraphrasing). See Lynce v. Mathis, 519 U. S. 433, 441,
n. 13 (1997); Dobbert v. Florida, 432 U. S. 282, 293 (1977); Malloy v. South
Carolina, 237 U. S. 180, 183-184 (1915); Mallett v. North Carolina, 181 U.
S. 589, 593-594 (1901); Thompson v. Missouri, 171 U. S. 380, 382, 387
(1898); Hawker v. New York, 170 U. S. 189, 201 (1898) (Harlan, J.,
dissenting); Gibson v. Mississippi, 162 U. S. 565, 589-590 (1896); Duncan
v. Missouri, 152 U. S. 377, 382 (1894); Hopt v. Territory of Utah, 110 U. S.
574, 589 (1884); Kring v. Missouri, 107 U. S. 221, 228 (1883), overruled on
other grounds, Collins v. Youngblood, 497 U. S. 37 (1990); Gut v. State, 9
Wall. 35, 38 (1870); Ex parte Garland, 4 Wall. 333, 390-391 (1867) (Miller,
J., dissenting); Cummings v. Missouri, 4 Wall. 277, 325-326, 328 (1867).
State courts, too, in the years following Calder, adopted Justice Chase's four-
category formulation. See Boston & Gunby v. Cummins, 16 Ga. 102, 106
(1854); Martindale v. Moore, 3 Blackf. 275, 277 (Ind. 1833); Davis v.
Ballard, 24 Ky. 563, 578 (1829); Strong v. State, 1 Blackf. 193,196 (Ind.
1822); Dickinson v. Dickinson, 7 N. C. 327, 330 (1819); see also Woart v.
Winnick, 3 N. H. 473, 475 (Super. Ct. 1826).14
14 The reception given the four categories contrasts with that given to
Calder's actual holding-that the Ex Post Facto Clause applies only to criminal
laws, not to civil laws. The early criticism levied against that holding, see, e.
g., Satterlee v. Matthewson, 2 Pet. 380,416,681-687 (App. I)
526
III
As mentioned earlier, Justice Chase and Wooddeson both cited several
examples of ex post facto laws, and, in particular, cited the case of Sir John
Fenwick as an example of the fourth category. To better understand the type
of law that falls within that category, then, we turn to Fenwick's case for
preliminary guidance.
483
Those who remained loyal to James II after he was deposed by King William
III in the Revolution of 1688 thought their opportunity for restoration had
arrived in 1695, following the death of Queen Mary. 9 T. Macaulay, History
of England 31 (1899) (hereinafter Macaulay). Sir John Fenwick, along with
other Jacobite plotters including George Porter and Cardell Goodman, began
concocting their scheme in the spring of that year, and over the next several
months the original circle of conspirators expanded in number. Id., at 32, 47-
48, 109-110. Before the conspirators could carry out their machinations,
however, three members of the group disclosed the plot to William. Id., at
122-125. One by one, the participants were arrested, tried, and convicted of
treason. Id., at 127-142. Fenwick, though, remained in hiding while the rest
of the cabal was brought to justice. During that time, the trials of his
accomplices revealed that there were only two witnesses among them who
could prove Fenwick's guilt, Porter and Goodman. Id., at 170171. As luck
would have it, an act of Parliament proclaimed that two witnesses were
necessary to convict a person of high treason. See An Act for Regulateing of
Tryals in
(1829) (Johnson, J., concurring); Stoddart v. Smith, 5 Binn. 355, 370 (Pa.
1812) (Brackenridge, J.), was absent with respect to the four categories.
Although Justice Chase's opinion may have somewhat dampened the appetite
for further debate in the courts, that consideration would not necessarily have
an effect on scholarly discourse, nor does it explain why judges would be
reluctant to express criticism of the four categories, yet harbor no
compunction when it came to criticizing the actual holding of the Court.
527
Cases of Treason and Misprision of Treason, 7 & 8 Will. III, ch. 3, § 2 (1695-
1696), in 7 Statutes of the Realm 6 (reprint 1963).15 Thus, Fenwick knew
that if he could induce either Porter or Goodman to abscond, the case against
him would vanish. 9 Macaulay 171.
Fenwick first tried his hand with Porter. Fenwick sent his agent to attempt a
bribe, which Porter initially accepted in exchange for leaving for France. But
then Porter simply pocketed the bribe, turned in Fenwick's agent (who was
promptly tried, convicted, and pilloried), and proceeded to testify against
Fenwick (along with Goodman) before a grand jury. Id., at 171-173. When
the grand jury returned an indictment for high treason, Fenwick attempted to
flee the country himself, but was apprehended and brought before the Lord
Justices in London. Sensing an impending conviction, Fenwick threw himself
on the mercy of the court and offered to disclose all he knew of the Jacobite
plotting, aware all the while that the judges would soon leave the city for their
circuits, and a delay would thus buy him a few weeks time. Id., at 173-174.
Fenwick was granted time to write up his confession, but rather than betray
true Jacobites, he concocted a confession calculated to accuse those loyal to
William, hoping to introduce embarrassment and perhaps a measure of
instability to the current regime. Id., at 175-178. William, however, at once
perceived Fenwick's design and rejected the confession, along with any
expectation of mercy. Id., at 178-
15 That Act read, in relevant part:
"And bee it further enacted That ... noe Person or Persons whatsoever shall
bee indicted tryed or attainted of High Treason ... but by and upon the Oaths
and Testimony of Two lawfull Witnesses either both of them to the same
Overtact or one of them to one and another of them to another Overtact of the
same Treason unlesse the Party indicted and arraigned or tryed shall willingly
without violence in open Court confesse the same or shall stand Mute or
refuse to plead or in cases of High Treason shall peremptorily challenge
above the Number of Thirty five of the Jury .... "
528
180, 194. Though his contrived ploy for leniency was unsuccessful in that
respect, it proved successful in another: during the delay, Fenwick's wife had
succeeded in bribing Goodman, the other witness against him, to leave the
country. Id., at 194-195.16
Without a second witness, Fenwick could not be convicted of high treason
under the statute mentioned earlier. For all his plotting, however, Fenwick
was not to escape. After Goodman's absence was discovered, the House of
Commons met and introduced a bill of attainder against Fenwick to correct
the situation produced by the combination of bribery and the two-witness law.
Id., at 198-199. A lengthy debate ensued, during which the Members
repeatedly discussed whether the two-witness rule should applyP Ultimately,
the bill passed by a close vote of 189 to 156, id., at 210, notwithstanding the
objections of Members who (foreshadowing Calder's fourth category)
complained that Fenwick was being attainted "upon less Evidence" than
484

16 This time, Fenwick's wife handled the bribe with a deftness lacking in the
first attempt. Not only was Goodman (popularly called "Scum Goodman,"
see 9 Macaulay 32) an easier target, but Lady Fenwick's agent gave Goodman
an offer he couldn't refuse: abscond and be rewarded, or have his throat cut
on the spot. Id., at 195. Goodman's instinct for selfpreservation prevailed, and
the agent never parted company with him until they both safely reached
France. Ibid.
17 See, e. g., The Proceedings Against Sir John Fenwick Upon a Bill of
Attainder for High Treason 40 (1702) (hereinafter Proceedings) (" 'Tis
Extraordinary that you bring Sir John Fenwick, here to Answer for Trea- son,
when ... you have but one Witness to that Treason ... Treason be not Treason
unless it be proved by two Witnesses ... "); id., at 103 ("It hath been objected,
That there ought to be two Witnesses, by the late Statute"); id., at 227 ("I do
take it to be part of the Law of the Land, That no Man should be condemned
for Treason without two Witnesses"); id., at 256-257 ("[I]f we sit here to
Judge, we sit to Judge him according to the Law of England .... Will you set
up a Judgment ... upon one Witness, when the Law says you shall have two;
and after all, say 'tis a reasonable Proceeding?").
529
would be required under the two-witness law,18 and despite the repeated
importuning against the passing of an ex post facto law.19 The bill then was
taken up and passed by the
18 See, e. g., id., at 270 ("I believe this House can't take away any Persons
Life upon less Evidence than Inferiour Courts could do"); id., at 288 ("Shall
we that are the Supream Authority ... go upon less Evidence to satisfie
ourselves of Sir John Fenwick's Guilt, than other Courts?"); id., at 317 ("I
can't satisfie my self in my Conscience, and should think some misfortune
might follow me and my Posterity, if I passed Sentence upon Sir John
Fenwick's Life, upon less Evidence than the Law of England requires"); id.,
at 342 ("But the Liberty of the People of England is very much concerned in
the Revocation of that Act; and none of the Arguments that have been used
can Convince me, That I ought to give Judgment upon less Evidence than is
required by that Act").
19 See, e. g., id., at 145 ("I can't say, but those Persons, who in the last
Sessions of Parliament, were Imprisoned by an Act Ex Post Facto, and
subsequent to the Fact Complained of, yet when it was passed into a Law,
they were Legally Detained: but, I hope, I may take notice of their Case, as
some kind of Reason against this, to the end that those Laws may not grow
familiar, that they may not easily be obtained; because Precedents generally
grow, and as that Law Ex Post Facto, extended to Liberty, so this extends to
Life ... "); id., at 152-153 ("It would be too much at once to make a subsequent
Law to condemn a Man to Death .... I am afraid none are safe if that be
admitted, That a subsequent Law may take away a Man's Life ... " (emphasis
added)); id., at 197 ("Sir, It hath been urged to you, of what ill Consequence
it would be, and how much Injustice to make a Law to Punish a Man, Ex post
Facto ... "); id., at 256 ("But how shall they Judge? By the Laws in being ...
That you may Judge that to be Treason in this House, that was not so by the
Law before. So that give me leave to say, therefore there is no such Power
reserved to the Parliament, to Declare any thing Treason that is not Treason
before" (emphasis added)); id., at 282-283 ("[F]or according to your Law, no
Man shall be declared Guilty of Treason, unless there be two Witnesses
against him .... But how can a Man satisfie his own Conscience, to Condemn
any Man by a Law that is subsequent to the Fact? For that is the Case ... "
(emphasis added)); id., at 305 ("I think I may confidently affirm, there is not
so much as one Precedent where a Person ... was taken away from his Tryal,
... and cut off extrajudicially by an Act made on purpose, Ex post Facto"); id.,
at 331-332 ("Those Acts that have been made since, are made certainly to
provide, That in no Case whatsoever, a Man should be so much as accused
without two Witnesses
530
House of Lords, and the King gave his assent. Id., at 214225; see also An Act
to Attaint Sir John Fenwick Baronet of High Treason, 8 Will. III, ch. 4 (1696).
On January 28, 1697, Sir John Fenwick was beheaded. 9 Macaulay 226-227.
IV
Article 38.07 is unquestionably a law "that alters the legal rules of evidence,
and receives less, or different, testimony, than the law required at the time of
the commission of the offence, in order to convict the offender." Under the
law in effect at the time the acts were committed, the prosecution's case was
legally insufficient and petitioner was entitled to a judgment of acquittal,
485
unless the State could produce both the victim's testimony and corroborative
evidence. The amended law, however, changed the quantum of evidence
necessary to sustain a conviction; under the new law, petitioner could be (and
was) convicted on the victim's testimony alone, without any corroborating
evidence. Under any commonsense understanding of Calder's fourth
category, Article 38.07 plainly fits. Requiring only the victim's testimony to
convict, rather than the victim's testimony plus other corroborating evidence
is surely "less testimony required to convict" in any straightforward sense of
those words.
Indeed, the circumstances of petitioner's case parallel those of Fenwick's case
300 years earlier. Just as the relevant law in Fenwick's case required more
than one witness' testimony to support a conviction (namely, the testimony of
a second witness), Texas' old version of Article 38.07 required more than the
victim's testimony alone to sustain a conviction (namely, other corroborating
evidence).2o And just like Fen-
of the Treason .... Then this is a Law; ex post facto, and that hath been always
condemned ... ").
20 Texas argues that the corroborative evidence required by Article 38.07
"need not be more or different from the victim's testimony; it may be entirely
cumulative of the victim's testimony." Brief for Respondent 19;
531
wick's bill of attainder, which permitted the House of Commons to convict
him with less evidence than was otherwise required, Texas' retrospective
application of the amendment to Article 38.07 permitted petitioner to be
convicted with less than the previously required quantum of evidence. It is
true, of course, as the Texas Court of Appeals observed, that "[t]he statute as
amended does not increase the punishment nor change the elements of the
offense that the State must prove." 963 S. W. 2d, at 836. But that observation
simply demonstrates that the amendment does not fit within Calder's first and
third categories. Likewise, the dissent's remark that "Article 38.07 does not
establish an element of the offense," post, at 559, only reveals that the law
does not come within Calder's first category. The fact that the amendment
authorizes a conviction on less evidence than previously required, however,
brings it squarely within the fourth category.
V
The fourth category, so understood, resonates harmoniously with one of the
principal interests that the Ex Post Facto Clause was designed to serve,
fundamental justice.21
see also post, at 561, n. 6 (dissenting opinion). The trouble with that argument
is that the same was true in Fenwick's case. The relevant statute there required
the "Testimony of Two lawfull Witnesses either both of them to the same
Overtact or one of them to one and another of them to another Overtact of the
same Treason." See n. 15, supra (emphasis added).
21 The Clause is, of course, also aimed at other concerns, "namely, that
legislative enactments give fair warning of their effect and permit individuals
to rely on their meaning until explicitly changed," Miller v. Florida, 482 U.
S. 423, 430 (1987) (internal quotation marks omitted), and at reinforcing the
separation of powers, see Weaver v. Graham, 450 U. S. 24, 29, n. 10 (1981).
But those are not its only aims, and the absence of a reliance interest is not an
argument in favor of abandoning the category itself. If it were, the same
conclusion would follow for Calder's third category (increases in
punishment), as there are few, if any, reliance interests in planning future
criminal activities based on the expectation of less severe repercussions.
532
Justice Chase viewed all ex post facto laws as "manifestly unjust and
oppressive." Calder, 3 Dall., at 391. Likewise, Blackstone condemned them
as "cruel and unjust," 1 Commentaries on the Laws of England 46 (1765), as
did every state constitution with a similar clause, see n. 25, infra. As Justice
Washington explained in characterizing "[t]he injustice and tyranny" of ex
post facto laws:
"Why did the authors of the constitution turn their attention to this subject,
which, at the first blush, would appear to be peculiarly fit to be left to the
discretion of those who have the police and good government of the State
under their management and control? The only answer to be given is, because
laws of this character are oppressive, unjust, and tyrannical; and, as such, are
condemned by the universal sentence of civilized man." Ogden v. Saunders,
12 Wheat. 213, 266 (1827).
486
In short, the Ex Post Facto Clause was designed as "an additional bulwark in
favour of the personal security of the subject," Calder, 3 Dall., at 390 (Chase,
J.), to protect against "the favorite and most formidable instruments of
tyranny," The Federalist No. 84, p. 512 (C. Rossiter ed. 1961) (A. Hamilton),
that were "often used to effect the most detestable purposes," Calder, 3 Dall.,
at 396 (Paterson, J.).
Calder's fourth category addresses this concern precisely.
A law reducing the quantum of evidence required to convict an offender is as
grossly unfair as, say, retrospectively eliminating an element of the offense,
increasing the punishment for an existing offense, or lowering the burden of
proof (see infra, at 540-544). In each of these instances, the government
subverts the presumption of innocence by reducing the number of elements it
must prove to overcome that presumption; by threatening such severe
punishment so as to induce a plea to a lesser offense or a lower sentence; or
by making it easier to meet the threshold for overcoming the presumption.
Reducing the quantum of evidence necessary
533
to meet the burden of proof is simply another way of achieving the same
end.22 All of these legislative changes, in a sense, are mirror images of one
another. In each instance, the government refuses, after the fact, to play by its
own rules, altering them in a way that is advantageous only to the State, to
facilitate an easier conviction. There is plainly a fundamental fairness
interest, even apart from any claim of reliance or notice, in having the
government abide by the rules of law it establishes to govern the
circumstances under which it can deprive a person of his or her liberty or
life.23
Indeed, Fenwick's case is itself an illustration of this principle. Fenwick could
claim no credible reliance interest in the two-witness statute, as he could not
possibly have known that only two of his fellow conspirators would be able
to testify as to his guilt, nor that he would be successful in bribing one of them
to leave the country. Nevertheless, Parliament had enacted the two-witness
law, and there was
22 Lowering the burden of persuasion, to be sure, is not precisely the same
thing as lowering (as a matter of law) the amount of evidence necessary to
meet that burden. But it does not follow, as the dissent appears to think, that
only the former subverts the presumption of innocence. Post, at 560-561
(opinion of GINSBURG, J.).
23 We do not mean to say that every rule that has an effect on whether a
defendant can be convicted implicates the Ex Post Facto Clause. Ordinary
rules of evidence, for example, do not violate the Clause. See infra, at 543-
547. Rules of that nature are ordinarily evenhanded, in the sense that they
may benefit either the State or the defendant in any given case. More
crucially, such rules, by simply permitting evidence to be admitted at trial, do
not at all subvert the presumption of innocence, because they do not concern
whether the admissible evidence is sufficient to overcome the presumption.
Therefore, to the extent one may consider changes to such laws as "unfair" or
"unjust," they do not implicate the same kind of unfairness implicated by
changes in rules setting forth a sufficiency of the evidence standard.
Moreover, while the principle of unfairness helps explain and shape the
Clause's scope, it is not a doctrine unto itself, invalidating laws under the Ex
Post Facto Clause by its own force. Cf. W S. Kirkpatrick & Co. v.
Environmental Tectonics Corp., Int'l, 493 U. S. 400, 409 (1990).
534
a profound unfairness in Parliament's retrospectively altering the very rules it
had established, simply because those rules prevented the conviction of the
traitor-notwithstanding the fact that Fenwick could not truly claim to be
"innocent." (At least one historian has concluded that his guilt was clearly
established, see 9 Macaulay 203-204, and the debate in the House of
Commons bears out that conclusion, see, e. g., Proceedings 219, 230, 246,
265, 289.) Moreover, the pertinent rule altered in Fenwick's case went
directly to the general issue of guilt, lowering the minimum quantum of
evidence required to obtain a conviction. The Framers, quite clearly, viewed
such maneuvers as grossly unfair, and adopted the Ex Post Facto Clause
accordingly.24
VI
The United States as amicus asks us to revisit the accuracy of the fourth
category as an original matter. None of its reasons for abandoning the
category is persuasive.
487
24 Fenwick's case also illustrates how such ex post facto laws can operate
similarly to retrospective increases in punishment by adding to the coercive
pressure to accept a plea bargain. When Fenwick was first brought before the
Lord Justices, he was given an opportunity to make a confession to the King.
Though he squandered the opportunity by authoring a plain contrivance,
Fenwick could have reasonably assumed that a sincere confession would
have been rewarded with leniency-the functional equivalent of a plea bargain.
See 9 Macaulay 125. When the bill of attainder was taken up by the House of
Commons, there is evidence that this was done to pressure Fenwick into
making the honest confession he had failed to make before. See, e. g.,
Proceedings 197 (" 'Tis a Matter of Blood, 'tis true, but I do not aim at this
Gentleman's Life in it ... all I Propose by it, is to get his Confession"); id., at
235 ("[W]e do not aim at Sir John Fenwick's Blood, (God forbid we should)
but at his Confession"); id., at 255 ("Why, give me leave to say to you, 'tis a
new way not known in England, that you will Hang a Man unless he will
Confess or give Evidence ... "). And before the House of Lords, Fenwick was
explicitly threatened that unless he confessed, they would proceed to consider
the bill against him. 9 Macaulay 218.
535
First, pointing to Blackstone's Commentaries and a handful of state
constitutions cited by Justice Chase in Calder, see 3 Dall., at 391-392, the
United States asserts that Justice Chase simply got it wrong with his four
categories. Blackstone wrote: "There is still a more unreasonable method than
this, which is called making of laws ex post facto; when after an action is
committed, the legislator then for the first time declares it to have been a
crime, and inflicts a punishment upon the person who has committed it .... "
1 Commentaries on the Laws of England, at 46 (emphasis in original). The
ex post facto clauses in Ratification-era state constitutions to which Justice
Chase cited are of a piece.25 The United States directs our attention to the
fact that none of these definitions mentions Justice Chase's fourth category.
All of these sources, though, are perfectly consistent with Justice Chase's first
category of ex post facto laws. None of them is incompatible with his four-
category formulation, unless we accept the premise that Blackstone and the
state constitutions purported to express the exclusive definition of an ex post
facto law. Yet none appears to do so on its face. And if those definitions were
read as exclusive, the United
25 Massachusetts' clause read as follows: "Laws made to punish for actions
done before the existence of such laws, and which have not been declared
crimes by preceding laws, are unjust, oppressive, and inconsistent with the
fundamental principles of a free government." Constitution of Massachusetts,
Pt. I, Art. 24 (1780), in 5 W. Swindler, Sources and Documents of United
States Constitutions 95 (1975) (hereinafter Swindler). The Constitutions of
Maryland and North Carolina used identical words:
"That retrospective laws, punishing facts committed before the existence of
such laws, and by them only declared criminal, are oppressive, unjust, and
incompatible with liberty; wherefore no ex post facto law ought to be made."
Maryland Constitution, A Declaration of Rights, Art. 15 (1776), in 4 Swindler
373; North Carolina Constitution, A Declaration of Rights, Art. 24 (1776), in
7 Swindler 403. And Delaware's Declaration of Rights and Fundamental
Rules, Art. 11 (1776), in 2 Swindler 198, stated, "That retrospective Laws,
punishing Offenses committed before the Existence of such Laws, are
oppressive and unjust and ought not to be made."
536
States' argument would run up against a more troubling obstacle, namely, that
neither Blackstone nor the state constitutions mention Calder's third category
either (increases in punishment). The United States, in effect, asks us to
abandon two of Calder's categories based on the unsupported supposition that
the Blackstonian and state constitutional definitions were exclusive, and upon
the implicit premise that neither Wooddeson, Chase, Story, Kent, nor
subsequent courts (state and federal) realized that was so. We think that
simply stating the nature of the request demonstrates why it must be
rejected.26
Next, the United States contends Justice Chase was mistaken to cite the case
of Sir John Fenwick as an example of an ex post facto law, because it was
actually a bill of attainder. Fenwick was indeed convicted by a bill of
attainder, but it does not follow that his case cannot also be an example of an
ex post facto law. Clearly, Wooddeson thought it was, see 2 Wooddeson 641,
as did the House of Commons, see n. 19, supra, and we are aware of no rule
stating that a single historical event can explain one, but not two,
constitutional Clauses (actually, three Clauses, see Art. III, § 3 (Treason
Clause)). We think the United States' observation simply underscores the
kinship between bills of attainder and ex post facto laws, see Nixon v.
488
Administrator of General Services, 433 U. S. 425, 468, n. 30 (1977); United
States v. Lovett, 328 U. S. 303, 323 (1946) (Frankfurter, J., concurring); see
also Z. Chafee, Three Human Rights in the Constitution of 1787, pp. 92-93
(1956) (herein-
26 Nor does it help much to cite Justice Iredell's statement that ex post facto
laws include those that "inflict a punishment for any act, which was innocent
at the time it was committed; [or] increase the degree of punishment
previously denounced for any specific offence," Calder v. Bull, 3 Dall. 386,
400 (1798). The argument still requires us to believe that Justice Iredell-and
only Justice Iredell-got it right, and that all other authorities (now including
Blackstone and the state constitutions) somehow missed the point.
537
after Chafee), which may explain why the Framers twice placed their
respective prohibitions adjacent to one another. And if the United States
means to argue that category four should be abandoned because its illustrative
example was a bill of attainder, this would prove entirely too much, because
all of the specific examples listed by Justice Chase were passed as bills of
attainder.27
Finally, both Texas and the United States argue that we have already
effectively cast out the fourth category in Collins v. Youngblood, 497 U. S.
37 (1990). Collins held no such thing. That case began its discussion of the
Ex Post Facto Clause by quoting verbatim Justice Chase's "now familiar
opinion in Calder" and his four-category definition. Id., at 41-42. After noting
that "[e]arly opinions of the Court portrayed this as an exclusive definition of
ex post facto laws," id., at 42, the Court then quoted from our opinion in
Beazell v. Ohio, 269 U. S. 167 (1925):
"'It is settled, by decisions of this Court so well known that their citation may
be dispensed with, that any statute which punishes as a crime an act
previously committed, which was innocent when done; which makes more
burdensome the punishment for a crime, after its commission, or which
deprives one charged with crime of any defense available according to law at
the time when the act was committed, is prohibited as ex post
27 See An Act for the Attainder of Thomas Earle of Strafford of High
Treason, 16 Car. I, ch. 38 (1640), in 5 Statutes of the Realm 177 (reprint
1963); An Act for Banishing and Disenabling the Earl of Clarendon, 19 & 20
Car. II, ch. 2 (1667-1668), in 5 Statutes of the Realm, at 628; An Act to Inflict
Pains and Penalties on Francis (Atterbury) Lord Bishop of Rochester, 9 Geo.
I, ch. 17 (1722); An Act to Prevent Malicious Maiming and Wounding
(Coventry Act), 22 & 23 Car. II, ch. 1 (1670). While the bills against the Earl
of Clarendon and Bishop Atterbury appear to be bills of pains and penalties,
see Chafee 117, 136, as does the Coventry Act, see 2 Wooddeson 638-639,
those are simply a subspecies of bills of attainder, the only difference being
that the punishment was something less than death. See Drehman v. Stifle, 8
Wall. 595, 601 (1870).
538
facto.'" Collins, 497 U. S., at 42 (quoting Beazell, 269 U. S., at 169-170).
Collins then observed in a footnote: "The Beazell definition omits the
reference by Justice Chase in Calder v. Bull, to alterations in the 'legal rules
of evidence.' As cases subsequent to Calder make clear, this language was
not intended to prohibit the application of new evidentiary rules in trials for
crimes committed before the changes." 497 U. S., at 43, n.3 (citations
omitted). Collins then commented that "[t]he Beazell formulation is faithful
to our best knowledge of the original understanding of the Ex Post Facto
Clause." Id., at 43.
It seems most accurate to say that Collins is rather cryptic. While calling
Calder's four categories the "exclusive definition" of ex post facto laws, it
also calls Beazell's definition a "faithful" rendition of the "original
understanding" of the Clause, even though that quotation omitted category
four. And while Collins quotes a portion of Beazell omitting the fourth
category, the immediately preceding paragraph in Beazell explains that the
law at issue in that case did not change "[t]he quantum and kind of proof
required to establish guilt," 269 U. S., at 170, a statement distinguishing,
rather than overruling, Calder's fourth category.
If Collins had intended to resurrect a long forgotten original understanding of
the Ex Post Facto Clause shorn of the fourth category, we think it strange that
it would have done so in a footnote. Stranger still would be its reliance on a
single case from 1925, which did not even implicate, let alone purport to
overrule, the fourth category, and which did not even mention Fenwick's case.
But this Court does not discard longstanding precedent in this manner.
489
Further still, Collins itself expressly overruled two of our prior cases; if the
Court that day were intent on overruling part of Calder as well, it surely would
have said so directly, rather than act in such an ambiguous manner.
539
The better understanding of Co II ins' discussion of the Ex Post Facto Clause
is that it eliminated a doctrinal hitch that had developed in our cases, which
purported to define the scope of the Clause along an axis distinguishing
between laws involving "substantial protections" and those that are merely
"procedural." Both Kring v. Missouri, 107 U. S. 221 (1883), and Thompson
v. Utah, 170 U. S. 343 (1898)-the two cases Collins overruled-relied on just
that distinction. In overruling them, the Court correctly pointed out, "the
prohibition which may not be evaded is the one defined by the Calder
categories." 497 U. S., at 46. Accordingly, Collins held that it was a mistake
to stray beyond Calder's four categories, not that the fourth category was itself
mistaken.28
VII
Texas next argues that even if the fourth category exists, it is limited to laws
that retrospectively alter the burden of proof (which Article 38.07 does not
do). See also post, at 572 (dissenting opinion). It comes to this conclusion on
the basis of two pieces of evidence. The first is our decision in Cummings v.
Missouri, 4 Wall. 277 (1867). The second concerns Texas' historical
understanding of Fenwick's case.
28 The dissent would have us dismiss our numerous and repeated invocations
of the fourth category, see supra, at 525, because they were merely
"mechanical ... recitation[s]" in cases that did not depend on the fourth
category. Post, at 568. Instead, the dissent would glean original meaning from
Beazell v. Ohio, 269 U. S. 167 (1925), and Collins v. Youngblood, 497 U. S.
37 (1990). Post, at 567-568. First of all, the dissent is factually mistaken;
Cummings v. Missouri, 4 Wall. 277 (1867), relied on the fourth category in
invalidating the laws at issue there. See infra this page and 540-541. And
Hopt v. Territory of Utah, 110 U. S. 574 (1884) (discussed infra, at 542-547),
specifically distinguished category four. See post, at 570-571 ("Hopt ...
retain[ed] Calder's fourth category"). Second, as mentioned above, neither
Beazell nor Collins relied on the fourth category, so it is not apparent why the
dissent would place so much emphasis on those two cases that did not depend
on category four.
540
Cummings v. Missouri addressed an ex post facto challenge to certain
amendments to the Missouri State Constitution made in 1865. When read
together, those amendments listed a series of acts deemed criminal (all
dealing with the giving of aid or comfort to anyone engaged in armed hostility
against the United States), and then declared that unless a person engaged in
certain professions (e. g., lawyers and clergymen) swore an oath of loyalty,
he "shall, on conviction [for failing to swear the oath], be punished" by a fine,
imprisonment, or both. Id., at 279-281. We held that these provisions violated
the Ex Post Facto Clause.
Writing for the Court, Justice Field first observed that "[b]y an ex post facto
law is meant one which imposes a punishment for an act which was not
punishable at the time it was committed; or imposes additional punishment
to that then prescribed; or changes the rules of evidence by which less or
different testimony is sufficient to convict than was then required." Id., at
325-326. The Court then held the amendments violated the Ex Post Facto
Clause in all these respects: some of the offenses deemed criminal by the
amendments were not criminal acts before then, id., at 327-328; other acts
were previously criminal, but now they carried a greater criminal sanction,
id., at 328; and, most importantly for present purposes, the amendments
permitted conviction on less testimony than was previously sufficient,
because they "subvert the presumptions of innocence, and alter the rules of
evidence, which heretofore, under the universally recognized principles of
the common law, have been supposed to be fundamental and unchangeable,"
ibid. The Court continued: "They assume that the parties are guilty; they call
upon the parties to establish their innocence; and they declare that such
innocence can be shown only in one way-by an inquisition, in the form of an
expurgatory oath, into the consciences of the parties." Ibid.
It is correct that Cummings held Missouri's constitutional amendments
invalid under the fourth category because
541
490
they reversed the burden of proof. But Cummings nowhere suggests that a
reversal of the burden of proof is all the fourth category encompasses. And
we think there is no good reason to draw a line between laws that lower the
burden of proof and laws that reduce the quantum of evidence necessary to
meet that burden; the two types of laws are indistinguishable in all
meaningful ways relevant to concerns of the Ex Post Facto Clause. See supra,
at 530534; see also Cummings, 4 Wall., at 325 ("The legal result must be the
same, for what cannot be done directly cannot be done indirectly. The
Constitution deals with substance, not shadows").
As for Texas' second piece of evidence, it asserts that the law in Fenwick's
case, requiring two witnesses to convict a person for high treason, traces its
origins to the ancient Roman law concept known as the "rule of number,"
under which "the probative value of testimony would be increased if others
testifying to the same facts swore an oath." Brief for Respondent 20. The "less
testimony" to which Fenwick's case refers, the argument runs, concerns
lowering the probative value required to convict, i. e., a reduction in the
burden of proof.
Even if that historical argument were correct, the same response to Texas'
Cummings-based argument is applicable. But we think the historical premise
is mistaken. If the testimony of one witness rather than two truly reflected a
less credible showing, and if the House of Commons truly thought it labored
under a lesser burden of proof, then one would expect some sort of reference
to that in Fenwick's case. Yet the few direct references to the burden of proof
that were made during the debates are to the contrary; they indicate something
roughly the equivalent of a beyond-a-reasonabledoubt standard.29 And at
least one Member expressly de-
29 See, e. g., Proceedings 75 ("If upon what I hear, I am of Opinion, he is
notoriously Guilty, I shall freely pass the Bill. If I do so much as doubt that
he is Guilty, according to the old Rule, Quod dubitas ne feceris
542
dared that the number of witnesses testifying bore no relationship to the
overall credibility of the Crown's case.30 It also appears that "[a]fter the
middle of the 1600s there never was any doubt that the common law of
England in jury trials rejected entirely" the Roman law concept of the rule of
number. Wigmore, Required Numbers of Witnesses; A Brief History of the
Numerical System in England, 15 Harv. L. Rev. 83, 93 (1901). Though the
treason statute at issue in Fenwick's case, and related antecedent acts, have a
superficial resemblance to the rule of number, those acts in fact reflected a
concern with prior monarchical abuses relating to the specific crime of
treason, rather than any vestigial belief that the number of witnesses is a proxy
for probative value. Id., at 100-101; see also 7 J. Wigmore, Evidence § 2037,
pp. 353-354 (J. Chadbourn rev. 1978).
VIII
Texas argues (following the holding of the Texas Court of Appeals) that the
present case is controlled by Hopt v. Territory of Utah, 110 U. S. 574 (1884),
and Thompson v. Missouri, 171 U. S. 380 (1898). In Hopt, the defendant was
convicted of murder. At trial, the prosecution introduced the testimony of a
convicted felon that tended to inculpate the defendant. Hopt objected to the
competency of the witness on the basis of a law in place at the time of the
alleged murder, which stated: " '[T]he rules for determining the competency
of witnesses in civil actions are applicable also to criminal actions .... '" The
relevant civil rules, in turn, specified that "'all persons, without exception, ...
may be witnesses in any action or proceeding,'" but "'persons against whom
judgment has been rendered upon a conviction
[where you doubt, do nothing], I shall not be for it ... "). See also Coffin
30 "[O]ne single Witness, if credited by Twelve Jury-men, is sufficient; and
an Hundred Witnesses, if not so credited, is not sufficient to Convict a Person
of a Capital Crime." Proceedings 210; see also id., at 223-226.
543
for felony ... shall not be witnesses.'" 110 U. S., at 587-588. After the date of
the alleged offense, but prior to defendant's trial, the last provision (excluding
convicted felons from being witnesses) was repealed.
The defendant argued that the retrospective application of the felon witness-
competency provision violated the Ex Post Facto Clause. Because of the
emphasis the parties (and the dissent) have placed on Hopt, it is worth quoting
at length this Court's explanation for why it rejected the defendant's
argument:
491
"Statutes which simply enlarge the class of persons who may be competent
to testify in criminal cases are not ex post facto in their application to
prosecutions for crimes committed prior to their passage; for they do not
attach criminality to any act previously done, and which was innocent when
done; nor aggravate any crime theretofore committed; nor provide a greater
punishment therefor than was prescribed at the time of its commission; nor
do they alter the degree, or lessen the amount or measure, of the proofwhich
was made necessary to conviction when the crime was committed.
"The crime for which the present defendant was indicted, the punishment
prescribed therefor, and the quantity or the degree of proof necessary to
establish his guilt, all remained unaffected by the subsequent statute. Any
statutory alteration of the legal rules of evidence which would authorize
conviction upon less proof, in amount or degree, than was required when the
offence was committed, might, in respect of that offence, be obnoxious to the
constitutional inhibition upon ex post facto laws. But alterations which do not
increase the punishment, nor change the ingredients of the offence or the
ultimate facts necessary to establish guilt, but-leaving untouched the nature
of the crime and the amount or degree of proof essential to conviction-only
remove existing restrictions upon the compe-
544
tency of certain classes of persons as witnesses, relate to modes of procedure
only, in which no one can be said to have a vested right, and which the State,
upon grounds of public policy, may regulate at pleasure. Such regulations of
the mode in which the facts constituting guilt may be placed before the jury,
can be made applicable to prosecutions or trials thereafter had, without
reference to the date of the commission of the offence charged." Id., at 589-
590 (emphases added).
Thompson v. Missouri, also relied upon by Texas, involved a similar ex post
facto challenge to the retrospective application of a law permitting the
introduction of expert handwriting testimony as competent evidence, where
the rule in place at the time of the offense did not permit such evidence to be
introduced. Mainly on the authority of Hopt, the Court rejected Thompson's
ex post facto challenge as well.
Texas' reliance on Hopt is misplaced. Article 38.07 is simply not a witness
competency rule.31 It does not "simply enlarge the class of persons who may
be competent to testify," and it does not "only remove existing restrictions
upon the competency of certain classes of persons as witnesses." 110 U. S.,
at 589-590. Both before and after the amendment, the victim's testimony was
competent evidence. Texas Rule of Criminal Evidence 601(a) already
prescribes that "[e]very person is competent to be a witness except as
otherwise provided in these rules," and Rule 601(a)(2) already contains its
own provision respecting child wit-
31 We recognize that the Court of Appeals stated Article 38.07 "merely
'removes existing restrictions upon the competency of certain classes of
persons as witnesses,'" 963 S. W. 2d, at 836 (quoting Hopt, 110 U. S., at 590);
see supra, at 520. Whether a state law is properly characterized as falling
under the Ex Post Facto Clause, however, is a federal question we determine
for ourselves. Cf. Lindsey v. Washington, 301 U. S. 397, 400 (1937).
545
nesses.32 As explained earlier, see supra, at 517-518, 531533, Article 38.07
is a sufficiency of the evidence rule. As such, it does not merely "regulat[e]
... the mode in which the facts constituting guilt may be placed before the
jury," (Rule 601(a) already does that), but governs the sufficiency of those
facts for meeting the burden of proof. Indeed, Hopt expressly distinguished
witness competency laws from those laws that "alter the degree, or lessen the
amount or measure, of the proof which was made necessary to conviction
when the crime was committed." 110 U. S., at 589; see also id., at 590 (felon
witness law "leav[es] untouched ... the amount or degree of proof essential to
conviction").
It is profitable, in this respect, to compare the statutes in Hopt and Thompson
with the text of Article 38.07. The law in Hopt proscribed a "'rul[e] for
determining the competency of witnesses'" that stated "'persons ... convict[ed
of a] felony ... shall not be witnesses.'" 110 U. S., at 587-588. The statute in
Thompson, similarly, specified that "'comparison of a disputed writing ...
shall be permitted to be made by witnesses, and such writings ... may be
submitted to the court and jury as evidence.'" 171 U. S., at 381. Article 38.07,
however, speaks in terms of whether "[a] convic-
32 That subsection contains an exception for "[c]hildren or other persons
who, after being examined by the court, appear not to possess sufficient
intellect to relate transactions with respect to which they are interrogated."
492
It is also worth observing that before 1986, Rule 601(a) was codified as Tex.
Code Crim. Proc. Ann., Art. 38.06 (Vernon 1979)-the section immediately
preceding the law at issue in this case. (The provision then read: "All persons
are competent to testify in criminal cases," and contained a similar exception
for child witnesses.) We think it fair to infer that Texas was well aware of the
differences in the language used in these adjacent provisions, and understood
that the laws served two different functions. The dissent views Article 38.07
as an exception to the general rule of former Article 38.06. It finds it logical
that the exception would be placed next to the general rule, post, at 564, n. 8,
but does not suggest a reason why it would be logical for the supposed
exception to be phrased in language so utterly different from the general rule.
546
tion ... is supportable on" certain evidence. It is Rule 601(a), not Article 38.07,
that addresses who is "competent to testify." We think the differences in these
laws are plain.33
Moreover, a sufficiency of the evidence rule resonates with the interests to
which the Ex Post Facto Clause is addressed in a way that a witness
competency rule does not. In particular, the elements of unfairness and
injustice in subverting the presumption of innocence are directly implicated
by rules lowering the quantum of evidence required to convict. Such rules
will always run in the prosecution's favor, because they always make it easier
to convict the accused. This is so even if the accused is not in fact guilty,
because the coercive pressure of a more easily obtained conviction may
induce a defendant to plead to a lesser crime rather than run the risk of
conviction on a greater crime. Witness competency rules, to the contrary, do
not necessarily run in the State's favor. A felon witness competency rule, for
example, might help a defendant if a felon is able to relate credible
exculpatory evidence.
Nor do such rules necessarily affect, let alone subvert, the presumption of
innocence. The issue of the admissibility of evidence is simply different from
the question whether the properly admitted evidence is sufficient to convict
the defendant. Evidence admissibility rules do not go to the general issue of
guilt, nor to whether a conviction, as a matter of law, may be sustained.
Prosecutors may satisfy all the requirements of any number of witness
competency
33 The dissent seems unwilling to concede this distinction. Though it admits
that under Article 38.07 the uncorroborated victim is "not literally forbidden
from testifying," post, at 563, it also insists that testimony is "inadmissible,"
post, at 571, and that "the jury will not be permitted to consider it," post, at
555, n. 3. See also post, at 557, 565 (referring to Article 38.07 as a rule about
witness "credibility"); post, at 556, 570, 575 (referring to Texas' law as a rule
of "admissibility"); post, at 553, 557,563, 564, and n. 8, 575 (referring to the
law as one about "competency"). We think it is clear from the text of Article
38.07 and Rule 601, however, that the victim's testimony alone is not
inadmissible; it is just insufficient.
547
rules, but this says absolutely nothing about whether they have introduced a
quantum of evidence sufficient to convict the offender. Sufficiency of the
evidence rules (by definition) do just that-they inform us whether the
evidence introduced is sufficient to convict as a matter of law (which is not
to say the jury must convict, but only that, as a matter of law, the case may
be submitted to the jury and the jury may convict). In the words of Article
38.07, "[a] conviction ... is supportable" when its requirements are met.
IX
The dissent contends that Article 38.07 is not a sufficiency of the evidence
rule. It begins its argument by describing at length how the corroboration
requirement "is premised on a legislative judgment that accusations made by
sexual assault victims above a certain age are not independently trustworthy."
Post, at 556; see also post, at 557-559. But it does not follow from that
premise that Article 38.07 cannot be a sufficiency of the evidence rule. Surely
the legislature can address trustworthiness issues through witness
competency rules and sufficiency of the evidence rules alike. Indeed, the
statutory history to which the dissent points cuts against its own argument.
Article 38.07's statutory antecedent, the dissent says, was a "replac[ement]"
for the old common-law rule that seduced females were" 'incompetent'" as
witnesses. Post, at 557, 558. In 1891, Texas substituted a law stating that" 'the
female alleged to have been seduced shall be permitted to testify; but no
conviction shall be had upon the testimony of the said female, unless the same
is corroborated .... '" Post, at 558 (emphasis added). That statute was
recodified as Article 38.07 in 1965, was repealed in 1973, and then replaced
493
in 1975 by another version of Article 38.07. As reenacted, the law's language
changed from "no conviction shall be had" to its current language that "[a]
conviction ... is supportable." We think this legislative history, to the extent
it is relevant for interpreting the current
548
law, demonstrates that Texas perceived the issue of witness trustworthiness
as both an admissibility issue and as a sufficiency question; that it long ago
abandoned its rule that victims of these types of crimes are incompetent as
witnesses; and that Article 38.07 codifies Texas' sufficiency of the evidence
solution to the trustworthiness issue.
Next, the dissent argues that under Texas' law "the prosecution need not
introduce the victim's testimony at all, much less any corroboration of that
testimony." Post, at 559. Instead, "[u]nder both the old and new versions of
the statute, a conviction could be sustained on the testimony of a single third-
party witness, on purely circumstantial evidence, or in any number of other
ways." Ibid. Because other avenues of prosecution-besides the victim's
testimony (with or without corroboration or outcry)-remain available to the
State, Article 38.07 "did not change the quantity of proof necessary to convict
in every case." Post, at 560 (emphasis added in part and deleted in part); see
also post, at 561 ("Article 38.07 has never dictated what it takes in all cases
... for evidence to be sufficient to convict" (emphasis added)). Accordingly,
the dissent urges, more evidence (in the form of corroboration) is not really
required under Article 38.07. See post, at 560-561, 574. It is unclear whether
the dissent's argument is that laws cannot be sufficiency of the evidence rules
unless they apply to every conviction for a particular crime, or whether the
dissent means that sufficiency rules not applicable in every prosecution for a
particular crime do not fall within Calder's fourth category, which refers to
less testimony "required ... in order to convict the offender." 3 Dall., at 390
(emphasis added in part and deleted in part). Either way, the argument fails.
Fenwick's case once again provides the guide. The dissent agrees that "[t]he
treason statute in effect at the time of John Fenwick's conspiracy, like the
Treason Clause of our Constitution, embodied ... a quantitative sufficiency
[of the evidence] rule." Post, at 573. But, it argues, Fen-
549
wick's law and the Treason Clause are different from Article 38.07; with the
first two laws, "two witnesses [were] necessary to support a conviction," ibid.
(emphasis added), whereas with Article 38.07, the victim's testimony plus
corroboration is not "necessary to convict in every case," post, at 560
(emphasis added). But a closer look at Fenwick's law and at the Treason
Clause shows that this supposed distinction is simply incorrect. Fenwick's
law stated that no person could be convicted of high treason "but by and upon
the Oaths and Testimony of Two lawfull Witnesses ... unlesse the Party
indicted and arraigned or tryed shall willingly without violence in open Court
confesse the same or shall stand Mute or refuse to plead ... " See n. 15, supra
(emphasis added). And the Treason Clause, of course, states that "No Person
shall be convicted of Treason unless on the Testimony of two Witnesses to
the same overt Act, or on Confession in open Court." U. S. Const., Art. III, §
3 (emphasis added). Plainly, in neither instance were two witnesses
"necessary to support a conviction," as the dissent claims. Accordingly, its
assertion that Article 38.07 "is nothing like the two-witness rule on which
Fenwick vainly relied" appears erroneous, as does its accusation that our
reliance on Fenwick's case "simply will not wash." Post, at 573.34
The dissent's final argument relies upon Hopt and runs something like this.
The "effect" of Article 38.07, it claims, is the same, in certain cases, as a
witness credibility rule. See post, at 559, 563-566, 575. However differently
Hopt-
34 Perhaps one can draw a distinction between convictions based on
confessions in open court and convictions based on third-party evidence and
the like (though how such a distinction would comport with the language of
the fourth category is not apparent). For example, an accused's confession
might be thought to be outside of the State's control. But see n. 24, supra. It
is not clear at all, though, that the availability of evidence other than the
victim's testimony is any more within the State's control than is the
defendant's confession.
550
type laws and Article 38.07 may seem to operate on their face, in practical
application (at least in certain instances) their consequences are no different,
and, accordingly, they ought to be treated alike. For example, if there were a
rule declaring a victim to be incompetent to testify unless she was under a
certain age at the time of the offense, or had made an outcry within a specified
494
period of time, or had other corroborating evidence, and the prosecution
attempted to rest its case on the victim's testimony alone without satisfying
those requirements, the end result would be a judgment of acquittal. Post, at
564-565. Likewise, under Article 38.07, if the prosecution attempts to rest its
case on the victim's testimony alone without satisfying the Article's
requirements, the result would also be an acquittal. Thus, Hopt-type laws and
Article 38.07 should be treated the same way for ex post facto purposes.
This argument seeks to make Hopt controlling by ignoring what the case says.
Hopt specifically distinguished laws that "alter the degree, or lessen the
amount or measure, of the proof" required to convict from those laws that
merely respect what kind of evidence may be introduced at trial. See supra,
at 545. The above argument, though, simply denies any meaningful
distinction between those types of laws, on the premise that they produce the
same results in some situations. See post, at 563 ("Such a victim is of course
not literally forbidden from testifying, but that cannot make the difference for
Ex Post Facto Clause purposes between a sufficiency of the evidence rule and
a witness competency rule"); post, at 571 ("Hopt cannot meaningfully be
distinguished from the instant case"). In short, the argument finds Hopt
controlling by erasing the case's controlling distinction.
The argument also pays no heed to the example laid down by Fenwick's case.
Surely we can imagine a witness competency rule that would operate in a
manner similar to the law in that case (e. g., a witness to a treasonous act is
not
551
competent to testify unless corroborated by another witness). Plainly, the
imagined rule does not mean that Fenwick's case is not an example of an ex
post facto law. But if that is so, why should it be any different for Article
38.07? Just as we can imagine a witness competency rule that would operate
similarly to the statute in Fenwick's case, the above argument imagines a
witness competency rule that operates similarly to Article 38.07. If the former
does not change our view of the law in Fenwick's case, why should the latter
change our view in the present circumstances?
Moreover, the argument fails to account for what Calder's fourth category
actually says, and tells only half the story of what a witness competency rule
does. As for what Calder says, the fourth category applies to "[e]very law that
alters the legal rules of evidence, and receives less, or different, testimony,
than the law required at the time of the commission of the offence, in order
to convict the offender." 3 Dall., at 390 (emphasis deleted). The last six words
are crucial. The relevant question is whether the law affects the quantum of
evidence required to convict; a witness competency rule that (in certain
instances at least) has the practical effect of telling us what evidence would
result in acquittal does not really speak to Calder's fourth category.
As for relating only half the story, the dissent's argument rests on the assertion
that sometimes a witness competency rule will result in acquittals in the same
instances in which Article 38.07 would also demand an acquittal. That may
be conceded, but it is only half the story-and, as just noted, not the most
relevant half. The other half concerns what a witness competency rule has to
say about the evidence "required ... in order to convict the offender." The
answer is, nothing at all. As mentioned earlier, see supra, at 546547,
prosecutors may satisfy all the requirements of any number of witness
competency rules, but this says absolutely nothing about whether they have
introduced a quantum of
552
evidence sufficient to convict the offender. Sufficiency of the evidence rules,
however, tell us precisely that.35
X
For these reasons, we hold that petitioner's convictions on counts 7 through
10, insofar as they are not corroborated by other evidence, cannot be sustained
under the Ex Post Facto Clause, because Texas' amendment to Article 38.07
falls within Calder's fourth category. It seems worth remembering, at this
point, Joseph Story's observation about the Clause:
" 'If the laws in being do not punish an offender, let him go unpunished; let
the legislature, admonished of the
35 The dissent contends that the witness competency rule "would produce the
same results" as a sufficiency rule, post, at 564-565 (emphasis deleted), and
above we have been willing to assume as much for argument's sake. But the
dissent's statement is not entirely correct. It would not be the witness
competency rule that would produce the same result, but that rule in
495
combination with the normally operative sufficiency rule. Failure to comply
with the requirements of Article 38.07, by contrast, would mean that the
evidence is insufficient to convict by the force of that law alone. That
difference demonstrates the very distinction between witness competency
rules and sufficiency of the evidence rules, points to precisely the distinction
that Hopt drew, and illustrates why (contrary to the dissent's contention) our
conclusion about Article 38.07 does not apply to "countless evidentiary
rules." Post, at 571.
That is also why the dissent's statement that we have been "misdirected" by
the plain text of Article 38.07 is wrong. Post, at 564. The dissent asserts that
"any evidence" admitted under an applicable rule of evidence could
"potentially" support a conviction, ibid., and therefore Article 38.07's explicit
specification that a conviction "is supportable" if its requirements are met
does not distinguish it from ordinary rules of evidence. Once again, we point
out that whether certain evidence can support a conviction is not determined
by the rule of admissibility itself, but by some other, separate, normally
operative sufficiency of the evidence rule. The distinction the dissent finds
illusive is that Article 38.07 itself determines the evidence's sufficiency (that
is why it is a sufficiency of the evidence rule), while witness competency
rules and other ordinary rules of evidence do not (because they are
admissibility rules, not sufficiency rules). See also n. 23, supra.
553
defect of the laws, provide against the commission of future crimes of the
same sort. The escape of one delinquent can never produce so much harm to
the community, as may arise from the infraction of a rule, upon which the
purity of public justice, and the existence of civil liberty, essentially depend.'"
3 Commentaries on the Constitution § 1338, at 211, n. 2.
And, of course, nothing in the Ex Post Facto Clause prohibits Texas'
prospective application of its amendment. Accordingly, the judgment of the
Texas Court of Appeals is reversed, and the case is remanded for further
proceedings not inconsistent with this opinion.
It is so ordered.
JUSTICE GINSBURG, with whom THE CHIEF JUSTICE, JusTICE
O'CONNOR, and JUSTICE KENNEDY join, dissenting.
The Court today holds that the amended version of Article 38.07 of the Texas
Code of Criminal Procedure reduces the amount of proof necessary to support
a sexual assault conviction, and that its retroactive application therefore
violates the Ex Post Facto Clause. In so holding, the Court misreads both the
Texas statute and our precedents concerning the Ex Post Facto Clause. Article
38.07 is not, as the Court would have it, most accurately characterized as a
"sufficiency of the evidence rule"; it is in its essence an evidentiary provision
dictating the circumstances under which the jury may credit victim testimony
in sexual offense prosecutions. The amended version of Article 38.07 does
nothing more than accord to certain victims of sexual offenses full testimonial
stature, giving them the same undiminished competency to testify that Texas
extends to witnesses generally in the State's judicial proceedings. Our
precedents make clear that such a witness competency rule validly may be
applied to offenses committed before its enactment. I therefore dissent.
554
***
Petitioner Scott Leslie Carmell began sexually abusing his stepdaughter, "K.
M.," in the spring of 1991, when K. M. was 13 years old. He continued to do
so through March 1995. The specific question before the Court concerns
Carmell's sexual assault on K. M. in June 1992, when K. M. was 14.1 K. M.
did not inform anyone about that assault or about any of Carmell's other
sexual advances toward her until sometime around March 1995, when she
told a friend and then her mother, Eleanor Alexander. Alexander went to the
police, and Carmell was arrested and charged in a is-count indictment.
Under Article 38.07 of the Texas Code of Criminal Procedure as it stood at
the time of the assault, a conviction for sexual assault was supportable on the
uncorroborated testimony of the victim if the victim was younger than 14
years old at the time of the offense. If the victim was 14 years old or older,
however, the victim's testimony could support a conviction only if that
testimony was corroborated by other evidence. One form of corroboration,
specifically described in Article 38.07 itself, was known as "outcry": The
victim's testimony could support a conviction if he or she had informed
another person, other than the defendant, about the offense within six months
of its occurrence. Tex. Code Crim. Proc. Ann., Art. 38.07 (Vernon 1983).
496
Article 38.07 was amended in 1993. Under the new version, which was in
effect at the time of Carmell's trial, the victim's uncorroborated testimony can
support a conviction as long as the victim was under 18 years of age at the
time of the offense. Tex. Code Crim. Proc. Ann., Art. 38.07 (Vernon Supp.
2000). The corroboration requirement con-
1 The Court correctly notes that Carmell's ex post facto challenge applies
equally to three other counts on which he was convicted. Ante, at 518519.
This Court's grant of review, however, was limited to the first question
presented in Carmell's petition for certiorari, which encompassed only the
count charging the June 1992 assault. Pet. for Cert. 4.
555
tinues in force for victims aged 18 or older, with a modified definition of
outcry not material here. Thus, under the version of Article 38.07 in effect at
the time of Carmen's trial but not the version in effect at the time of the
offense, his conviction was supportable by the uncorroborated testimony of
K. M. The new version of Article 38.07 was applied at Carmen's trial, and he
was convicted.2 Carmen argues that the application of the new version of
Article 38.07 to his trial violated the Ex Post Facto Clause, U. S. Const., Art.
I, § 10, cl. 1.
I evidence. Its purpose is to rein in the admissibility of testimony the legislature
A proper understanding of Article 38.07 of the Texas Code of Criminal
Procedure is central to this case. Accordingly, I turn first to the effect and
purpose of that statute.
The effect of Article 38.07 in sexual offense prosecutions is plain. If the
victim is of a certain age, the jury, in assessing whether the prosecution has
met its burden of demonstrating guilt beyond a reasonable doubt, must give
no weight to her testimony unless that testimony is corroborated, either by
other evidence going directly to guilt or by "outcry." 3 For victims (such as
K. M.) who were between the ages of 14 and
2 The Texas Court of Appeals did not rule on whether the State in fact did
corroborate K. M.'s testimony at trial. I note the testimony of K. M.'s mother
that when she visited Carmell in jail and told him he needed to confess if he
was sorry for what he had done, he wrote "'adultery with [K. M.]''' on a piece
of paper. 963 S. W. 2d 833, 835 (Tex. App. 1998). That testimony might
count as corroboration. Because this question is outside the grant of certiorari,
I (like the Court, see ante, at 519, n. 4) do not further address it.
3 At first glance one might object that the statute permits the jury to give such
testimony some weight, just not enough to support a conviction. See, e. g.,
ante, at 546, n. 33 (contending that under the old Article 38.07, "the victim's
testimony alone is not inadmissible, it is just insufficient"). A moment's
reflection should reveal, however, that this distinction is illusory. If a
particular item of evidence cannot by itself support a conviction, then the jury
will not be permitted to consider it unless and until corroborating evidence is
introduced.
556
18 at the time of the offense, the 1993 amendment repealed this corroboration
requirement. The amended version of Article 38.07 thus permits sexual
assault victims between 14 and 18 to have their testimony considered by the
jury in the same manner and with the same effect as that of witnesses
generally in Texas prosecutions.
This sort of corroboration requirement-still embodied in Article 38.07 for
victims aged 18 or older-is a common, if increasingly outmoded, rule of
has deemed insufficiently credible standing alone. Texas' requirement of
corroboration or outcry, like similar provisions in other jurisdictions, is
premised on a legislative judgment that accusations made by sexual assault
victims above a certain age are not independently trustworthy. See Villareal
v. State, 511 S. W. 2d 500, 502 (Tex. Crim. App. 1974) ("The basis of this
rule is that the failure to make an outcry or promptly report the rape
diminishes the credibility of the prosecutrix."); cf., e. g., Battle v. United
States, 630 A. 2d 211, 217 (D. C. 1993) (evidence of outcry "rebuts an
implied charge of recent fabrication, which springs from some jurors'
assumptions that sexual offense victims are generally lying and that the
victim's failure to report the crime promptly is inconsistent with the victim's
current statement that the assault occurred").
Legislatures in many States, including Texas, have enacted similar
evidentiary provisions requiring corroboration for the testimony of other
categories of witnesses, particularly accomplices. See, e. g., Tex. Code Crim.
497
Proc. Ann., Art. 38.14 (Vernon Supp. 2000) ("A conviction cannot be had
upon the testimony of an accomplice unless corroborated by other evidence
tending to connect the defendant with the offense committed .... "). Such
provisions-generally on the wane but still in force in several States-are, like
Article 38.07, designed to ensure the credibility of the relevant witness. See,
e. g., State v. Haugen, 448 N. W. 2d 191, 194
557
(N. D. 1989) ("The purpose of corroborating evidence is to show that
accomplices are reliable witnesses and worthy of credit."); Holladay v. State,
709 S. W. 2d 194, 196 (Tex. Grim. App. 1986) ("Because such a witness [i.
e., an accomplice] is usually deemed to be corrupt, his testimony is always
looked upon with suspicion."); Fleming v. State, 760 P. 2d 208, 209210
(Okla. Grim. App. 1988) ("The purpose behind the requirement of
corroboration is to protect an accused from being falsely implicated by
another criminal in the hope of clemency, a desire for revenge, or for any
other reason.").
I make no judgment here as to the propriety of the Texas Legislature's
decision to view the testimony of certain sexual assault victims in the same
light as that of accomplices. Ex post facto analysis does not depend on an
assessment of a statute's wisdom. For current purposes it suffices to note that
Article 38.07's corroboration requirement rests on the same rationale that
underpins accomplice corroboration requirements: the notion that a particular
witness, because of his or her role in the events at issue, might not give
trustworthy testimony. See Reed v. State, 991 S. W. 2d 354, 361 (Tex. App.
1999) ("Generally speaking, the need to corroborate the testimony of a sexual
assault victim stems from the notion that the victim, if over the age of consent,
could be an accomplice rather than a victim."); Hernandez v. State, 651 S. W.
2d 746, 751 (Tex. Grim. App. 1983) (concurring opinion adopted on
rehearing) (Article 38.07's corroboration requirement "was meant to deal only
with testimony of a victim of a sexual offense who, for one reason or another,
was held to be an 'accomplice witness' and, perforce, whose testimony must
be corroborated.").
The history of Article 38.07 bears out the view that its focus has always been
on the competency and credibility of the victim as witness. The origins of the
statute could be traced to the fact that in Texas, "for many years a seduced
female was an incompetent witness as a matter of law." Holladay, 709 S. W.
2d, at 200. See, e. g., Cole v. State, 40
558
Tex. 147 (1874); see also Hernandez, 651 S. W. 2d, at 751-752 (tracing the
current Article 38.07 to the earlier seduction victim competency rule). In
1891, this common-law disability was lifted by statute and replaced by a
corroboration requirement: "In prosecutions for seduction ... the female
alleged to have been seduced shall be permitted to testify; but no conviction
shall be had upon the testimony of the said female, unless the same is
corroborated by other evidence tending to connect the defendant with the
offense charged." Tex. Rev. Crim. Stat., Tit. 8, ch. 7, Art. 789 (1911). The
application of this statute to offenses committed before its enactment was
upheld by the Texas courts on the authority of Hopt v. Territory of Utah, 110
U. S. 574 (1884). See Mrous v. State, 31 Tex. Crim. App. 597, 21 S. W. 764
(1893). The corroboration requirement for seduction prosecutions, recodified
in 1965 at Tex. Code Crim. Proc. Ann., Art. 38.07, remained in effect until
1973, when the entire 1925 Penal Code (including the offense of seduction)
was repealed.
In 1975, Article 38.07 was enacted substantially in its present form. As
revised, the article covered all sexual offenses in Chapter 21 of the Texas
Penal Code; however, it contained no express exemption from the
corroboration requirement for the testimony of the youngest victims. Tex.
Code Crim. Proc. Ann., Art. 38.07 (Vernon 1979). The exemption for victims
under the age of 14 was added in 1983, and extended in 1993 to cover those
under the age of 18, as already described. As initially proposed, the 1993
change would have eliminated the corroboration/outcry requirement
altogether. House Research Organization, Texas House of Representatives,
Daily Floor Report 13 (Mar. 15, 1993), Lodging of Petitioner. Supporters of
the proposal maintained that "[v]ictims in sexual assault cases are no more
likely to fantasize or misconstrue the truth than the victims of most other
crimes, which do not require corroboration of testimony or previous 'outcry.'
Juries can decide if a witness is credible .... Most states no longer require this
type of corrobora-
559
498
tion; neither should Texas." Id., at 14. The historical development of Article
38.07 reveals a progressive alleviation of restrictions on the competency of
victim testimony, not a legislative emphasis on the quantum of evidence
needed to convict.
The version of Article 38.07 applied at Carmell's trial was thus, in both effect
and purpose, an evidentiary rule governing the weight that may be given to
the testimony of sexual assault victims who had attained the age of 14. The
Court's efforts to paint it as something more than that are detached from the
statute's moorings and are consequently unpersuasive.
To begin with, it is beyond doubt that Article 38.07 does not establish an
element of the offense. See Love v. State, 499 S. W. 2d 108, 108 (Tex. Crim.
App. 1973) ("[O]utcry is not one of the elements of the offense charged.").
To convict a defendant of sexual assault in Texas today as before 1993, the
prosecution need not introduce the victim's testimony at all, much less any
corroboration of that testimony. The Court is therefore less than correct in
asserting that "[u]nder the law in effect at the time the acts were committed,
the prosecution's case was legally insufficient and petitioner was entitled to a
judgment of acquittal, unless the State could produce both the victim's
testimony and corroborative evidence." Ante, at 530. Under both the old and
new versions of the statute, a conviction could be sustained on the testimony
of a single third-party witness, on purely circumstantial evidence, or in any
number of other ways-so long as the admissible evidence presented is
sufficient to prove all of the elements of the offense beyond a reasonable
doubt.4 And under either version of Article 38.07, of course,
4 Not only is corroborated victim testimony not necessary for a conviction
under the former version of Article 38.07, it is not always sufficient. Under
both the old and new versions of the statute, the prosecution's evidence will
not support a conviction unless it is adequate to prove all the elements of the
offense beyond a reasonable doubt.
560
the accused could be convicted, like any other defendant, on the basis of a
guilty plea or a voluntary confession. Article 38.07, in other words, does not
define "sexual assault proven by corroborated victim testimony" as a distinct
offense from "sexual assault." Rather, the measure operates only to restrict
the State's method of proving its case.5
And it does so without affecting in any way the burden of persuasion that the
prosecution must satisfy to support a conviction. Under both the old and new
versions of the statute, the applicable standard is proof beyond a reasonable
doubt. The amendment in 1993 that repealed the corroboration requirement
for victims between the ages of 14 and 18 did nothing to change that standard.
The Court recognizes that Article 38.07 does not affect the applicable burden
of persuasion, see ante, at 539, but several times it asserts that the amended
version of the statute "changed the quantum of evidence necessary to sustain
a conviction," ante, at 530 (emphasis added). See also ante, at 531 (amended
law "permitted petitioner to be convicted with less than the previously
required quantum of evidence"); ante, at 532-533 (amended law "[r]educ[es]
the quantum of evidence necessary to meet the burden of proof" (emphases
added)). If by the word "quantum" the Court means to refer to the burden of
persuasion, these statements are simply incorrect and contradict the Court's
own acknowledgment. And if, as appears more likely, "quantum" refers to
some required quantity or amount of proof, the Court is also wrong. The
partial repeal of Article 38.07's corroboration requirement did not change the
quantity of proof necessary to convict in every case, for the simple reason
that Texas has never required the prosecution to introduce any particular
5 By the same reasoning, the repeal of the corroboration requirement for
victims between the ages of 14 and 18 plainly did not deprive sexual assault
defendants of any defense they previously enjoyed.
561
number of witnesses or items of proof to support a sexual assault conviction.6
The Court also declares several times that the amended version of Article
38.07 "subverts the presumption of innocence." See ante, at 532; see also
ante, at 533, nn. 22, 23, 546. The phrase comes from Cummings v. Missouri,
4 Wall. 277 (1867), in which the Court struck down a series of post-Civil War
amendments to the Missouri Constitution that imposed penalties on persons
unable or unwilling to swear an oath that they had not aided the Confederacy.
The amendments, the Court said in Cummings, "subvert the presumptions of
innocence" because "[t]hey assume that the parties are guilty [and] ... call
upon [them] to establish their innocence" by swearing the oath. Id., at 328.
Nothing of the kind is involved here. Article 38.07 did not impose a
499
presumption of guilt on Carmell and then saddle him with the task of
overcoming it. The burden of persuasion remained at all times with the State.
See Tex. Code Crim. Proc. Ann., Art. 38.03 (Vernon Supp. 2000). Carmell's
presumption of innocence is thus untouched by the current Article 38.07's
recognition of K. M.'s full testimonial stature.
The Court places perhaps its greatest weight on the "sufficiency of the
evidence" label, see ante, at 547-552, but the label will not stick. As just
noted, Article 38.07 has never dictated what it takes in all cases,
quantitatively or qualitatively, for evidence to be sufficient to convict. To the
contrary, under both the old and new versions of the statute the
6 Moreover, even in a case founded on the victim's testimony, the pre1993
version of Article 38.07 would permit the prosecution to corroborate that
testimony without introducing any additional evidence going to the
defendant's guilt, because corroboration could be provided by outcry, which
is hearsay and inadmissible to prove the truth of the matter asserted. See
Heckathorne v. State, 697 S. W. 2d 8, 12 (Tex. App. 1985) ("[A]n outcry
should not be admitted for its truth, but merely as evidence that the victim
informed someone of the offense.").
562
prosecution's admissible evidence will be sufficient to support a conviction if
a rational factfinder presented with that evidence could find the defendant
guilty beyond a reasonable doubt. The 1993 repeal of the corroboration
requirement for victims between the ages of 14 and 18 did not lower that
"sufficiency of the evidence" hurdle; it simply expanded the range of methods
the State could use to surmount it.
To be sure, one might descriptively say in an individual case that the
uncorroborated testimony of the victim would be "sufficient" to convict under
the new version of Article 38.07 and "insufficient" under the old. But that
cannot be enough to invalidate a statute as ex post facto. If it were, then all
evidentiary rules that work to the defendant's detriment would be
unconstitutional as applied to offenses committed before their enactment-an
outcome our cases decisively reject. See infra, at 570-571 (discussing
Thompson v. Missouri, 171 U. S. 380 (1898), and Hopt v. Territory of Utah,
110 U. S. 574 (1884), which upheld the retroactive application of evidentiary
rules governing the authentication of documents and the competency of
felons to testify, respectively). A defendant whose conviction turned, for
example, on an item of hearsay evidence considered inadmissible at the time
of the offense but made admissible by a later enacted statute might accurately
describe the new statute as one that permits conviction on less evidence than
was "sufficient" under prior law. But our precedents establish that such a
defendant has no valid ex post facto claim. See infra, at 570-571. N either
does Carmell.
The Court attempts to distinguish Article 38.07 from garden-variety
evidentiary rules by asserting that the latter "are ordinarily evenhanded, in the
sense that they may benefit either the State or the defendant in any given
case." Ante, at 533, n. 23. The truth of this assertion is not at all clear.
Evidence is never admissible in its own right; it must be admitted for some
purpose. Rules of admissibility typically take that basic fact into account,
often restricting the
563
use of evidence in a way that systematically disadvantages one side.
Consider, for example, a rule providing that evidence of a rape victim's sexual
relations with persons other than the accused is admissible to prove consent,
or a rule providing that evidence of a sexual assault defendant's prior sexual
offenses is inadmissible to show a propensity to commit that type of crime.
A statute repealing either of the above rules would "always run in the
prosecution's favor ... [by] mak[ing] it easier to convict the accused." Ante,
at 546.7 Yet no one (until today) has suggested that such a statute would be
ex post facto as applied to offenses committed before its enactment.
The Court resists the conclusion that Article 38.07 functions as a rule of
witness competency by asserting that "[b]oth before and after the amendment,
the victim's testimony was competent evidence." Ante, at 544. In all but the
most technical sense that blanket statement is dubious. If the victim was 14
years old or older at the time of the offense (18 or older under the amended
statute) and her testimony is unbolstered by corroboration or outcry, the jury
may not credit that testimony in determining whether the State has met its
burden of proof. Such a victim is of course not literally forbidden from
testifying, but that cannot make the difference for Ex Post Facto Clause
purposes between a sufficiency of the evidence rule and a witness
competency rule. Evidence to which the jury is not permitted to assign weight
is, in reality, incompetent evidence.
500

7 Cf. Fed. Rules Evid. 412(a)(1) (restricting admissibility of "[e]vidence
offered to prove that any alleged victim [of sexual misconduct] engaged in
other sexual behavior"); 412(b)(1)(B) (providing that "evidence of specific
instances of sexual behavior by the alleged victim with respect to the person
accused" is admissible to prove consent); 413(a) (providing that "evidence of
the defendant's commission of another offense or offenses of sexual assault
is admissible" in sexual assault cases notwithstanding Rule 404(b)'s general
prohibition on the introduction of prior bad acts evidence "to show action in
conformity therewith").
564
Perhaps the Court has been misdirected by the wording of Article 38.07,
which speaks in both its old and new versions of evidence upon which a
"conviction ... is supportable." See ante, at 547. That sounds like a
"sufficiency of the evidence rule," until one realizes that any evidence
admissible in a criminal case-i. e., any evidence that a jury is entitled to
consider in determining whether the prosecution has met its burden of
persuasion-is at least potentially evidence upon which a "conviction ... is
supportable." Conversely, as I have just said, evidence to which the jury may
give no weight in making that determination is effectively inadmissible.8
In short, no matter how it is phrased, the corroboration requirement of Article
38.07 is functionally identical to a conditional rule of witness competency. If
the former version of Article 38.07 had provided instead that "the testimony
of the victim shall be inadmissible to prove the defendant's guilt unless
corroborated," it would produce the
8 It is thus no wonder that before 1986 the general rule of witness competency
was codified at Article 38.06 of the Texas Code of Criminal Procedure, and
the statute now at issue immediately followed it. Article 38.07 was an
exception to the general rule laid out in Article 38.06. It is logical to put an
exception right after the rule. Yet the Court draws the opposite inference from
that juxtaposition. See ante, at 545, n. 32.
The Court's related observation that Texas' general witness competency
statute "already contains its own provision respecting child witnesses," ante,
at 544-545, is true but irrelevant. Article 38.07's corroboration requirement
has nothing to do with the diminished credibility of child witnesses. Indeed,
the statute has always permitted juries to credit fully the testimony of sexual
offense victims below a certain age (first 14, then 18) without any
corroboration, the reason apparently being that the legislature considers
victims under a certain age to be too young to consent to sex and then lie
about it. See, e. g., Scoggan v. State, 799 S. W. 2d 679, 681 (Tex. Crim. App.
1990); Hernandez v. State, 651 S. W. 2d 746,752-753 (Tex. Crim. App. 1983)
(concurring opinion adopted on rehearing). The corroboration requirement
attaches only to victims above a certain age, and thus would not be
appropriate for inclusion in a "provision respecting child witnesses."
565
same results as the actual statute in every case. Not "in certain instances,"
ante, at 551, or "in some situations," ante, at 550, but in every case.9
Recognizing this equivalency, the Texas Court of Criminal Appeals has noted
that the Texas accomplice corroboration rule is "a mere rule of evidence"
even though "statutorily worded as a sufficiency standard." Malik v. State,
953 S. W. 2d 234, 240, n. 6 (1997).10
In sum, the function and purpose of the corroboration requirement embedded
in the former version of Article 38.07 was to ensure the credibility of the
victim's testimony, not otherwise to impede the defendant's conviction. Our
precedents, I explain next, make clear that the retroactive repeal
9 The Court contends that the effect of Article 38.07 is distinct from that of a
witness competency rule because noncompliance with the former dictates
acquittal ex proprio vigore while noncompliance with the latter dictates
acquittal "in combination with the normally operative sufficiency rule." Ante,
at 552, n. 35. This is a distinction without a difference, because the "normally
operative sufficiency rule" in question-when the prosecution submits no
admissible evidence, its case will be deemed insufficient-is a bedrock
requirement of due process, applicable in every criminal trial.
10 The Court observes that the characterization of a state law under the Ex
Post Facto Clause is a federal question. Ante, at 544, n. 31. This undoubtedly
correct observation stands in some tension, however, with the Court's reliance
on the assertion that "Texas courts treat Article 38.07 as a sufficiency of the
evidence rule." Ante, at 518, n. 2. In any event, the latter assertion is
inaccurate, as Malik's discussion of the accomplice corroboration rule
suggests. It is true that a trial court's failure to comply with Article 38.07
501
results on appeal in the entry of an order of acquittal. But it is not true that
the remedy on appeal for the introduction of inadmissible evidence is always
a remand for a new trial. When the only evidence introduced by the
prosecution is evidence that may not be considered by a jury in determining
the defendant's guilt, the proper result is always acquittal. By the same
reasoning, as this Court decided just this Term, when a court of appeals has
found that evidence was improperly admitted in a civil trial and that the
remaining evidence is insufficient, it may enter judgment as a matter of law
rather than ordering a new trial. Weisgram v. Marley Co., 528 U. S. 440
(2000).
566
of such an evidentiary rule does not violate the Ex Post Facto Clause.
II
The Ex Post Facto Clause, this Court has said repeatedly, furthers two
important purposes. First, it serves "to assure that legislative Acts give fair
warning of their effect and permit individuals to rely on their meaning until
explicitly changed." Weaver v. Graham, 450 U. S. 24, 28-29 (1981).11
Second, it "restricts governmental power by restraining arbitrary and
potentially vindictive legislation." Id., at 29; see also Landgraf v. USI Film
Products, 511 U. S. 244, 267 (1994); Miller v. Florida, 482 U. S. 423, 429-
430 (1987). The latter purpose has much to do with the separation of powers;
like its textual and conceptual neighbor the Bill of Attainder Clause, the Ex
Post Facto Clause aims to ensure that legislatures do not meddle with the
judiciary's task of adjudicating guilt and innocence in individual cases.
Weaver, 450 U. S., at 29, n. 10.
The Court does not even attempt to justify its extension of the Clause in terms
of these two fundamental purposes. That is understandable, for to day's
decision serves neither purpose. The first purpose (fair warning and reliance),
vital as it is, cannot tenably be relied upon by Carmell. He had ample notice
that the conduct in which he engaged was illegal. He certainly cannot claim
to have relied in any way on the preamendment version of Article 38.07: He
tendered
11 Today's opinion apart, see ante, at 531, n. 21, this Court has consistently
stressed "'lack of fair notice'" as one of the "central concerns of the Ex Post
Facto Clause." Lynce v. Mathis, 519 U. S. 433, 441 (1997) (quoting Weaver
v. Graham, 450 U. S. 24, 30 (1981)). See also Landgraf v. USI Film Products,
511 U. S. 244, 266-267 (1994); Miller v. Florida, 482 U. S. 423, 430 (1987);
Weaver, 450 U. S., at 28-29; Marks v. United States, 430 U. S. 188, 191-192
(1977). The implausibility of ex ante reliance on rules of admissibility like
the one at issue here helps explain why the Ex Post Facto Clause has never
been held to apply to changes in such rules.
567
no reason to anticipate that K. M. would not report the assault within the
outcry period, nor any cause to expect that corroborating evidence would not
turn up sooner or later. Nor is the Clause's second purpose relevant here, for
there is no indication that the Texas Legislature intended to single out this
defendant or any class of defendants for vindictive or arbitrary treatment.
Instead, the amendment of Article 38.07 simply brought the rules governing
certain victim testimony in sexual offense prosecutions into conformity with
Texas law governing witness testimony generally.
In holding the new Article 38.07 unconstitutional as applied to Carmell, the
Court relies heavily on the fourth category of ex post facto statutes
enumerated by Justice Chase in his opinion in Calder v. Bull, 3 Dall. 386, 390
(1798):
"Every law that alters the legal rules of evidence, and receives less, or
different, testimony, than the law required at the time of the commission of
the offence, in order to convict the offender." Justice Chase's formulation was
dictum, of course, because Calder involved a civil statute and the Court held
that the statute was not ex post facto for that reason alone. Moreover, Justices
Paterson and Iredell in their own seriatim opinions gave no hint that they
considered rules of evidence to fall within the scope of the Clause. See id., at
395-397 (Paterson, J.); id., at 398-400 (Iredell, J.). Still, this Court has come
to view Justice Chase's categorical enumeration as an authoritative gloss on
the Ex Post Facto Clause's reach. Just a decade ago in Collins v. Youngblood,
497 U. S. 37 (1990), for instance, this Court reiterated that "the prohibition
which may not be evaded is the one defined by the Calder categories." Id., at
46.
If those words are placed in the context of the full text of the Collins opinion,
however, a strong case can be made that Collins pared the number of Calder
502
categories down to three, eliminating altogether the fourth category on which
the Court today so heavily relies. As long ago as 1925, in Beazell v. Ohio,
269 U. S. 167, the Court cataloged ex post
568
facto laws without mentioning Chase's fourth category at all. Id., at 169-170.
And in Collins the Court cited with apparent approval Beazell's omission of
the fourth category, 497 U. S., at 43, n. 3, declaring that "[t]he Beazell
formulation is faithful to our best knowledge of the original understanding of
the Ex Post Facto Clause: Legislatures may not retroactively alter the
definition of crimes or increase the punishment for criminal acts." Id., at 43.
Collins concluded by reciting in the plainest terms the prohibitions laid down
by the Ex Post Facto Clause: A statute may not "punish as a crime an act
previously committed, which was innocent when done; nor make more
burdensome the punishment for a crime, after its commission; nor deprive
one charged with crime of any defense available according to law at the time
when the act was committed." Id., at 52. This recitation conforms to Calder's
first three categories, but not the fourth; changes in evidentiary rules are
nowhere mentioned.12
The majority asserts that the Court has repeatedly endorsed Justice Chase's
formulation, "including, in particular, the fourth category," and it offers an
impressive-looking string citation in support of the claim. Ante, at 525. Yet
all of those cases simply quoted or paraphrased Chase's enumeration, a
mechanical task that naturally entailed a recitation of the fourth category. Not
one of them depended on that category for the judgment the Court reached.13
Nei-
12 In California Dept. of Corrections v. Morales, 514 U. S. 499, 504-505
(1995), the Court similarly enumerated the categories of ex post facto laws
without mentioning the fourth category.
13 The Court in Cummings v. Missouri, 4 Wall. 277 (1867), invoked the
fourth category, see id., at 328, but that invocation was hardly necessary to
the Court's holding. In Cummings, as already noted, the Court invalidated on
Bill of Attainder Clause and Ex Post Facto Clause grounds state constitutional
amendments that imposed punishment on persons unable to swear an oath
that they had not taken up arms against the Union in the Civil War. The Court
recognized that the challenged amendments, though framed in terms of a
method of proof, were "aimed at past acts,
569
ther did Justice Washington's opinion in Ogden v. Saunders, 12 Wheat. 213
(1827), which is quoted extensively by the Court, ante, at 532. In fact, the
Court has never until today relied on the fourth Calder category to invalidate
the application of a statute under the Ex Post Facto Clause.
It is true that the Court has on two occasions struck down as ex post facto the
retroactive application of rules governing the functioning of the criminal trial
process-but both decisions have since been overruled. In Kring v. Missouri,
107 U. S. 221 (1883), the Court held that Missouri was forbidden to apply
retroactively a state constitutional amendment providing that a plea of guilty
to second-degree murder would not automatically serve on retrial as an
acquittal of the charge of first-degree murder. And in Thompson v. Utah, 170
U. S. 343 (1898), the Court held that a change in state law reducing the
number of petit jurors in criminal trials from 12 to 8 was ex post facto because
it deprived the defendant of "a substantial right involved in his liberty." Id.,
at 352. The Court in Collins overruled both Kring and Thompson v. Utah,
concluding that neither decision was "consistent with the understanding of
the term 'ex post facto law' at the time the Constitution was adopted." Collins,
497 U. S., at 47, 50, 51-52.
The Court today offers a different reading of Collins. It concludes that Collins
overruled Kring and Thompson v. Utah because those cases improperly
construed the Ex Post Facto Clause to cover all "substantial protections," and
that the fourth Calder category consequently remains intact.
and not future acts," id., at 327, for only those who had aided the Confederacy
would be unable to take the expurgatory oath. The Court held that the
amendments violated Calder's first category by retroactively creating new
offenses, 4 Wall., at 327-328, and violated the third category by retroactively
imposing new punishments, id., at 328. As for Calder's fourth category, the
Court said only that the amendments "subvert[ed] the presumptions of
innocence" by "assum[ing] that the parties [we]re guilty." 4 Wall., at 328. As
already discussed, supra, at 561, that analysis is of no help to Carmell here.
570
503
That is a plausible reading of Collins, and I might well be prepared to accept
it, were the issue presented here. But it is not. For purposes of this case, it
does not matter whether Collins eliminated the fourth Calder category or left
it undisturbed. For even if the fourth category remains viable, our precedents
make clear that it cannot be stretched to fit the statutory change at issue here.
Those precedentsdecisions that fully acknowledged the fourth Calder
category-firmly establish that retroactively applied changes in rules
concerning the admissibility of evidence and the competency of witnesses do
not raise Ex Post Facto Clause concerns.
In Thompson v. Missouri, 171 U. S. 380 (1898), this Court upheld against ex
post facto attack the retroactive application of a statute that permitted the
introduction of previously inadmissible evidence to demonstrate the
authenticity of disputed writings. The new statute, the Court reasoned, "did
nothing more than remove an obstacle arising out of a rule of evidence that
withdrew from the consideration of the jury testimony which, in the opinion
of the legislature, tended to elucidate the ultimate, essential fact to be
established, namely, the guilt of the accused." Id., at 387.
The case most similar to the one before us is Hopt v. Territory of Utah, 110
U. S. 574 (1884). In that case, a statute in effect at the time of the offense but
repealed by the time of trial provided that felons were incompetent to testify.
The defendant, whose conviction for capital murder had been based in large
part on the testimony of a felon, claimed that the application of the new law
to his trial was ex post facto. The Court rejected the defendant's claim,
adopting reasoning applicable to the instant case:
"Statutes which simply enlarge the class of persons who may be competent
to testify in criminal cases are not ex post facto in their application to
prosecutions for crimes committed prior to their passage; for they do
571
not attach criminality to any act previously done, and which was innocent
when done; nor aggravate any crime theretofore committed; nor provide a
greater punishment therefor than was prescribed at the time of its
commission; nor do they alter the degree, or lessen the amount or measure,
of the proof which was made necessary to conviction when the crime was
committed." Id., at 589.
As the quoted passage shows, the Court in Hopt rejected the defendant's Ex
Post Facto Clause claim while retaining Calder's fourth category. The same
outcome should obtain today, for Hopt cannot meaningfully be distinguished
from the instant case.
The Court asserts that "Article 38.07 plainly fits" the fourth Calder category,
because "[r]equiring only the victim's testimony to convict, rather than the
victim's testimony plus other corroborating evidence is surely 'less testimony
required to convict' in any straightforward sense of those words." Ante, at
530. Yet to declare Article 38.07 ex post facto on that basis is to overrule
Hopt without saying so. For if the amended version of Article 38.07 requires
"less testimony ... to convict," then so do countless evidentiary rules,
including the felon competency rule whose retroactive application we upheld
in Hopt. In both this case and Hopt, a conviction based on evidence
previously deemed inadmissible was sustained pursuant to a broadened rule
regarding the competency of testimonial evidence. The mere fact that the new
version of Article 38.07 makes some convictions easier to obtain cannot be
enough to preclude its retroactive application. "Even though it may work to
the disadvantage of a defendant, a procedural change is not ex post facto."
Dobbert v. Florida, 432 U. S. 282, 293 (1977).
In short, the Court's expansive new reading of the Ex Post Facto Clause
cannot be squared with this Court's prior decisions. Rather than embrace such
an unprecedented approach, I would advance a "commonsense understanding
of
572
Calder's fourth category," ante, at 530, one that comports with our precedents
and with the underlying purposes of the Ex Post Facto Clause: Laws that
reduce the burden of persuasion the prosecution must satisfy to win a
conviction may not be applied to offenses committed before their enactment.
To be sure, this reading would leave the fourth category with considerably
less independent effect than it would have had in Justice Chase's day, given
our intervening decisions establishing the "beyond a reasonable doubt"
standard as a constitutional minimum under the Due Process Clause. See, e.
g., In re Winship, 397 U. S. 358 (1970); Jackson v. Virginia, 443 U. S. 307
(1979). But it is not a reading that necessarily renders the category
meaningless even today. Imagine, for example, a statute requiring the
504
prosecution to prove a particular sentencing enhancement factor-leadership
role in the offense, say, or obstruction of justice-beyond a reasonable doubt.
A new statute providing that the factor could be established by a mere
preponderance of the evidence might rank as ex post facto if applied to
offenses committed before its enactment. The same might be said of a statute
retroactively increasing the defendant's burden of persuasion as to an
affirmative defense.
Burdens of persuasion are qualitative tests of sufficiency.
Calder's fourth category, however, encompasses quantitative sufficiency
rules as well, for Justice Chase did speak of a law that "receives less ...
testimony, than the law required at the time of the commission of the
offence." 3 Dall., at 390 (emphasis added). Cf. Hopt, 110 U. S., at 590 ("Any
statutory alteration of the legal rules of evidence which would authorize
conviction upon less proof, in amount or degree, than was required when the
offence was committed" might be ex post facto. (emphasis added)).
Quantitative sufficiency rules are rare in modern Anglo-American law, but
some do exist. Criminal statutes sometimes limit the prosecution to a
particular form of proof, for example, the testimony of two witnesses to the
same overt act. In modern Anglo-
573
American law, such instances have been almost exclusively confined to two
contexts: perjury, see Weiler v. United States, 323 U. S. 606 (1945), and
treason, see U. S. Const., Art. III, § 3, cl. 1 ("No Person shall be convicted of
Treason unless on the Testimony of two Witnesses to the same overt Act, or
on Confession in open Court."). See generally Wigmore, Required Numbers
of Witnesses; A Brief History of the Numerical System in England, 15 Harv.
L. Rev. 83,100108 (1901).
The treason statute in effect at the time of John Fenwick's conspiracy, like the
Treason Clause of our Constitution, embodied just such a quantitative
sufficiency rule: As long as the accused traitor put the prosecution to its proof
by pleading not guilty, the sworn testimony of two witnesses was necessary
to support a conviction. The Court describes at great length the attainder of
Fenwick, which served as a cautionary model for Justice Chase's explication
of the fourth category in Calder. See ante, at 526-530.14 This excursion into
post-Restoration English history is diverting, but the Court's statement that
"the circumstances of petitioner's case parallel those of Fenwick's case 300
years earlier," ante, at 530, simply will not wash. The preamendment version
of Article 38.07 is nothing like the two-witness rule on which Fenwick vainly
relied.15
First, the preamendment version of Article 38.07, unlike a two-witness rule,
did not apply indifferently to all who testify. Rather, it branded a particular
class of witnesses-
14 Tellingly, the Court offers no evidence that anyone at the time of the
Framers considered witness corroboration requirements of the type involved
here to fall within the scope of the ex post facto prohibition.
15When the Texas Legislature wants to enact a two-witness rule, it knows
how to do so. See Tex. Code Crim. Proc. Ann., Art. 38.15 (Vernon Supp.
2000) ("No person can be convicted of treason except upon the testimony of
at least two witnesses to the same overt act, or upon his own confession in
open court."); Art. 38.18(a) ("No person may be convicted of perjury or
aggravated perjury if proof that his statement is false rests solely upon the
testimony of one witness other than the defendant.").
574
sexual assault victims aged 14 or older-as less competent than others to speak
in court. Second, as I have already described, the Texas statute did not restrict
the State to one prescribed form of proof. Both before and after the 1993
amendment, introduction of the victim's corroborated testimony was neither
required nor necessarily sufficient to sustain a conviction. Prosecutors'
compliance with both the old and new versions of Article 38.07 thus "says
absolutely nothing about whether they have introduced a quantum of
evidence sufficient to convict the offender." Ante, at 547, 551-552.16 On the
contrary, the only sufficiency rule applicable in Texas sexual offense
prosecutions has always been a qualitative one: The State's evidence must be
sufficient to prove every element of the offense beyond a reasonable doubt.
That should not be surprising. It makes little sense in our modern legal system
to conceive of standards of proof in quantitative terms. In a civil case, the
winner is the party that produces better evidence, not the party that produces
more evidence. Similarly, in a criminal trial the prosecution need not
introduce any fixed amount of evidence, so long as the evidence it does
505
introduce could persuade a rational factfinder beyond a reasonable doubt.
"Our system of justice rests on the general assumption that the truth is not to
be determined merely by the number of witnesses on each side of a
controversy. In gauging the truth of conflicting evidence, a jury has no simple
formulation of weights and measures on which to rely. The touchstone is
always credibility; the ultimate measure of testimonial worth is quality and
not

16 Noncompliance with the former version of Article 38.07 does say

something: The statute mandates acquittal if the prosecution comes forward
with no evidence beyond the victim's testimony, which is deemed unreliable
standing alone. But as the Court itself recognizes, "a witness competency rule
that ... has the practical effect of telling us what evidence would result in
acquittal does not really speak to Calder's fourth category." Ante, at 551.

575

quantity." Weiler, 323 U. S., at 608. If the Court wishes to rely on the fourth
Calder category to render Texas' altered evidentiary rule prospective only, it
should do so forthrightly by overruling Hopt and Thompson v. Missouri,
rather than by attempting to portray Article 38.07 as a quantitative sufficiency
rule indistinguishable from the two-witness requirement that figured in John
Fenwick's case.

***

In sum, it is well settled (or was until today) that retroactive changes to rules
concerning the admissibility of evidence and the competency of witnesses to
testify cannot be ex post facto. Because Article 38.07 is in both function and
purpose a rule of admissibility, Thompson v. Missouri, Hopt, Beazell, and
Collins dictate that its retroactive application does not violate the Ex Post
Facto Clause. That conclusion comports perfectly with the dual purposes that
underlie the Clause: ensuring fair notice so that individuals can rely on the
laws in force at the time they engage in conduct, and sustaining the separation
of powers while preventing the passage of vindictive legislation. The Court
today thus not only brings about an "undefined enlargement of the Ex Post
Facto Clause," Collins, 497 U. S., at 46, that conflicts with established
precedent, it also fails to advance the Clause's fundamental purposes. For
these reasons, I dissent.

506
 Republic Act No. 1379, "An Act Declaring Forfeiture in Favor of the State
of Any Property Found To Have Been Unlawfully Acquired by Any Public
Officer or Employee and Providing for the Proceedings Therefor. 2 As posed
by the referral resolution, 3 the question is whether or not said statute.

...en cuanto autoriza la confiscacion en favor del Estado de las propiedades

ilegalmente adquiridas por un funcionario o empleado del Gobierno antes de
la aprobacion de la ley ... es nula y anti-constitutional porque:

(a) es una Ley ex-post facto que autoriza la confiscacion de una

propiedad privada adquirida antes de la aprobacion de la ley y obliga el
funcionario o empleado publico a explicar como adquirio sus propiedades
privadas, compeliendo de esta forma a incriminarse a si mismo, y en cierto
modo autoriza la confiscacion de dicha propiedad sin debido proceso de la
ley; y

(b) porque autoriza la confiscacion de inmuebles previamente

G.R. No. L-19328 December 22, 1989 hipotecados de buena fe a una persona.

ALEJANDRO KATIGBAK and MERCEDES K. KATIGBAK, plaintiffs- The proceedings at bar originated from two (2) actions filed with the Court
appellants, of First Instance of Manila.
vs.
THE SOLICITOR GENERAL, EPIFANIO VILLEGAS, ARTURO The first was Civil Case No. 30823, instituted by the Spouses Alejandro
XAVIER, PONCIANO FERNANDO, ROSENDO DOMINGO and Katigbak and Mercedes Katigbak. In their complaint they prayed that: (1) the
LEONARDO LUCENA, defendants-appellees. Solicitor General be enjoined from filing a complaint against them for
forfeiture of property under the above mentioned R.A. No. 1379; (2) said
G.R. No. L-19329 December 22, 1989 statute be declared unconstitutional in so far as it authorizes forfeiture of
properties acquired before its approval, or, alternatively, a new preliminary
REPUBLIC OF THE PHILIPPINES, plaintiff-appellee, investigation of the complaint filed against Alejandro Katigbak by NBI
vs. officers be ordered; (3) properties acquired by Alejandro Katigbak when he
ALEJANDRO KATIGBAK and MERCEDES K. KATIGBAK defendants- was out of the government service be excluded from forfeiture proceedings;
appellants. and (4) the NBI officers and the Investigating Prosecutor (Leonardo Lucena)
be sentenced to pay damages.
Augusto Kalaw for plaintiffs-appellants.
The second action was Civil Case No. 31080, commenced by petition 4 filed
by the Republic of the Philippines against Alejandro Katigbak, his wife,
NARVASA, J.: Mercedes, and his son, Benedicto, seeking the forfeiture in favor of the State
of the properties of Alejandro Katigbak allegedly gotten by him illegally, in
These cases were certified to this Court by the Court of Appeals for resolution accordance with R.A. No. 1379. Said properties were allegedly acquired
on appeal, 1 since the central issue involved is the constitutionality of while Katigbak was holding various positions in the government, the last

507
being that of an examiner of the Bureau of Customs; and title to some of the
properties were supposedly recorded in the names of his wife and/or son.
The cases were jointly tried. The judgment thereafter rendered 5 (1)
dismissed the complaint and the counterclaim in Civil Case No. 30823, the
first action; and (2) as regards Civil Case No. 31080, ordered "that from the
properties (of Katigbak) enumerated in this decision as acquired in 1953,1954
and 1955, shall be enforced a lien in favor of the Government in the sum of
P100,000.00. 6 The judgment also declared that the "impatience of the
Investigating Prosecutor" during the preliminary inquiry into the charges
filed against Katigbak for violation of R.A. No. 1379 did not amount to such
arbitrariness as would justify annulment of the proceedings since, after all,
Katigbak was able to fully ventilate his side of the case in the trial court; 7
that R.A. No. 1379 is not penal in nature, its objective not being the
enforcement of a penal liability but the recovery of property held under an
implied trust; 8 that with respect to things acquired through delicts,
prescription does not run in favor of the offender; 9 that Alejandro Katigbak
may not be deemed to have been compelled to testify against his will since
he took the witness stand voluntarily. 10 The Katigbaks moved for
reconsideration and/or new trial. The Trial Court refused to grant a new trial
but modified its decision by reducing the amount of "P 100,000.00 in the
dispositive portion ... to P80,000.00." 11
Appeal was taken from this verdict of the Court of Appeals by the Katigbaks
which appeal, as earlier stated, was certified to this Court.
No less than 18 errors have been attributed by the Katigbaks to the Court a
quo. 12 They concern mainly the character of R.A. No. 1379 as an ex-post
facto law, principally because it imposes the penalty of forfeiture on a public
officer or employee acquiring properties allegedly in violation of said R.A.
No. 1379 at a time when that law had not yet been enacted. 13
Whatever persuasiveness might have been carried by the ruling on the issue
of the learned Trial Judge in 1961, the fact is that the nature of R.A. No. 1379
as penal was in 1962 clearly and categorically pronounced by this Court in
Cabal v. Kapunan, Jr. 14 Citing voluminous authorities, the Court in that case
declared that "forfeiture to the State of property of a public officer or
employee which is manifestly out of proportion to his salary as such ... and
his other lawful income and the income from legitimately acquired property
... has been held ... to partake of the nature of a penalty"; and that "proceedings
for forfeiture of property although technically civil in form are deemed
criminal or penal, and, hence, the exemption of defendants in criminal cases
from the obligation to be witnesses against, themselves is applicable thereto.
15 The doctrine was reaffirmed and reiterated in 1971 in republic v.
Agoncillo. 16 And germane is the 1977 ruling of the Court in de la Cruz v.
Better Living, Inc. 17 involving among others the issue of the validity and
enforceability of a written agreement alleged to be in violation of Republic
Act No. 3019, otherwise known as the Anti-Graft and Corrupt Practices-Act
to the effect that "the provisions of said law cannot be given retro active
effect."
The forfeiture of property provided for in Republic Act No. 1379 being in the
nature of a penalty; and it being axiomatic that a law is ex-post facto which
inter alia "makes criminal an act done before the passage of the law and which
was innocent when done, and punishes such an act," or, "assuming to regulate
civil rights and remedies only, in effect imposes a penalty or deprivation of a
right for something which when done was lawful," it follows that penalty of
forfeiture prescribed by R.A. No. 1379 cannot be applied to acquisitions
made prior to its passage without running afoul of the Constitutional
provision condemning ex post facto laws or bills of attainder. 18 But this is
precisely what has been done in the case of the Katigbaks. The Trial Court
declared certain of their acquisitions in 1953, 1954 and 1955 to be illegal
under R.A. No. 1379 although made prior to the enactment of the law, and
imposed a lien thereon "in favor of the Government in the sum of
P100,000.00." Such a disposition is, quite obviously, constitutionally
impermissible.
As to the issue of whether or not the Prosecuting Fiscal, Leonardo Lucena,
should be made answerable for damages because the filing of the forfeiture
proceedings, Civil Case No. 31080, resulted from a preliminary investigation
which was allegedly conducted by Fiscal Lucena in an arbitrary and
highhanded manner, suffice it to state that the trial court found no proof of
any intention to persecute or other ill motive underlying the institution of
Civil Case No. 31080. The trial court further found that during the
preliminary investigation by Fiscal Lucena on September 13, 19, 24, 25 and
26, 1956, Alejandro Katigbak was assisted by reputable and competent
counsel, Atty. Estanislao A. Fernandez and Atty. Antonio Carag. The mere
fact that the preliminary investigation was terminated against the objection of
Katigbak's counsel, does not necessarily signify that he was denied the right
to such an investigation. What is more, the Trial Court's factual conclusion
508
that no malice or bad faith attended the acts of public respondents complained
of, and consequently no award of damages is proper, cannot under established
rule be reviewed by this Court absent any showing of the existence of some
recognized exception thereto.

The foregoing pronouncements make unnecessary the determination of the

other issues. Present:

WHEREFORE, the judgment of the Court a quo, in so far as it pronounces

the acquisitions of property by the appellants illegal in accordance with
Republic Act No. 1379 and imposes a lien thereon in favor of the Government YNARES-SANTIAGO,
in the sum of P80,000.00 is hereby REVERSED AND SET ASIDE, but is
AFFIRMED in all other respects. No pronouncement as to costs. Acting C.J., Chairperson,

AUSTRIA-MARTINEZ,

ORLANDO L. SALVADOR, for and in behalf of the Presidential Ad Hoc CHICO-NAZARIO,

Fact-Finding Committee on Behest Loans,
NACHURA, and
Petitioner,
REYES, JJ.

- versus -
Promulgated:

PLACIDO L. MAPA, JR., RAFAEL A. SISON, ROLANDO M. ZOSA,

CESAR C. ZALAMEA, BENJAMIN BAROT, CASIMIRO TANEDO, J.V. November 28, 2007
DE OCAMPO, ALICIA L. REYES, BIENVENIDO R. TANTOCO, JR.,
BIENVENIDO R. TANTOCO, SR., FRANCIS B. BANES, ERNESTO M. x------------------------------------------------------------------------------------x
CARINGAL, ROMEO V. JACINTO, and MANUEL D. TANGLAO,

Respondents.

G.R. No. 135080

DECISION

509
NACHURA, J.: WHEREAS, there have been allegations of loans, guarantees, and other forms
of financial accommodations granted, directly or indirectly, by government-
owned and controlled bank or financial institutions, at the behest, command,
or urging by previous government officials to the disadvantage and detriment
of the Philippines government and the Filipino people;

ACCORDINGLY, an Ad-Hoc FACT FINDING COMMITTEE ON

BEHEST LOANS is hereby created to be composed of the following:

The Presidential Ad Hoc Fact-Finding Committee on Behest Loans, (the

Committee), through Atty. Orlando L. Salvador (Atty. Salvador), filed this
Petition for Review on Certiorari seeking to nullify the October 9, 1997 Chairman of the Presidential
Resolution[1] of the Office of the Ombudsman in OMB-0-96-2428,
dismissing the criminal complaint against respondents on ground of Commission on Good Government - Chairman
prescription, and the July 27, 1998 Order[2] denying petitioners motion for
reconsideration.

The Solicitor General - Vice-Chairman

On October 8, 1992 then President Fidel V. Ramos issued Administrative
Order No. 13 creating the Presidential Ad Hoc Fact-Finding Committee on
Behest Loans, which reads:
Representative from the

Office of the Executive Secretary - Member

WHEREAS, Sec. 28, Article II of the 1987 Constitution provides that 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; Representative from the

Department of Finance - Member

WHEREAS, Sec. 15, Article XI of the 1987 Constitution provides that The
right of the state to recover properties unlawfully acquired by public officials
or employees, from them or from their nominees or transferees, shall not be Representative from the
barred by prescription, laches or estoppel;
Department of Justice - Member

510
 persons responsible for granting the loans or who influenced the grant
Representative from the thereof;

Development Bank of the Philippines - Member

2. Identify the borrowers who were granted friendly waivers, as well as

the government officials who granted these waivers; determine the validity
of these waivers;

Representative from the

Philippine National Bank - Member 3. Determine the courses of action that the government should take to
recover those loans, and to recommend appropriate actions to the Office of
the President within sixty (60) days from the date hereof.

Representative from the

Asset Privatization Trust - Member The Committee is hereby empowered to call upon any department, bureau,
office, agency, instrumentality or corporation of the government, or any
officer or employee thereof, for such assistance as it may need in the
discharge of its functions.[3]
Government Corporate Counsel - Member

Representative from the

By Memorandum Order No. 61 dated November 9, 1992, the functions of the
Philippine Export and Foreign Committee were subsequently expanded, viz.:

Loan Guarantee Corporation - Member

WHEREAS, among the underlying purposes for the creation of the Ad Hoc
Fact-Finding Committee on Behest Loans is to facilitate the collection and
The Ad Hoc Committee shall perform the following functions: recovery of defaulted loans owing government-owned and controlled
banking and/or financing institutions;

1. Inventory all behest loans; identify the lenders and borrowers, including
the principal officers and stockholders of the borrowing firms, as well as the

511
WHEREAS, this end may be better served by broadening the scope of the 5. Deviation of use of loan proceeds from the purpose intended;
fact-finding mission of the Committee to include all non-performing loans
which shall embrace behest and non-behest loans;

6. Use of corporate layering;

NOW THEREFORE, I, FIDEL V. RAMOS, President of the Republic of the

Philippines, by virtue of the power vested in me by law, do hereby order:
7. Non-feasibility of the project for which financing is being sought; and

Sec. 1. The Ad Hoc Fact-Finding Committee on Behest Loans shall include

in its investigation, inventory, and study, all non-performing loans which 8. Extraordinary speed in which the loan release was made.
shall embrace both behest and non-behest loans:

Moreover, a behest loan may be distinguished from a non-behest loan in that

The following criteria may be utilized as a frame of reference in determining while both may involve civil liability for non-payment or non-recovery, the
a behest loan: former may likewise entail criminal liability.[4]

1. It is under-collateralized;

Several loan accounts were referred to the Committee for investigation,

including the loan transactions between Metals Exploration Asia, Inc.
2. The borrower corporation is undercapitalized; (MEA), now Philippine Eagle Mines, Inc. (PEMI) and the Development Bank
of the Philippines (DBP).

3. Direct or indirect endorsement by high government officials like

presence of marginal notes; After examining and studying the documents relative to the loan transactions,
the Committee determined that they bore the characteristics of behest loans,
as defined under Memorandum Order No. 61 because the stockholders and
officers of PEMI were known cronies of then President Ferdinand Marcos;
4. Stockholders, officers or agents of the borrower corporation are the loan was under-collateralized; and PEMI was undercapitalized at the time
identified as cronies; the loan was granted.

512
Specifically, the investigation revealed that in 1978, PEMI applied for a
foreign currency loan and bank investment on its preferred shares with DBP.
The loan application was approved on April 25, 1979 per Board Resolution
(B/R) No. 1297, but the loan was never released because PEMI failed to
comply with the conditions imposed by DBP. To accommodate PEMI, DBP
subsequently adopted B/R No. 2315 dated June 1980, amending B/R No.
1297, authorizing the release of PEMIs foreign currency loan proceeds, and
even increasing the same. Per B/R No. 95 dated October 16, 1980, PEMI was
granted a foreign currency loan of $19,680,267.00 or P146,601,979.00, and
it was released despite non-compliance with the conditions imposed by DBP.
The Committee claimed that the loan had no sufficient collaterals and PEMI
had no sufficient capital at that time because its acquired assets were only
valued at P72,045,700.00, and its paid up capital was only P46,488,834.00.
Consequently, Atty. Orlando L. Salvador, Consultant of the Fact-Finding
Committee, and representing the Presidential Commission on Good
Government (PCGG), filed with the Office of the Ombudsman (Ombudsman)
a sworn complaint for violation of Sections 3(e) and (g) of Republic Act No.
3019, or the Anti-Graft and Corrupt Practices Act, against the respondents
Placido I. Mapa, Jr., Rafael A. Sison; Rolando M. Zosa; Cesar C. Zalamea;
Benjamin Barot, Casimiro Tanedo, J.V. de Ocampo, Bienvenido R. Tantoco,
Jr., Francis B. Banes, Ernesto M. Caringal, Romeo V. Jacinto, Manuel D.
Tanglao and Alicia Ll. Reyes.[5]
After considering the Committees allegation, the Ombudsman handed down
the assailed Resolution,[6] dismissing the complaint. The Ombudsman
conceded that there was ground to proceed with the conduct of preliminary
investigation. Nonetheless, it dismissed the complaint holding that the
offenses charged had already prescribed, viz.:
[W]hile apparently, PEMI was undercapitalized at the time the subject loans
were entered into; the financial accommodations were undercollateralized at
the time they were granted; the stockholders and officers of the borrower
corporation are identified cronies of then President Marcos; and the release
of the said loans was made despite non-compliance by PEMI of the
conditions attached therewith, which consequently give a semblance that the
subject Foreign Currency Loans are indeed Behest Loans, the prosecution of
the offenses charged cannot, at this point, prosper on grounds of prescription.
It bears to stress that Section 11 of R.A. No. 3019 as originally enacted,
provides that the prescriptive period for violations of the said Act (R.A. 3019)
is ten (10) years. Subsequently, BP 195, enacted on March 16, 1982, amended
the period of prescription from ten (10) years to fifteen (15) years
Moreover as enunciated in [the] case of People vs. Sandiganbayan, 211
SCRA 241, the computation of the prescriptive period of a crime violating a
special law like R.A. 3019 is governed by Act No. 3326 which provides, thus:
xxxx
Section 2. Prescription shall begin to run from the day of the commission of
the violation of law, and if the same be not known at the time, from the
discovery thereof and the institution of the judicial proceedings for its
investigation and punishment.
The prescription shall be interrupted when the proceedings are instituted
against the guilty person, and shall begin to run again if the proceedings are
dismissed for reasons not constituting jeopardy.
Corollary thereto, the Supreme Court in the case of People vs. Dinsay, C.A.
40 O.G. 12th Supp., 50, ruled that when there is nothing which was concealed
or needed to be discovered because the entire series of transactions were by
513
public instruments, the period of prescription commenced to run from the
date the said instrument were executed.
The aforesaid principle was further elucidated in the cases of People vs.
Sandiganbayan, 211 SCRA 241, 1992, and People vs. Villalon, 192 SCRA
521, 1990, where the Supreme Court pronounced that when the transactions
are contained in public documents and the execution thereof gave rise to
unlawful acts, the violation of the law commences therefrom. Thus, the
reckoning period for purposes of prescription shall begin to run from the time
the public instruments came into existence.
To reiterate, the Presidential Ad Hoc Committee on Behest Loans was created
on October 8, 1992 under Administrative Order No. 13. Subsequently,
Memorandum Order No. 61, dated November 9, 1992, was issued defining
the criteria to be utilized as a frame of reference in determining behest loans.
Accordingly, if these Orders are to be considered the bases of charging
respondents for alleged offenses committed, they become ex-post facto laws
which are proscribed by the Constitution. The Supreme Court in the case of
People v. Sandiganbayan, supra, citing Wilensky V. Fields, Fla, 267 So 2dl,
5, held that an ex-post facto law is defined as a law which provides for
infliction of punishment upon a person for an act done which when it was
committed, was innocent.[7]

In the case at bar, the subject financial accommodations were entered into by
virtue of public documents (e.g., notarized contracts, board resolutions,
approved letter-request) during the period of 1978 to 1981 and for purposes Thus, the Ombudsman disposed:
of computing the prescriptive period, the aforementioned principles in the
Dinsay, Villalon and Sandiganbayan cases will apply. Records show that the
complaint was referred and filed with this Office on October 4, 1996 or after
the lapse of more than fifteen (15) years from the violation of the law. WHEREFORE, premises considered, it is hereby respectfully recommended
[Deductibly] therefore, the offenses charged had already prescribed or that the instant case be DISMISSED.
forever barred by Statute of Limitations.

SO RESOLVED.[8]
It bears mention that the acts complained of were committed before the
issuance of BP 195 on March 2, 1982. Hence, the prescriptive period in the
instant case is ten (10) years as provided in the (sic) Section 11 of R.A. 3019,
as originally enacted.

The Committee filed a Motion for Reconsideration, but the Ombudsman

denied it on July 27, 1998.
Equally important to stress is that the subject financial transactions between
1978 and 1981 transpired at the time when there was yet no Presidential Order
or Directive naming, classifying or categorizing them as Behest or Non-
Behest Loans. Hence, this petition positing these issues:

514

A. WHETHER OR NOT THE CRIME DEFINED BY SEC. 3(e) AND (g)
OF R.A. 3019 HAS ALREADY PRESCRIBED AT THE TIME THE
PETITIONER FILED ITS COMPLAINT.
B. WHETHER OR NOT ADMINISTRATIVE ORDER NO. 13 AND
MEMORANDUM ORDER NO. 61 ARE EX-POST FACTO LAW[S].[9]
The Court shall deal first with the procedural issue.
Commenting on the petition, Tantoco, Reyes, Mapa, Zalamea and Caringal
argued that the petition suffers from a procedural infirmity which warrants its
dismissal. They claimed that the PCGG availed of the wrong remedy in
elevating the case to this Court.
Indeed, what was filed before this Court is a petition captioned as Petition for
Review on Certiorari. We have ruled, time and again, that a petition for
review on certiorari is not the proper mode by which resolutions of the
Ombudsman in preliminary investigations of criminal cases are reviewed by
this Court. The remedy from the adverse resolution of the Ombudsman is a
petition for certiorari under Rule 65,[10] not a petition for review on certiorari
under Rule 45.
However, though captioned as a Petition for Review on Certiorari, we will
treat this petition as one filed under Rule 65 since a reading of its contents
reveals that petitioner imputes grave abuse of discretion to the Ombudsman
for dismissing the complaint. The averments in the complaint, not the
nomenclature given by the parties, determine the nature of the action.[11] In
previous rulings, we have treated differently labeled actions as special civil
actions for certiorari under Rule 65 for reasons such as justice, equity, and
fair play.[12]
Having resolved the procedural issue, we proceed to the merits of the case.
As the Committee puts it, the issues to be resolved are: (i) whether or not the
offenses subject of its criminal complaint have prescribed, and (ii) whether
Administrative Order No. 13 and Memorandum Order No. 61 are ex post
facto laws.
The issue of prescription has long been settled by this Court in Presidential
Ad Hoc Fact-Finding Committee on Behest Loans v. Desierto,[13] thus:
[I]t is well-nigh impossible for the State, the aggrieved party, to have known
the violations of R.A. No. 3019 at the time the questioned transactions were
made because, as alleged, the public officials concerned connived or
conspired with the beneficiaries of the loans. Thus, we agree with the
COMMITTEE that the prescriptive period for the offenses with which the
respondents in OMB-0-96-0968 were charged should be computed from the
discovery of the commission thereof and not from the day of such
commission.[14]
The ruling was reiterated in Presidential Ad Hoc Fact-Finding Committee on
Behest Loans v. Ombudsman Desierto,[15] wherein the Court explained:
515
In cases involving violations of R.A. No. 3019 committed prior to the
February 1986 EDSA Revolution that ousted President Ferdinand E. Marcos,
we ruled that the government as the aggrieved party could not have known of
the violations at the time the questioned transactions were made. Moreover,
no person would have dared to question the legality of those transactions.
Thus, the counting of the prescriptive period commenced from the date of
discovery of the offense in 1992 after an exhaustive investigation by the
Presidential Ad Hoc Committee on Behest Loans.[16]
This is now a well-settled doctrine which the Court has applied in subsequent
cases involving the PCGG and the Ombudsman.[17]
Since the prescriptive period commenced to run on the date of the discovery
of the offenses, and since discovery could not have been made earlier than
October 8, 1992, the date when the Committee was created, the criminal
offenses allegedly committed by the respondents had not yet prescribed when
the complaint was filed on October 4, 1996.
Even the Ombudsman, in its Manifestation & Motion (In Lieu of
Comment),[18] conceded that the prescriptive period commenced from the
date the Committee discovered the crime, and not from the date the loan
documents were registered with the Register of Deeds. As a matter of fact, it
requested that the record of the case be referred back to the Ombudsman for
a proper evaluation of its merit.
Likewise, we cannot sustain the Ombudsmans declaration that
Administrative Order No. 13 and Memorandum Order No. 61 violate the
prohibition against ex post facto laws for ostensibly inflicting punishment
upon a person for an act done prior to their issuance and which was innocent
when done.
The constitutionality of laws is presumed. To justify nullification of a law,
there must be a clear and unequivocal breach of the Constitution, not a
doubtful or arguable implication; a law shall not be declared invalid unless
the conflict with the Constitution is clear beyond reasonable doubt. The
presumption is always in favor of constitutionality. To doubt is to sustain.[19]
Even this Court does not decide a question of constitutional dimension, unless
that question is properly raised and presented in an appropriate case and is
necessary to a determination of the case, i.e., the issue of constitutionality
must be the very lis mota presented.[20]
Furthermore, in Estarija v. Ranada,[21] where the petitioner raised the issue
of constitutionality of Republic Act No. 6770 in his motion for
reconsideration of the Ombudsmans decision, we had occasion to state that
the Ombudsman had no jurisdiction to entertain questions on the
constitutionality of a law. The Ombudsman, therefore, acted in excess of its
jurisdiction in declaring unconstitutional the subject administrative and
memorandum orders.
In any event, we hold that Administrative Order No. 13 and Memorandum
Order No. 61 are not ex post facto laws.
An ex post facto law has been defined as one (a) which makes an action done
before the passing of the law and which was innocent when done criminal,
and punishes such action; or (b) which aggravates a crime or makes it greater
than it was when committed; or (c) which changes the punishment and inflicts
a greater punishment than the law annexed to the crime when it was
committed; or (d) which alters the legal rules of evidence and receives less or
different testimony than the law required at the time of the commission of the
offense in order to convict the defendant.[22] This Court added two (2) more
to the list, namely: (e) that which assumes to regulate civil rights and remedies
only but in effect imposes a penalty or deprivation of a right which when done
516
was lawful; or (f) that which deprives a person accused of a crime of some
lawful protection to which he has become entitled, such as the protection of
a former conviction or acquittal, or a proclamation of amnesty.[23]

SO ORDERED.

The constitutional doctrine that outlaws an ex post facto law generally

prohibits the retrospectivity of penal laws. Penal laws are those acts of the
legislature which prohibit certain acts and establish penalties for their
violations; or those that define crimes, treat of their nature, and provide for
their punishment.[24] The subject administrative and memorandum orders
clearly do not come within the shadow of this definition. Administrative
Order No. 13 creates the Presidential Ad Hoc Fact-Finding Committee on
Behest Loans, and provides for its composition and functions. It does not
mete out penalty for the act of granting behest loans. Memorandum Order
No. 61 merely provides a frame of reference for determining behest loans.
Not being penal laws, Administrative Order No. 13 and Memorandum Order
No. 61 cannot be characterized as ex post facto laws. There is, therefore, no
basis for the Ombudsman to rule that the subject administrative and
memorandum orders are ex post facto.

One final note. Respondents Mapa and Zalamea, in their respective

comments, moved for the dismissal of the case against them. Mapa claims
that he was granted transactional immunity from all PCGG-initiated
cases,[25] while Zalamea denied participation in the approval of the subject
loans.[26] The arguments advanced by Mapa and Zalamea are matters of
defense which should be raised in their respective counter-affidavits. Since
the Ombudsman erroneously dismissed the complaint on ground of
prescription, respondents respective defenses were never passed upon during
the preliminary investigation. Thus, the complaint should be referred back to
the Ombudsman for proper evaluation of its merit.

WHEREFORE, the petition is GRANTED. The assailed Resolution and

Order of the Office of Ombudsman in OMB-0-96-2428, are SET ASIDE. The
Office of the Ombudsman is directed to conduct with dispatch an evaluation
of the merits of the complaint against the herein respondents.

517

[G.R. No. 95523. August 18, 1997]
REYNALDO GONZALES y RIVERA, petitioner, vs. HONORABLE
COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, respondents.
DECISION
ROMERO, J.:
The new law, Republic Act No. 8294,[1] approved barely two months ago
(June 6, 1997) which has lowered the penalty for illegal possession of
firearms finds application in instant case to favor the accused so as to
immediately release him from jail where he has already served nine (9) years,
nine (9) months and twenty-three (23) days, which is well beyond the
maximum penalty now imposed for his offense. Whereas prior to the passage
of this law, the crime of simple illegal possession of firearms was penalized
with reclusion temporal in its maximum period to reclusion perpetua,[2] after
its enactment, the penalty has been reduced to prision correccional in its
maximum period and a fine of not less than Fifteen Thousand Pesos
(P15,000.00).[3]
Being favorable to the accused, this newly-enacted law constitutes an
exception to the fundamental doctrine that laws should be applied
prospectively. Further applying the Indeterminate Sentence Law, petitioner
should be penalized with four (4) years, two (2) months and one (1) day as
minimum, to six (6) years as maximum. Petitioner, therefore, holds the
distinction of being the first beneficiary of this reduced penalty to favor him
with its retroactive application.
The following recital of facts constitutes the backdrop for the application of
the new law.
Two separate informations were filed against petitioner Reynaldo Gonzales
y Rivera involving the crimes of attempted homicide and violation of
Presidential Decree No. 1866.
The Information for Attempted Homicide reads as follows:
The undersigned Provincial Fiscal accuses Reynaldo Gonzales y Rivera of
the crime of attempted homicide, penalized under the provisions of Article
249 in connection with Article 51 of the Revised Penal Code, committed as
follows:
That on or about the 20th day of May, 1984, in the municipality of San
Ildefonso, province of Bulacan, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, armed with a gun (Revolver,
Caliber .22, Paltik) and with intent to kill one Jaime Verde, did then and there
wilfully, unlawfully and feloniously commenced the commission of
homicide directly by overt acts, by then and there shooting with the said gun
the said Jaime Verde, and if the said accused did not accomplish his purpose,
that is, to kill the said Jaime Verde, it was not because of his spontaneous
desistance, but the shot missed him and instead hit the ground.
Contrary to law.
The Information for violation of P.D. No. 1866 reads:
The undersigned Provincial Fiscal accuses Reynaldo Gonzales y Rivera of
the crime of illegal possession of firearm, penalized under Presidential
Decree No. 1866, committed as follows:
518
That on or about the 20th day of May, 1984, in the municipality of San
Ildefonso, province of Bulacan, Philippines, and within the jurisdiction of this
Honorable Court, the said accused Reynaldo Gonzales y Rivera, did then and
there wilfully, unlawfully, and feloniously have in his possession and control
one (1) Revolver, Caliber .22 (Paltik, without first obtaining the proper
license or authority therefor).
Contrary to law.
A plea of not guilty having been entered, trial on the merits ensued.
The case for the prosecution is as follows:
On May 20, 1984, Jaime, Dionisio, and Zenaida all surnamed Verde were in
front of their house when, at about six oclock in the evening, petitioner
Reynaldo Gonzales and a certain Bening Paguia arrived in the premises.
Without any provocation, petitioner started to hurl invectives at Zenaida and
pushed her. Surprised at the unprovoked attack, Jaime tried to restrain the
petitioner but instead of allowing himself to be subdued, the latter turned on
the former. Pulling out his gun, he fired the same at Jaime but missed his
mark. The incident was thereafter reported to the police authorities which
conducted a paraffin test that showed that petitioners right hand was positive
for gunpowder residue.
On the other hand, the version of the defense was as follows:
Petitioner testified that on the said date and time, he was with his barrio mates
when suddenly, a commotion attracted their attention. They saw a group of
persons chasing an unidentified person who was running towards their
direction with a gun in hand while the mob was shouting Harangin. During
the chase, the unidentified person accidentally fell and dropped the gun he
was holding which petitioner then grabbed.
The fleeing person hastily boarded a passing bus. It was at this point that the
Verdes, who turned out to be the persons giving chase, demanded the gun
from the petitioner who, however, refused to surrender the same, as a result
of which, a scuffle ensued during which the gun accidentally went off without
hitting anybody.
After trial, the court a quo acquitted the petitioner of the offense of attempted
homicide but found him guilty of the offense of illegal possession of firearm,
the dispositive portion of which reads:[4]
WHEREFORE, premises considered, for failure of the prosecution to prove
the guilt of Reynaldo Gonzales beyond reasonable doubt of the charge for
Attempted Homicide, he is hereby acquitted of the crime charged.
With respect to the charge of Illegal Possession of Firearms, the Court finds
the accused guilty beyond reasonable doubt and hereby sentences him to a
penalty ranging from 17 years, 4 months, 1 day to 18 years, 8 months of
Reclusion Temporal, without pronouncement as to costs.
Upon appeal to the Court of Appeals, the petitioner asserted that the trial court
erred in not giving credence to the defenses narration of the incident and his
guilt has not been proven beyond reasonable doubt. This argument did not
persuade the appellate court as it held that:[5]
Indeed, as correctly found by the trial court, the appellant did not grab the
revolver (paltik) in question (Exhibit A) from the unidentified person that he
said. He drew it from his pocket and intentionally fired it at Jaime Verde but
missed him. He was, therefore, in possession of it. And since it was a paltik
for which no license to possess may be issued (People vs. Fajardo, 17 SCRA
494), he is guilty of illegal possession of firearm under Presidential Decree
No. 1866. Accordingly, the trial court did not commit any error in finding
him guilty as charged.
In the instant petition, petitioner assigns the following errors to the trial court:
1. There is in this case material and substantial conflict between the version
of the prosecution and that of the defense that would lead a reasonable mind
to believe the improbability of the version of the prosecution.
2. Respondent Court of Appeals committed a grave and serious error of law
in not finding/holding that the prosecution miserably failed to establish the
motive that would support the version of the prosecution.
3. Petitioner was not aware of any preliminary investigation that would create
any inference adverse to his innocence.
519
4. The prosecution in this case failed to prove the guilt of the petitioner
beyond reasonable doubt. Hence, the latter is entitled to acquittal.
We affirm the findings of the trial court and the Court of Appeals.
The main thesis of petitioners defense is that he inadvertently picked up the
gun accidentally dropped by an unidentified person who was being chased by
the Verdes. Thus, he cannot be convicted for illegal possession of firearm.
Completely contradicting petitioners version, we quote with approval the trial
courts finding:[6]
The testimony that the gun came from the unarmed (should be unidentified)
person who fell in front of him while being chased is again hard to believe.
The natural reaction of a person being chased in a hostile place is to remove
hindrances along his way. If he had a gun, as the accused would want the
court to believe, he could have used it against all persons who would block
his way since there were shouts harangin, harangin. On the other hand, the
actuation of the accused is contrary to common observation and experience.
No person in his right mind would approach a person holding a gun being
chased and there were shouts harangin, harangin.
In addition, petitioners narration is not in conformity with human experience
and reactions. We likewise note the incredible assertion of the petitioner that
the unidentified person, after tripping and dropping the gun, was able to board
a slow moving bus without even attempting to retrieve his weapon. Such a
hollow tale hardly commends itself to our mind.
Also, petitioner bewails the fact that no preliminary investigation was
conducted. While the right to preliminary investigation is one that is
statutorily granted and not mandated by the Constitution, still it is a
component part of due process in criminal justice[7] that may not be treated
lightly, let alone ignored. It has been consistently held, however, that its
absence does not impair the validity of the criminal information or render it
defective. In any case, dismissal of the case is not the remedy.[8] It is
incumbent on the trial court to hold in abeyance the proceedings upon such
information and to remand the case to the fiscal to conduct a preliminary
investigation if the accused actually makes out a case justifying the same.[9]
Conversely, it is a well-settled rule that the right to a preliminary investigation
may be waived by the failure to invoke it prior to or at least at the time of the
accuseds plea.[10] Thus, when the petitioner entered a plea to the charge,[11]
he is deemed to have waived the right to preliminary investigation.[12]
Having set aside the procedural aspect of this petition, we now proceed to
determine whether the petitioner is indeed guilty of the offense of illegal
possession of firearm.
In cases involving illegal possession of firearm, there are certain well-
established principles, namely: (a) the existence of the subject firearm and (b)
the fact that the accused who owned or possessed the firearm does not have
the corresponding license or permit to possess.[13] The first requisite is
beyond dispute as the subject firearm was recovered, identified and offered
in evidence during trial.[14] With respect to the second requisite, the same
was undisputably proven by the prosecution. The unvarying rule is that
ownership is not an essential element of illegal possession of firearms and
ammunition. What the law requires is merely possession which includes, not
only actual physical possession, but also constructive possession or the
subjection of the thing to ones control and management.[15]
In the instant petition, there is no doubt that the petitioner is indeed guilty of
having intentionally possessed an unlicensed firearm. The testimony of the
petitioner that he came into possession of the firearm only after a scuffle, is a
lame defense which cannot overcome the solid evidence presented by the
prosecution proving his guilt beyond reasonable doubt. On this score, we note
that a prosecution witness testified that petitioner pulled the gun from his
waist and fired a shot aimed at Jaime Verdes foot.[16]
Thus, we have no reservations in affirming petitioners conviction since we
find no compelling reason to depart from the factual findings of both the trial
court and the respondent appellate court which are, as a rule, accorded great
respect and finality.[17]
As regards the penalty imposed by the trial court and affirmed by the
appellate court (17 years, 4 months, 1 day to 18 years, 8 months of reclusion
temporal), we reduce the same in view of the passage of R.A. No. 8294
wherein the penalty for simple illegal possession of firearms has been
lowered. Since it is an elementary rule in criminal jurisprudence that penal
laws shall be given retroactive effect when favorable to the accused,[18] we
520
are now mandated to apply the new law in determining the proper penalty to
be imposed on the petitioner.

While prior to the passage of R.A. No. 8294, the crime of simple illegal
possession of firearm was penalized with reclusion temporal in its maximum
period to reclusion perpetua, after its enactment, the penalty was reduced to
prision correccional in its maximum period and a fine of not less than Fifteen
Thousand Pesos (P15,000.00).

Accordingly, applying the Indeterminate Sentence Law, the principal penalty

for the offense of simple illegal possession of firearm is four (4) years and
two (2) months as minimum, to six (6) years, as maximum[19] and a fine of
P15,000.00. Consistent with the doctrine that an appeal in a criminal case
throws the whole case open for review, the appellate court may, applying the
new law, additionally impose a fine, which if unpaid, will subject the convict
to subsidiary imprisonment, pursuant to Art. 39 of the Revised Penal
Code.[20]

WHEREFORE, the decision of the Court of Appeals sustaining petitioners

conviction by the lower court of the crime of simple illegal possession of
firearm is AFFIRMED, with the MODIFICATION that the penalty is reduced
to four (4) years and two (2) months, as minimum, to six (6) years, as
maximum.

Since the petitioner has already served nine (9) years, nine (9) months and
twenty-three (23) days, which is well beyond the maximum principal penalty
imposed for his offense, as well as the subsidiary penalty for the unpaid fine,
he is hereby ordered RELEASED immediately, unless he is being held for
some other lawful cause.

521
 THE PEOPLE OF THE Promulgated:

PHILIPPINES,

Respondent. February 22, 2008

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

DECISION

REYES, R.T., J.:

SR. INSP. JERRY C. VALEROSO, G.R. No. 164815

THE law looks forward, never backward. Lex prospicit, non respicit. A new
Petitioner, law has a prospective, not retroactive, effect.[1] However, penal laws that
favor a guilty person, who is not a habitual criminal, shall be given retroactive
Present: effect.1-a These are the rule, the exception and exception to the exception on
effectivity of laws.

YNARES-SANTIAGO, J.,

Chairperson, Ang batas ay tumitingin sa hinaharap, hindi sa nakaraan. Gayunpaman, ang

parusa ng bagong batas ay iiral kung ito ay pabor sa taong nagkasala na hindi
- versus - AUSTRIA-MARTINEZ, pusakal na kriminal.

CHICO-NAZARIO,

NACHURA, and We apply the exception rather than the rule in this petition for review on
certiorari of the decision of the Court of Appeals (CA), affirming with
REYES, JJ. modification that of the Regional Trial Court (RTC) in Quezon City, finding
petitioner liable for illegal possession of a firearm.

522
 Petitioner was then charged with illegal possession of firearm and
The Facts ammunition under Presidential Decree (P.D.) No. 1866,[17] as amended. The
Information read:

On July 10, 1996, at around 9:30 a.m., SPO2 Antonio M. Disuanco of the
Criminal Investigation Division, Central Police District Command, received
a dispatch order[2] from the desk officer.[3] The order directed him and three
(3) other policemen to serve a warrant of arrest[4] issued by Judge Ignacio
Salvador against petitioner Sr. Insp. Jerry C. Valeroso in a case for
kidnapping with ransom.[5]
That on or about the 10th day of July, 1996, in Quezon City, Philippines, the
said accused without any authority of law, did then and there willfully,
unlawfully and knowingly have in his/her possession and under his/her
custody and control

After a briefing, the team conducted the necessary surveillance on petitioner, One (1) cal. 38 Charter Arms revolver bearing Serial No. 52315 with five (5)
checking his hideouts in Cavite, Caloocan, and Bulacan.[6] Eventually, the live ammo.
team proceeded to the Integrated National Police (INP) Central Station at
Culiat, Quezon City, where they saw petitioner as he was about to board a
tricycle.[7] SPO2 Disuanco and his team approached petitioner.[8] They put
him under arrest, informed him of his constitutional rights, and bodily without first having secured the necessary license/permit issued by the proper
searched him.[9] Found tucked in his waist[10] was a Charter Arms, bearing authorities.
Serial Number 52315[11] with five (5) live ammunition.[12]

CONTRARY TO LAW.
Petitioner was then brought to the police station for questioning.[13]

A verification of the subject firearm at the Firearms and Explosives Division

at Camp Crame revealed that it was not issued to petitioner but to a certain
Raul Palencia Salvatierra of Sampaloc, Manila.[14] Epifanio Deriquito, the
records verifier, presented a certification[15] to that effect signed by Edwin
C. Roque, chief records officer of the Firearms and Explosive Division.[16]
Quezon City, Philippines, July 15, 1996.

(Sgd.)

523

GLORIA VICTORIA C. YAP
Assistant City Prosecutor[18]
With the assistance of his counsel de parte, Atty. Oscar Pagulayan, petitioner
pleaded not guilty when arraigned on October 9, 1996.[19] Trial on the merits
ensued.
SPO2 Disuanco and Deriquito testified for the prosecution in the manner
stated above.
Upon the other hand, the defense version was supplied by the combined
testimonies of petitioner Sr. Insp. Jerry C. Valeroso, SPO3 Agustin R.
Timbol, Jr. and Adrian Yuson.
Petitioner recounted that on July 10, 1996, he was fast asleep in the boarding
house of his children located at Sagana Homes, Barangay New Era, Quezon
City.[20] He was roused from his slumber when four (4) heavily armed men
in civilian clothes bolted the room.[21] They trained their guns at him[22]
and pulled him out of the room. They then tied his hands and placed him near
the faucet.[23] The raiding team went back inside and searched and ransacked
the room.[24] SPO2 Disuanco stood guard outside with him.[25] Moments
later, an operative came out of the room and exclaimed, Hoy, may nakuha
akong baril sa loob![26]
Petitioner was told by SPO2 Disuanco that we are authorized to shoot you
because theres a shoot to kill order against you, so if you are planning do so
something, do it right now.[27] He was also told that there was a standing
warrant for his arrest.[28] However, he was not shown any proof when he
asked for it.[29] Neither was the raiding group armed with a valid search
warrant.[30]
According to petitioner, the search done in the boarding house was illegal.
The gun seized from him was duly licensed and covered by necessary
permits. He was, however, unable to present the documentation relative to
the firearm because it was confiscated by the police. Petitioner further
lamented that when he was incarcerated, he was not allowed to engage the
services of a counsel. Neither was he allowed to see or talk to his family.[31]
Petitioner contended that the police had an axe to grind against him. While
still with the Narcotics Command, he turned down a request of Col. Romulo
Sales to white-wash a drug-related investigation involving friends of the said
police officer. Col. Sales was likewise subject of a complaint filed with the
Ombudsman by his wife. Col. Sales was later on appointed as the head of the
unit that conducted the search in his boarding house.[32]
SPO3 Timbol, Jr. of the Narcotics Command testified that he issued to
petitioner a Memorandum Receipt dated July 1, 1993[33] covering the
subject firearm and its ammunition. This was upon the verbal instruction of
Col. Angelito Moreno. SPO3 Timbol identified his signature[34] on the said
receipt.[35]
Adrian Yuson, an occupant of the room adjacent to where petitioner was
arrested, testified that on July 10, 1996, two (2) policemen suddenly entered
his room as he was preparing for school.[36] They grabbed his shoulder and
led him out.[37] During all those times, a gun was poked at him.[38] He was
asked where petitioner was staying. Fearing for his life, he pointed to
petitioners room.[39]
524
Four (4) policemen then entered the room.[40] He witnessed how they
pointed a gun at petitioner, who was clad only in his underwear.[41] He also Petitioner moved to reconsider[47] but his motion was denied on August 27,
witnessed how they forcibly brought petitioner out of his room.[42] While a 1998.[48] He appealed to the CA.
policeman remained near the faucet to guard petitioner, three (3) others went
back inside the room.[43] They began searching the whole place. They
forcibly opened his locker,[44] which yielded the subject firearm.[45]
On May 4, 2004, the appellate court affirmed with modification the RTC
disposition. The fallo of the CA decision reads:

RTC and CA Dispositions

Verily, the penalty imposed by the trial court upon the accused-appellant is
On May 6, 1998, the trial court found petitioner guilty as charged, disposing modified to 4 years and 2 months as minimum up to 6 years as maximum.
as follows:

WHEREFORE, with the foregoing MODIFICATION as to the penalty, the

WHEREFORE, the Court hereby finds the accused guilty beyond reasonable decision appealed from is hereby AFFIRMED in all other respects.
doubt of Violation of Section 1 of Presidential Decree No. 1866 as amended
by Republic Act No. 8294 and hereby sentences him to suffer the penalty of
prision correccional in its maximum period or from 4 years, 2 months and 1
day as minimum to 6 years as maximum and to pay the fine in the amount of SO ORDERED.[49]
Fifteen Thousand Pesos (P15,000.00).

His motion for reconsideration[50] having been denied through a Resolution

The gun subject of this case is hereby ordered confiscated in favor of the dated August 3, 2004,[51] petitioner resorted to the present petition under
government. Let the same be put in trust in the hands of the Chief of the PNP. Rule 45.

SO ORDERED.[46] Issues

Petitioner raises the following issues for Our consideration:

525
I. THE HONORABLE COURT OF APPEALS COMMITTED SERIOUS The existence of the subject firearm and its ammunition was established
ERRORS OF LAW IN AFFIRMING THE CONVICTION OF through the testimony of SPO2 Disuanco.[54] Defense witness Yuson also
PETITIONER DESPITE THE ABSENCE OF PROOF BEYOND identified the firearm.[55] Its existence was likewise admitted by no less than
REASONABLE DOUBT. petitioner himself.[56]

II. THE HONORABLE COURT OF APPEALS COMMITTED SERIOUS As for petitioners lack of authority to possess the firearm, Deriquito testified
ERRORS OF FACT AND LAW IN SUSTAINING THE LEGALITY OF that a verification of the Charter Arms Caliber .38 bearing Serial No. 52315
THE SEARCH AND THE VALIDITY AND ADMISSIBILITY OF THE with the Firearms and Explosives Division at Camp Crame revealed that the
EVIDENCE OBTAINED THEREFROM DESPITE THE seized pistol was not issued to petitioner. It was registered in the name of a
OVERWHELMING PROOF THAT THE SAME IS THE FRUIT OF THE certain Raul Palencia Salvatierra of Sampaloc, Manila.[57] As proof,
POISONOUS TREE. Deriquito presented a certification signed by Roque, the chief records officer
of the same office.[58]

III. THE HONORABLE COURT OF APPEALS COMMITTED SERIOUS

ERRORS OF LAW IN NOT UPHOLDING THE REGULARITY AND The Court on several occasions ruled that either the testimony of a
VALIDITY SURROUNDING THE ISSUANCE OF THE representative of, or a certification from, the Philippine National Police
MEMORANDUM RECEIPTS (SIC) IN FAVOR OF PETITIONER WHICH (PNP) Firearms and Explosive Office attesting that a person is not a licensee
PROVES HIS INNOCENCE OF THE CRIME CHARGE (SIC).[52] of any firearm would suffice to prove beyond reasonable doubt the second
(Underscoring supplied) element of possession of illegal firearms.[59] The prosecution more than
complied when it presented both.

Our Ruling
The certification is outside the scope of the hearsay rule.

In illegal possession of firearm and ammunition, the prosecution has the

burden of proving the twin elements of (1) the existence of the subject firearm The general rule is that a witness can testify only to those facts which he
and ammunition, and (2) the fact that the accused who possessed or owned knows of his personal knowledge; that is, which are derived from his own
the same does not have the corresponding license for it.[53] perception.[60] Otherwise, the testimony is objectionable for being
hearsay.[61]

The prosecution was able to discharge its burden.

On this score, the certification from the Firearms and Explosives Division is
an exception to the hearsay rule by virtue of Rule 130, Section 44 of the Rules
of Court which provides:

526

Sec. 44. Entries in official records. Entries in official records made in the
performance of his official duty by a public officer of the Philippines, or by
a person in the performance of a duty specifically enjoined by law, are prima
facie evidence of the facts therein stated.
It may be true that the contents of said certification are only prima facie
evidence of the facts stated there. However, the failure of petitioner to present
controverting evidence makes the presumption unrebutted. Thus, the
presumption stands.
Petitioner, however, raises several points which he says entitles him to no less
than an acquittal.
The assessment of credibility of witnesses lies with the trial court.
First, petitioner says that the seizure of the subject firearm was invalid. The
search was conducted after his arrest and after he was taken out of the room
he was occupying.[62]
This contention deserves scant consideration.
Petitioners version of the manner and place of his arrest goes into the factual
findings made by the trial court and its calibration of the credibility of
witnesses. However, as aptly put by Justice Ynares-Santiago in People v.
Rivera:[63]
x x x the manner of assigning values to declarations of witnesses on the
witness stand is best and most competently performed by the trial judge who
had the unmatched opportunity to observe the witnesses and assess their
credibility by the various indicia available but not reflected on record. The
demeanor of the person on the stand can draw the line between fact and fancy
or evince if the witness is telling the truth or lying through his teeth. We have
consistently ruled that when the question arises as to which of the conflicting
versions of the prosecution and the defense is worthy of belief, the assessment
of the trial courts are generally viewed as correct and entitled to great weight.
Furthermore, in an appeal, where the culpability or innocence of the accused
depends on the issue of credibility of witnesses and the veracity of their
testimonies, findings of the trial court are given the highest degree of respect
if not finality.[64] (Underscoring supplied)
The trial court found the prosecution version worthy of credence and belief.
We find no compelling reason not to accept its observation on this score.
Worth noting is the fact that petitioner is a ranking police officer who not
only claims to be highly decorated,[65] but have effected a number of
successful arrests[66] as well. Common sense would dictate that he must
necessarily be authorized to carry a gun. We thus agree with the Office of the
Solicitor General that framing up petitioner would have been a very risky
proposition. Had the arresting officers really intended to cause the damnation
of petitioner by framing him up, they could have easily planted a more
incriminating evidence rather than a gun. That would have made their
nefarious scheme easier, assuming that there indeed was one.
The pieces of evidence show that petitioner is not legally authorized to
possess the subject firearm and its five (5) ammunition.
527

Second, petitioner insists that he is legally authorized to possess the subject
firearm and its ammunition on the basis of the Memorandum Receipt issued
to him by the PNP Narcotics Command.[67]
Although petitioner is correct in his submission that public officers like
policemen are accorded presumption of regularity in the performance of their
official duties,[68] it is only a presumption; it may be overthrown by evidence
to the contrary. The prosecution was able to rebut the presumption when it
proved that the issuance to petitioner of the Memorandum Receipt was
anything but regular.
SPO3 Timbol, Jr. testified that he issued the Memorandum Receipt to
petitioner based on the verbal instruction of his immediate superior, Col.
Moreno.[69] However, a reading of Timbols testimony on cross-
examination[70] would reveal that there was an unusual facility by which
said receipt was issued to petitioner. Its issuance utterly lacked the usual
necessary bureaucratic constraints. Clearly, it was issued to petitioner under
questionable circumstances.
Failure to offer an unlicensed firearm as evidence is not fatal provided there
is competent testimony as to its existence.
Third, petitioner claims that the subject firearm and ammunition should have
been excluded as evidence because they were not formally offered by the
prosecution[71] in violation of Section 34, Rule 132 of the Rules of
Court.[72]
We note that petitioner contradicted himself when he argued for the validity
of the Memorandum Receipt and, at the same time, for the exclusion in
evidence of the subject firearm and its ammunition. Petitioners act may result
to an absurd situation where the Memorandum Receipt is declared valid,
while the subject firearm and its ammunition which are supposedly covered
by the Memorandum Receipt are excluded as evidence. That would have
made the Memorandum Receipt useless.
In any case, petitioners contention has no leg to stand on.
Contrary to petitioners claim, the subject firearm[73] and its five (5) live
ammunition[74] were offered in evidence by the prosecution.[75] Even
assuming arguendo that they were not offered, petitioners stance must still
fail. The existence of an unlicensed firearm may be established by testimony,
even without its presentation at trial. In People v. Orehuela,[76] the non-
presentation of the pistol did not prevent the conviction of the accused.
The doctrine was affirmed in the recent case of People v. Malinao.[77]
As previously stated, the existence of the subject firearm and its five (5) live
ammunition were established through the testimony of SPO2 Disuanco.[78]
Yuson also identified said firearm.[79] Petitioner even admitted its
existence.[80]
We hasten to add that there may also be conviction where an unlicensed
firearm is presented during trial but through inadvertence, negligence, or
fortuitous event (for example, if it is lost), it is not offered in evidence, as
long as there is competent testimony as to its existence.
528
Penal and civil liabilities
Petitioner was charged with the crime of illegal possession of firearms and
ammunition under the first paragraph of Section 1 of P.D. No. 1866, as
amended. It provides that [t]he penalty of reclusion temporal in its maximum
period to reclusion perpetua shall be imposed upon any person who shall
unlawfully manufacture, deal in, acquire, dispose, or possess any firearm, part
of firearm, ammunition or machinery, tool or instrument used or intended to
be used in the manufacture of any firearm or ammunition.
P.D. No. 1866, as amended, was the governing law at the time petitioner
committed the offense on July 10, 1996. However, R.A. No. 8294 amended
P.D. No. 1866 on July 6, 1997,[81] during the pendency of the case with the
trial court. The present law now states:
SECTION 1. Unlawful Manufacture, Sale, Acquisition, Disposition or
Possession of Firearms or Ammunition or Instruments Used or Intended to
be Used in the Manufacture of Firearms or Ammunition. The penalty of
prision correccional in its maximum period and a fine of not less than Fifteen
Thousand Pesos (P15,000) shall be imposed upon any person who shall
unlawfully manufacture, deal in, acquire, dispose, or possess any low-
powered firearm, such as rimfire handgun, .380 or .32 and other firearm of
similar firepower, part of firearm, ammunition, or machinery, tool or
instrument used or intended to be used in the manufacture of any firearm or
ammunition: Provided, That no other crime was committed. (Underscoring
supplied)
As a general rule, penal laws should not have retroactive application, lest they
acquire the character of an ex post facto law.[82] An exception to this rule,
however, is when the law is advantageous to the accused. According to Mr.
Chief Justice Araullo, this is not as a right of the offender, but founded on the
very principles on which the right of the State to punish and the commination
of the penalty are based, and regards it not as an exception based on political
considerations, but as a rule founded on principles of strict justice.[83]
Although an additional fine of P15,000.00 is imposed by R.A. No. 8294, the
same is still advantageous to the accused, considering that the imprisonment
is lowered to prision correccional in its maximum period[84] from reclusion
temporal in its maximum period to reclusion perpetua[85] under P.D. No.
1866.
Applying the Indeterminate Sentence Law, prision correccional maximum
which ranges from four (4) years, two (2) months and one (1) day to six (6)
years, is the prescribed penalty and will form the maximum term of the
indeterminate sentence. The minimum term shall be one degree lower, which
is prision correccional in its medium period (two [2] years, four [4] months
and one [1] day to four [4] years and two [2] months).[86] Hence, the penalty
imposed by the CA is correct. The penalty of four (4) years and two (2)
months of prision correccional medium, as minimum term, to six (6) years of
prision correccional maximum, as maximum term, is in consonance with the
Courts ruling in Gonzales v. Court of Appeals[87] and Barredo v.
Vinarao.[88]
As to the subject firearm and its five (5) live ammunition, their proper
disposition should be made under Article 45 of the Revised Penal Code[89]
which provides, among others, that the proceeds and instruments or tools of
the crime shall be confiscated and forfeited in favor of the government.
WHEREFORE, the Decision of the Court of Appeals dated May 4, 2004 is
AFFIRMED in full.
529
 Respondent. February 22, 2008

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

DECISION

REYES, R.T., J.:

SR. INSP. JERRY C. VALEROSO, G.R. No. 164815

THE law looks forward, never backward. Lex prospicit, non respicit. A new
Petitioner, law has a prospective, not retroactive, effect.[1] However, penal laws that
favor a guilty person, who is not a habitual criminal, shall be given retroactive
Present: effect.1-a These are the rule, the exception and exception to the exception on
effectivity of laws.

YNARES-SANTIAGO, J.,

Chairperson, Ang batas ay tumitingin sa hinaharap, hindi sa nakaraan. Gayunpaman, ang

parusa ng bagong batas ay iiral kung ito ay pabor sa taong nagkasala na hindi
- versus - AUSTRIA-MARTINEZ, pusakal na kriminal.

CHICO-NAZARIO,

NACHURA, and We apply the exception rather than the rule in this petition for review on
certiorari of the decision of the Court of Appeals (CA), affirming with
REYES, JJ. modification that of the Regional Trial Court (RTC) in Quezon City, finding
petitioner liable for illegal possession of a firearm.

THE PEOPLE OF THE Promulgated:

The Facts
PHILIPPINES,

530
On July 10, 1996, at around 9:30 a.m., SPO2 Antonio M. Disuanco of the
Criminal Investigation Division, Central Police District Command, received
a dispatch order[2] from the desk officer.[3] The order directed him and three
(3) other policemen to serve a warrant of arrest[4] issued by Judge Ignacio
Salvador against petitioner Sr. Insp. Jerry C. Valeroso in a case for
kidnapping with ransom.[5]
That on or about the 10th day of July, 1996, in Quezon City, Philippines, the
said accused without any authority of law, did then and there willfully,
unlawfully and knowingly have in his/her possession and under his/her
custody and control

One (1) cal. 38 Charter Arms revolver bearing Serial No. 52315 with five (5)
live ammo.
After a briefing, the team conducted the necessary surveillance on petitioner,
checking his hideouts in Cavite, Caloocan, and Bulacan.[6] Eventually, the
team proceeded to the Integrated National Police (INP) Central Station at
Culiat, Quezon City, where they saw petitioner as he was about to board a without first having secured the necessary license/permit issued by the proper
tricycle.[7] SPO2 Disuanco and his team approached petitioner.[8] They put authorities.
him under arrest, informed him of his constitutional rights, and bodily
searched him.[9] Found tucked in his waist[10] was a Charter Arms, bearing
Serial Number 52315[11] with five (5) live ammunition.[12]
CONTRARY TO LAW.

Petitioner was then brought to the police station for questioning.[13]

A verification of the subject firearm at the Firearms and Explosives Division

at Camp Crame revealed that it was not issued to petitioner but to a certain
Raul Palencia Salvatierra of Sampaloc, Manila.[14] Epifanio Deriquito, the
records verifier, presented a certification[15] to that effect signed by Edwin Quezon City, Philippines, July 15, 1996.
C. Roque, chief records officer of the Firearms and Explosive Division.[16]

(Sgd.)
Petitioner was then charged with illegal possession of firearm and
ammunition under Presidential Decree (P.D.) No. 1866,[17] as amended. The GLORIA VICTORIA C. YAP
Information read:
Assistant City Prosecutor[18]

531

With the assistance of his counsel de parte, Atty. Oscar Pagulayan, petitioner
pleaded not guilty when arraigned on October 9, 1996.[19] Trial on the merits
ensued.
SPO2 Disuanco and Deriquito testified for the prosecution in the manner
stated above.
Upon the other hand, the defense version was supplied by the combined
testimonies of petitioner Sr. Insp. Jerry C. Valeroso, SPO3 Agustin R.
Timbol, Jr. and Adrian Yuson.
Petitioner recounted that on July 10, 1996, he was fast asleep in the boarding
house of his children located at Sagana Homes, Barangay New Era, Quezon
City.[20] He was roused from his slumber when four (4) heavily armed men
in civilian clothes bolted the room.[21] They trained their guns at him[22]
and pulled him out of the room. They then tied his hands and placed him near
the faucet.[23] The raiding team went back inside and searched and ransacked
the room.[24] SPO2 Disuanco stood guard outside with him.[25] Moments
later, an operative came out of the room and exclaimed, Hoy, may nakuha
akong baril sa loob![26]
Petitioner was told by SPO2 Disuanco that we are authorized to shoot you
because theres a shoot to kill order against you, so if you are planning do so
something, do it right now.[27] He was also told that there was a standing
warrant for his arrest.[28] However, he was not shown any proof when he
asked for it.[29] Neither was the raiding group armed with a valid search
warrant.[30]
According to petitioner, the search done in the boarding house was illegal.
The gun seized from him was duly licensed and covered by necessary
permits. He was, however, unable to present the documentation relative to
the firearm because it was confiscated by the police. Petitioner further
lamented that when he was incarcerated, he was not allowed to engage the
services of a counsel. Neither was he allowed to see or talk to his family.[31]
Petitioner contended that the police had an axe to grind against him. While
still with the Narcotics Command, he turned down a request of Col. Romulo
Sales to white-wash a drug-related investigation involving friends of the said
police officer. Col. Sales was likewise subject of a complaint filed with the
Ombudsman by his wife. Col. Sales was later on appointed as the head of the
unit that conducted the search in his boarding house.[32]
SPO3 Timbol, Jr. of the Narcotics Command testified that he issued to
petitioner a Memorandum Receipt dated July 1, 1993[33] covering the
subject firearm and its ammunition. This was upon the verbal instruction of
Col. Angelito Moreno. SPO3 Timbol identified his signature[34] on the said
receipt.[35]
Adrian Yuson, an occupant of the room adjacent to where petitioner was
arrested, testified that on July 10, 1996, two (2) policemen suddenly entered
his room as he was preparing for school.[36] They grabbed his shoulder and
led him out.[37] During all those times, a gun was poked at him.[38] He was
asked where petitioner was staying. Fearing for his life, he pointed to
petitioners room.[39]
Four (4) policemen then entered the room.[40] He witnessed how they
pointed a gun at petitioner, who was clad only in his underwear.[41] He also
witnessed how they forcibly brought petitioner out of his room.[42] While a
policeman remained near the faucet to guard petitioner, three (3) others went
532
back inside the room.[43] They began searching the whole place. They
forcibly opened his locker,[44] which yielded the subject firearm.[45]
On May 4, 2004, the appellate court affirmed with modification the RTC
disposition. The fallo of the CA decision reads:

RTC and CA Dispositions

Verily, the penalty imposed by the trial court upon the accused-appellant is
On May 6, 1998, the trial court found petitioner guilty as charged, disposing modified to 4 years and 2 months as minimum up to 6 years as maximum.
as follows:

WHEREFORE, with the foregoing MODIFICATION as to the penalty, the

WHEREFORE, the Court hereby finds the accused guilty beyond reasonable decision appealed from is hereby AFFIRMED in all other respects.
doubt of Violation of Section 1 of Presidential Decree No. 1866 as amended
by Republic Act No. 8294 and hereby sentences him to suffer the penalty of
prision correccional in its maximum period or from 4 years, 2 months and 1
day as minimum to 6 years as maximum and to pay the fine in the amount of SO ORDERED.[49]
Fifteen Thousand Pesos (P15,000.00).

His motion for reconsideration[50] having been denied through a Resolution

The gun subject of this case is hereby ordered confiscated in favor of the dated August 3, 2004,[51] petitioner resorted to the present petition under
government. Let the same be put in trust in the hands of the Chief of the PNP. Rule 45.

SO ORDERED.[46] Issues

Petitioner raises the following issues for Our consideration:

I. THE HONORABLE COURT OF APPEALS COMMITTED SERIOUS

ERRORS OF LAW IN AFFIRMING THE CONVICTION OF
Petitioner moved to reconsider[47] but his motion was denied on August 27, PETITIONER DESPITE THE ABSENCE OF PROOF BEYOND
1998.[48] He appealed to the CA. REASONABLE DOUBT.

533
II. THE HONORABLE COURT OF APPEALS COMMITTED SERIOUS As for petitioners lack of authority to possess the firearm, Deriquito testified
ERRORS OF FACT AND LAW IN SUSTAINING THE LEGALITY OF that a verification of the Charter Arms Caliber .38 bearing Serial No. 52315
THE SEARCH AND THE VALIDITY AND ADMISSIBILITY OF THE with the Firearms and Explosives Division at Camp Crame revealed that the
EVIDENCE OBTAINED THEREFROM DESPITE THE seized pistol was not issued to petitioner. It was registered in the name of a
OVERWHELMING PROOF THAT THE SAME IS THE FRUIT OF THE certain Raul Palencia Salvatierra of Sampaloc, Manila.[57] As proof,
POISONOUS TREE. Deriquito presented a certification signed by Roque, the chief records officer
of the same office.[58]

III. THE HONORABLE COURT OF APPEALS COMMITTED SERIOUS

ERRORS OF LAW IN NOT UPHOLDING THE REGULARITY AND The Court on several occasions ruled that either the testimony of a
VALIDITY SURROUNDING THE ISSUANCE OF THE representative of, or a certification from, the Philippine National Police
MEMORANDUM RECEIPTS (SIC) IN FAVOR OF PETITIONER WHICH (PNP) Firearms and Explosive Office attesting that a person is not a licensee
PROVES HIS INNOCENCE OF THE CRIME CHARGE (SIC).[52] of any firearm would suffice to prove beyond reasonable doubt the second
(Underscoring supplied) element of possession of illegal firearms.[59] The prosecution more than
complied when it presented both.

Our Ruling
The certification is outside the scope of the hearsay rule.

In illegal possession of firearm and ammunition, the prosecution has the

burden of proving the twin elements of (1) the existence of the subject firearm The general rule is that a witness can testify only to those facts which he
and ammunition, and (2) the fact that the accused who possessed or owned knows of his personal knowledge; that is, which are derived from his own
the same does not have the corresponding license for it.[53] perception.[60] Otherwise, the testimony is objectionable for being
hearsay.[61]

The prosecution was able to discharge its burden.

On this score, the certification from the Firearms and Explosives Division is
an exception to the hearsay rule by virtue of Rule 130, Section 44 of the Rules
of Court which provides:
The existence of the subject firearm and its ammunition was established
through the testimony of SPO2 Disuanco.[54] Defense witness Yuson also
identified the firearm.[55] Its existence was likewise admitted by no less than
petitioner himself.[56]

534
Sec. 44. Entries in official records. Entries in official records made in the
performance of his official duty by a public officer of the Philippines, or by
a person in the performance of a duty specifically enjoined by law, are prima
facie evidence of the facts therein stated.
It may be true that the contents of said certification are only prima facie
evidence of the facts stated there. However, the failure of petitioner to present
controverting evidence makes the presumption unrebutted. Thus, the
presumption stands.
Petitioner, however, raises several points which he says entitles him to no less
than an acquittal.
The assessment of credibility of witnesses lies with the trial court.
First, petitioner says that the seizure of the subject firearm was invalid. The
search was conducted after his arrest and after he was taken out of the room
he was occupying.[62]
This contention deserves scant consideration.
Petitioners version of the manner and place of his arrest goes into the factual
findings made by the trial court and its calibration of the credibility of
witnesses. However, as aptly put by Justice Ynares-Santiago in People v.
Rivera:[63]
x x x the manner of assigning values to declarations of witnesses on the
witness stand is best and most competently performed by the trial judge who
had the unmatched opportunity to observe the witnesses and assess their
credibility by the various indicia available but not reflected on record. The
demeanor of the person on the stand can draw the line between fact and fancy
or evince if the witness is telling the truth or lying through his teeth. We have
consistently ruled that when the question arises as to which of the conflicting
versions of the prosecution and the defense is worthy of belief, the assessment
of the trial courts are generally viewed as correct and entitled to great weight.
Furthermore, in an appeal, where the culpability or innocence of the accused
depends on the issue of credibility of witnesses and the veracity of their
testimonies, findings of the trial court are given the highest degree of respect
if not finality.[64] (Underscoring supplied)
The trial court found the prosecution version worthy of credence and belief.
We find no compelling reason not to accept its observation on this score.
Worth noting is the fact that petitioner is a ranking police officer who not
only claims to be highly decorated,[65] but have effected a number of
successful arrests[66] as well. Common sense would dictate that he must
necessarily be authorized to carry a gun. We thus agree with the Office of the
Solicitor General that framing up petitioner would have been a very risky
proposition. Had the arresting officers really intended to cause the damnation
of petitioner by framing him up, they could have easily planted a more
incriminating evidence rather than a gun. That would have made their
nefarious scheme easier, assuming that there indeed was one.
The pieces of evidence show that petitioner is not legally authorized to
possess the subject firearm and its five (5) ammunition.
535
Second, petitioner insists that he is legally authorized to possess the subject
firearm and its ammunition on the basis of the Memorandum Receipt issued
to him by the PNP Narcotics Command.[67]
Although petitioner is correct in his submission that public officers like
policemen are accorded presumption of regularity in the performance of their
official duties,[68] it is only a presumption; it may be overthrown by evidence
to the contrary. The prosecution was able to rebut the presumption when it
proved that the issuance to petitioner of the Memorandum Receipt was
anything but regular.
SPO3 Timbol, Jr. testified that he issued the Memorandum Receipt to
petitioner based on the verbal instruction of his immediate superior, Col.
Moreno.[69] However, a reading of Timbols testimony on cross-
examination[70] would reveal that there was an unusual facility by which
said receipt was issued to petitioner. Its issuance utterly lacked the usual
necessary bureaucratic constraints. Clearly, it was issued to petitioner under
questionable circumstances.
Failure to offer an unlicensed firearm as evidence is not fatal provided there
is competent testimony as to its existence.
Third, petitioner claims that the subject firearm and ammunition should have
been excluded as evidence because they were not formally offered by the
prosecution[71] in violation of Section 34, Rule 132 of the Rules of
Court.[72]
We note that petitioner contradicted himself when he argued for the validity
of the Memorandum Receipt and, at the same time, for the exclusion in
evidence of the subject firearm and its ammunition. Petitioners act may result
to an absurd situation where the Memorandum Receipt is declared valid,
while the subject firearm and its ammunition which are supposedly covered
by the Memorandum Receipt are excluded as evidence. That would have
made the Memorandum Receipt useless.
In any case, petitioners contention has no leg to stand on.
Contrary to petitioners claim, the subject firearm[73] and its five (5) live
ammunition[74] were offered in evidence by the prosecution.[75] Even
assuming arguendo that they were not offered, petitioners stance must still
fail. The existence of an unlicensed firearm may be established by testimony,
even without its presentation at trial. In People v. Orehuela,[76] the non-
presentation of the pistol did not prevent the conviction of the accused.
The doctrine was affirmed in the recent case of People v. Malinao.[77]
As previously stated, the existence of the subject firearm and its five (5) live
ammunition were established through the testimony of SPO2 Disuanco.[78]
Yuson also identified said firearm.[79] Petitioner even admitted its
existence.[80]
We hasten to add that there may also be conviction where an unlicensed
firearm is presented during trial but through inadvertence, negligence, or
fortuitous event (for example, if it is lost), it is not offered in evidence, as
long as there is competent testimony as to its existence.
Penal and civil liabilities
536

Petitioner was charged with the crime of illegal possession of firearms and
ammunition under the first paragraph of Section 1 of P.D. No. 1866, as
amended. It provides that [t]he penalty of reclusion temporal in its maximum
period to reclusion perpetua shall be imposed upon any person who shall
unlawfully manufacture, deal in, acquire, dispose, or possess any firearm, part
of firearm, ammunition or machinery, tool or instrument used or intended to
be used in the manufacture of any firearm or ammunition.
P.D. No. 1866, as amended, was the governing law at the time petitioner
committed the offense on July 10, 1996. However, R.A. No. 8294 amended
P.D. No. 1866 on July 6, 1997,[81] during the pendency of the case with the
trial court. The present law now states:
SECTION 1. Unlawful Manufacture, Sale, Acquisition, Disposition or
Possession of Firearms or Ammunition or Instruments Used or Intended to
be Used in the Manufacture of Firearms or Ammunition. The penalty of
prision correccional in its maximum period and a fine of not less than Fifteen
Thousand Pesos (P15,000) shall be imposed upon any person who shall
unlawfully manufacture, deal in, acquire, dispose, or possess any low-
powered firearm, such as rimfire handgun, .380 or .32 and other firearm of
similar firepower, part of firearm, ammunition, or machinery, tool or
instrument used or intended to be used in the manufacture of any firearm or
ammunition: Provided, That no other crime was committed. (Underscoring
supplied)
As a general rule, penal laws should not have retroactive application, lest
they acquire the character of an ex post facto law.[82] An exception to this
rule, however, is when the law is advantageous to the accused. According to
Mr. Chief Justice Araullo, this is not as a right of the offender, but founded
on the very principles on which the right of the State to punish and the
commination of the penalty are based, and regards it not as an exception based
on political considerations, but as a rule founded on principles of strict
justice.[83]
Although an additional fine of P15,000.00 is imposed by R.A. No. 8294, the
same is still advantageous to the accused, considering that the imprisonment
is lowered to prision correccional in its maximum period[84] from reclusion
temporal in its maximum period to reclusion perpetua[85] under P.D. No.
1866.
Applying the Indeterminate Sentence Law, prision correccional maximum
which ranges from four (4) years, two (2) months and one (1) day to six (6)
years, is the prescribed penalty and will form the maximum term of the
indeterminate sentence. The minimum term shall be one degree lower, which
is prision correccional in its medium period (two [2] years, four [4] months
and one [1] day to four [4] years and two [2] months).[86] Hence, the penalty
imposed by the CA is correct. The penalty of four (4) years and two (2)
months of prision correccional medium, as minimum term, to six (6) years of
prision correccional maximum, as maximum term, is in consonance with the
Courts ruling in Gonzales v. Court of Appeals[87] and Barredo v.
Vinarao.[88]
As to the subject firearm and its five (5) live ammunition, their proper
disposition should be made under Article 45 of the Revised Penal Code[89]
which provides, among others, that the proceeds and instruments or tools of
the crime shall be confiscated and forfeited in favor of the government.
WHEREFORE, the Decision of the Court of Appeals dated May 4, 2004 is
AFFIRMED in full.
537
 This is a Petition for Certiorari under Rule 65 of the Rules of Court seeking
the annulment and setting aside of the Orders dated July 19, 2011 and March
8, 2012, rendered by the Office of the Ombudsman in OMB-CC-03-0008-A,
entitled "Presidential Commission on Good Government (PCGG) v. Rodolfo
Cuenca, et al."

The Facts

On October 18, 1992, then President Fidel V. Ramos issued Administrative

Order No. 13 creating a Presidential Ad-Hoc Fact-Finding Committee on
Behest Loans (Ad Hoc Committee). A few months later, President Ramos
issued Memorandum Order No. 61 prescribing certain criteria to be used by
the Ad Hoc Committee as a guide ininvestigating and studying loans granted
by government financing institutions that amount to behest loans.

One of the loan accounts referred to the Ad Hoc Committee for investigation
was that of Resorts Hotel Corporation (RHC).
G.R. No. 206357 November 12, 2014
Incorporated in 1968 with a paid-up capital of ₱1.0 million, RHC was 37.2%
PRESIDENTIAL COMMISISON ON GOOD GOVERNMENT (PCGG), owned by Rodolfo Cuenca, a known Marcos business associate. In 1969,
Petitioner, RHC obtained a total of 9.7 million from DBP, allegedly to pay the balance
vs. of the purchase price of Baguio Pines Hotel and to construct an 8-storey
THE HONORABLE OMBUDSMAN Conchita CarpioMorales, building. In 1973, the loan was restructured and DBP granted a direct loan of
GREGORIO S. LICAROS, GAUDENCIO BEDUYA, JOSE R. TENGCO, ₱14.4 million and guaranteed another ₱11.2 million. In 1974, an additional
JR., JOSE S. ESTEVES, PLACIDO T. MAP A, JR., JULIO V. MACUJA, loan of ₱8.9 million was granted to RHC for the expansion of its hotel project,
VICENTE PATERNO, RAFAEL A. SISON, ROBERTO V. ONGPIN, and ₱3.6 million for the cost of 10 luxury buses. In 1975, an additional loan
ALICIA LL. REYES, Former Members of the Board of Governors of the of ₱27.8 million was again granted to RHC for another expansion project,
Development Bank of the Philippines (DBP), RODOLFO M. CUENCA, and in 1977, it again obtained ₱11.3 million to refinance its unpaid
EDILBERTO M. CUENCA, JOSE Y. VILLONGCO, RODOLFO B. obligations and partly to finance Taal Vista.
SANTIAGO, AURELIO Y. BAUTISTA, GENOVEVA L. BUENO,
BIENVENIDO D. CRUZ, ROMEO R. ECHAUZ, JORGE W. JOSE, To secure the loans totaling ₱86.9 million, RHC offered as collaterals the
LEONILO M. OCAMPO, ANTONIO P. SAN JUAN, JR., CLARENCIO S. assets that were acquired by these loans which included the Baguio Pines
YUJIOCO, All Officers of Resorts Hotels Corporation, Respondents.
Hotel, Taal Vista Lodge, Hotel Mindanao and the luxury buses.
DECISION In 1980, 40% of the amount wereconverted into DBP’s common shareholding
in RHC, and the balance of ₱58.4 million was restructured. The properties
VELASCO, JR., J.:
were foreclosed in 1983 with arrearages of ₱11.97 million.
The Case

538
On the basis of the foregoing,the Ad Hoc Committee found that DBP’s total
exposure as of 1986 amounted to ₱99.1 million.1
Based on the above, the Ad Hoc Committee, on January 4, 1993, submitted a
report to the President where it concluded thatthe RHC account qualifies as
behest in character anchored on the following grounds:
a) The loans are under collateralized;
b) The borrower corporation is undercapitalized, for its paid-up capital
amounted only to ₱10.3 million upon the approval of the loans which totaled
to ₱99,133,765.14 in 1986;
c) Stockholders and officers of the borrower corporation are identified as
Marcos cronies; and
d) As revealed by the marginal notes based on Hawaii documents on file with
PCGG, it was found out that thenPresident Marcos owned 20% of the shares
of stocks in RHC.
Agreeing that the said loans bear the characteristics of a behest loan on the
basis of the said Committee Report, the Republic of the Philippines,
represented by the PCGG, filed an Affidavit-Complaint on January 6, 2003
with the Office of the Ombudsman, against respondent directors and officers
of RHC and the directors of DBP for violation of Sections 3(e) and 3 (g) of
Republic Act (RA) No. 3019 or the Anti-Graft and Corrupt Practices Act.2
Later, or on June 4, 2004, petitioner filed a Supplemental
ComplaintAffidavit.3
In the questioned July 19, 2011 Order, the Ombudsman dismissed petitioner’s
Affidavit-Complaint for lack of jurisdiction. The falloof the Order reads:
PREMISES CONSIDERED, this complaint is DISMISSEDfor lack of
jurisdiction inasmuch as onlyPrivate (sic) parties are charged due to the
refusal of theDevelopment (sic) Bank of the Philippines to furnish the
[p]ertinent documents that will identify the public respondentsInvolved (sic).
Petitioner moved for reconsideration,arguing, among others, that the
Ombudsman erred in dismissing its Affidavit-Complaint since its
Supplemental Complaint-Affidavit enumerates the directors of DBP who
conspired with herein private respondents in granting the behest loans subject
of the case.
Acting on the motion, the Ombudsman,on March 8, 2012, issued the second
assailed Order dismissing the complaint on the ground of prescription,
effectively denying the motion for reconsideration.
In the said Order, the Ombudsman stated that:
In as much as the record indicates that the instant complaint was filed with
this office only on 6 January 2003, or more than ten (10) years from the time
the crimes were discovered on 4 January 1993, the offenses charged herein
had already prescribed. This office, therefore has no other recourse but to
DISMISS the instant complaint.
In light of the foregoing discussion, this Office sees no need to dispose of the
other issues complainant raised in its Motion for Reconsideration.
WHEREFORE, on account of prescription of the offenses charged, the
criminal complaint for violation of Section 3 (e) and (g) of (sic) R.A. 3019
against respondents is hereby DISMISSED. SO ORDERED.
Aggrieved, petitioner seeks recoursefrom this Court, arguing that contrary to
the decision of the Ombudsman, the offense has not yet prescribed. Petitioner
insists that the prescriptive period should only commence to run on January
6, 2003 when it filed the Affidavit-Complaint with the Office of the
Ombudsman, and not on January 4, 1993 when the crimes were discovered.
This argument,according to petitioner, is based on Section 2 of Act No. 33264
which states that "[p]rescription shall begin to run from the day of the
commission of the violation of the law, and if the same be not known at the
time, from the discovery thereof and the institution of judicial proceedings
for its investigation and punishment." Moreover, Section 11 of RA 3019 sets
the prescription of offenses under said law at fifteen (15) years,5 not ten (10)
as held by the Ombudsman.
The Issue
Based on the above backdrop, the issue submitted for this Court’s resolution
is whether or not respondent Ombudsman committed grave abuse of
539
discretion in dismissing the Affidavit-Complaint dated January 6, 2003 on
the ground of prescription.
Our Ruling
The petition is without merit. RA 3019, Section 11 provides that all offenses
punishable under said law shall prescribe in ten (10) years.This period was
later increased to fifteen (15) years with the passage ofBatas Pambansa (BP)
Blg. 195, which took effect on March 16, 1982. This does not mean, however,
that the longer prescriptive period shall apply to all violations of RA 3019.
Following Our pronouncements in People v. Pacificador,6 the rule is that "in
the interpretation of the law on prescription of crimes, that which is more
favorable to the accused is tobe adopted." As such, the longer prescriptive
period of 15 years pursuant to BP Blg. 195 cannot be applied to crimes
committed prior to the effectivityof the said amending law on March 16,
1982. Considering that the crimes werecommitted in 1969, 1970, 1973, 1975,
and 1977, the applicable prescriptive period thereon is the ten-year period set
in RA 3019, the law in force at that time. What is, then, left for Our
determination is the reckoning point for the 10-year period.
Notably, RA 3019 is silent as to when the period of prescription shall begin
to run. This void, however, is remedied by Act No. 3326,7 Section 2 of which
provides in part:
Sec. 2. Prescription shall begin to run from the day of the commission of the
violation of the law, and if the same be not known at the time, from the
discovery thereof and the institution of judicial proceeding for its
investigation and punishment. xxx.
Based on the above, there are two reckoning points for the counting of the
prescription of an offense: 1) the day of the commission of the violation of
the law; and 2) if the day whenthe violation was committed be not known,
then it shall begin to run from the discovery of said violation and the
institution of judicial proceedingsfor investigation and punishment.
The first mode being self-explanatory, We proceed with Our construction of
the second mode.
In interpreting the meaning of the phrase "if the same be not known at the
time, from the discovery thereof and the institution of judicial proceeding for
its investigation," this Court has, as early as 1992 in People v. Duque,8 held
that in cases where the illegality of the activity is not known to the
complainant at the time of its commission, Act No. 3326, Section 2 requires
that prescription, in such a case, would begin to run only from the discovery
thereof, i.e. discovery of the unlawful nature of the constitutive act or acts.9
It is also in Duque10 where this Court espoused the raison d’être for the
second mode. We said, "[i]n the nature of things, acts made criminal by
special laws are frequently not immoral or obviously criminal in themselves;
for this reason, the applicable statute requires that if the violation of the
special law is not known at the time, the prescription begins to run only from
the discovery thereof, i.e., discovery of the unlawful nature of the constitutive
act or acts."11 Further clarifying the meaning ofthe second mode, the Court,
in Duque,12 held that Section 2 should be readas "[p]rescription shall begin
to run from the day of the commission of the violation of the law, and if the
same be not known at the time,from the discovery thereof and untilthe
institution of judicial proceedings for its investigation and punishment."13
Explaining the reason therefor, this Court held that a contrary interpretation
would create the absurd situation where "the prescription period would both
begin and be interrupted by the same occurrence; the net effect would be that
the prescription period would not have effectively begun, having been
rendered academic by the simultaneous interruption of that same period."14
Additionally, this interpretation is consistent with the second paragraph of the
same provision which states that "prescription shall be interrupted when
proceedings are instituted against the guilty person, [and shall] begin to run
again if the proceedings are dismissed for reasons not constituting jeopardy."
Applying the same principle, We have consistently held in a number of cases,
some of which likewise involvebehest loans contracted during the Marcos
regime, that the prescriptive period for the crimes therein involved generally
commences from the discovery thereof, and not on the date of its actual
commission.
In the 199915 and 201116 cases of Presidential Ad Hoc Fact-Finding
Committee on Behest Loans v. Desierto, the Court, in said separate instances,
reversed the ruling of the Ombudsman that the prescriptive period therein
began to run at the time the behest loans were transacted and instead, it should
be counted from the dateof the discovery thereof.
In the 1999 case, We recognized the impossibility for the State, the aggrieved
party, to haveknown the violation of RA 3019 at the time the questioned
540
transactions were made inview of the fact that the public officials concerned
connived or conspired with the "beneficiaries of the loans." There, We
agreedwith the contention of the Presidential Ad Hoc Fact-Finding
Committee that the prescriptive period should be computed from the
discovery of the commission thereof and not from the day of such
commission. It was also in the same case where We clarified that the phrase
"if the same be not known" in Section 2 of Act No. 3326 does not mean "lack
of knowledge" but that the crime "is not reasonably knowable" is
unacceptable. Furthermore, in this1999 case, We intimated that the
determination of the date ofthe discovery of the offense is a question of fact
which necessitates the reception of evidence for its determination.
Similarly, in the 2011 Desiertocase, We ruled that the "blameless ignorance"
doctrine applies considering that the plaintiff therein had no reasonable
means of knowing the existence of a cause of action.17 In this particular
instance, We pinned the running of the prescriptive period to the completion
by the Presidential Ad Hoc Fact-Finding Committee of an exhaustive
investigation on the loans. We elucidated that the first mode under Section 2
of Act No. 3326 would not apply since during the Marcos regime, no person
would have dared to question the legality of these transactions.18
Prior to the 2011 Desierto case came Our 2006 Resolution19 in Romualdez
v. Marcelo,20 which involved a violation of Section 7 of RA 3019. In
resolving the issue of whether or not the offenses charged in the said cases
have already prescribed, We applied the same principle enunciated in
Duque21 and ruled that the prescriptive period for the offenses therein
committed began to run from the discovery thereof on the day former
Solicitor General Francisco I. Chavez filed the complaint with the PCGG.
This was reiterated in Disini v. Sandiganbayan22 where We counted the
running of the prescriptive period insaid case from the date of discovery of
the violation after the PCGG’s exhaustive investigation despite the highly
publicized and well-known nature of the Philippine Nuclear Power Plant
Project therein involved, recognizing the fact that the discovery of the crime
necessitated the prior exhaustive investigation and completion thereof by the
PCGG.
In Republic v. Cojuangco, Jr.,23 however, We held that not all violations of
RA 3019 require the application of the second mode for computing the
prescription of the offense.1avvphi1 There, this Court held that the second
element for the second mode to apply, i.e. that the action could not have been
instituted during the prescriptive period because of martial law, is absent.
This is so since information about the questioned investment therein was not
suppressed from the discerning eye of the public nor has the Office of the
Solicitor General made any allegation to that effect. This Court likewise
faulted therein petitioner for having remained dormant during the remainder
of the period of prescription despite knowing ofthe investment for a
sufficiently long period of time.
An evaluation of the foregoing jurisprudence24 on the matter reveals the
following guidelines in the determination of the reckoning point for the
period of prescription of violations of RA 3019, viz:
1. As a general rule, prescription begins to run from the date of the
commission of the offense.
2. If the date of the commission of the violation is not known, it shall be
counted form the dateof discovery thereof.1âwphi1
3. In determining whether it is the general rule or the exception that should
apply in a particular case, the availability or suppression of the information
relative to the crime should first be determined.
If the necessary information, data, or records based on which the crime could
be discovered is readily available to the public, the general rule applies.
Prescription shall, therefore, run from the date of the commission of the
crime.
Otherwise, should martial law prevent the filing thereof or should information
about the violation be suppressed, possibly through connivance, then the
exception applies and the period of prescription shall be reckoned from the
date of discovery thereof.
In the case at bar, involving as it does the grant of behest loans which We
have recognized as a violation that, by their nature, could be concealed from
the public eye by the simple expedient of suppressing their documentation,25
the second mode applies. We, therefore, count the running of the prescriptive
period from the dateof discovery thereof on January 4, 1993, when the
Presidential Ad Hoc Fact-Finding Committee reported to the President its
findings and conclusions anent RHC’s loans. This being the case, the filing
541
by the PCGG of its Affidavit-Complaint before the Office of the Ombudsman
on January 6,2003, a little over ten (10) years from the date of discovery of
the crimes, is clearly belated. Undoubtedly, the ten-year period within which
to institute the action has already lapsed, making it proper for the
Ombudsman to dismiss petitioner’s complaint on the ground of prescription.
Simply put, and as correctly held by the Ombudsman, prescription has
already set in when petitioner PCGG filed the Affidavit-Complaint on
January 6, 2003.
WHEREFORE, the instant petition is hereby DISMISSED. The Orders dated
July 19, 2011 and March 8, 2012 rendered by the Office of the Ombudsman
in OMB-C-C-03-0008-A, entitled Presidential Commission on Good
Government (PCGG) v. Rodolfo Cuenca, et al., a:e hereby AFFIRMED.
G.R. No. L-30061 February 27, 1974
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellees,
vs.
JOSE JABINAL Y CARMEN, defendant-appellant.
Office of the Solicitor General Felix V. Makasiar and Solicitor Antonio M.
Martinez for plaintiff-appellee.
Pedro Panganiban y Tolentino for defendant-appellant.
ANTONIO, J.:p
Appeal from the judgment of the Municipal Court of Batangas (provincial
capital), Batangas, in Criminal Case No. 889, finding the accused guilty of
the crime of Illegal Possession of Firearm and Ammunition and sentencing
him to suffer an indeterminate penalty ranging from one (1) year and one (1)
day to two (2) years imprisonment, with the accessories provided by law,
which raises in issue the validity of his conviction based on a retroactive
application of Our ruling in People v. Mapa.1
The complaint filed against the accused reads:
That on or about 9:00 o'clock, p.m., the 5th day of September, 1964, in the
poblacion, Municipality of Batangas, Province of Batangas, Philippines, and
within the jurisdiction of this Honorable Court, the above-named accused, a
person not authorized by law, did then and there wilfully, unlawfully and
feloniously keep in his possession, custody and direct control a revolver Cal.
.22, RG8 German Made with one (1) live ammunition and four (4) empty
shells without first securing the necessary permit or license to possess the
same.
At the arraignment on September 11, 1964, the accused entered a plea of not
guilty, after which trial was accordingly held.
The accused admitted that on September 5, 1964, he was in possession of the
revolver and the ammunition described in the complaint, without the requisite
license or permit. He, however, claimed to be entitled to exoneration because,
although he had no license or permit, he had an appointment as Secret Agent
from the Provincial Governor of Batangas and an appointment as
Confidential Agent from the PC Provincial Commander, and the said
appointments expressly carried with them the authority to possess and carry
the firearm in question.
Indeed, the accused had appointments from the above-mentioned officials as
claimed by him. His appointment from Governor Feliciano Leviste, dated
December 10, 1962, reads:
Reposing special trust and confidence in your civic spirit, and trusting that
you will be an effective agent in the detection of crimes and in the
preservation of peace and order in the province of Batangas, especially with
respect to the suppression of trafficking in explosives, jueteng, illegal
cockfighting, cattle rustling, robbery and the detection of unlicensed firearms,
you are hereby appointed a SECRET AGENT of the undersigned, the
appointment to take effect immediately, or as soon as you have qualified for
the position. As such Secret Agent, your duties shall be those generally of a
peace officer and particularly to help in the preservation of peace and order
in this province and to make reports thereon to me once or twice a month. It
should be clearly understood that any abuse of authority on your part shall be
considered sufficient ground for the automatic cancellation of your
appointment and immediate separation from the service. In accordance with
the decision of the Supreme Court in G.R. No. L-12088 dated December 23,
542
1959, you will have the right to bear a firearm, particularly described below,
for use in connection with the performance of your duties.
By virtue hereof, you may qualify and enter upon the performance of your
duties by taking your oath of office and filing the original thereof with us.
Very truly yours,
(Sgd.) FELICIANO LEVISTE
Provincial Governor
FIREARM AUTHORIZED TO CARRY:
Kind: — ROHM-Revolver
Make: — German
SN: — 64
Cal:— .22
On March 15, 1964, the accused was also appointed by the PC Provincial
Commander of Batangas as Confidential Agent with duties to furnish
information regarding smuggling activities, wanted persons, loose firearms,
subversives and other similar subjects that might affect the peace and order
condition in Batangas province, and in connection with these duties he was
temporarily authorized to possess a ROHM revolver, Cal. .22 RG-8 SN-64,
for his personal protection while in the performance of his duties.
The accused contended before the court a quo that in view of his above-
mentioned appointments as Secret Agent and Confidential Agent, with
authority to possess the firearm subject matter of the prosecution, he was
entitled to acquittal on the basis of the Supreme Court's decision in People
vs. Macarandang2 and People vs. Lucero.3 The trial court, while conceding
on the basis of the evidence of record the accused had really been appointed
Secret Agent and Confidential Agent by the Provincial Governor and the PC
Provincial Commander of Batangas, respectively, with authority to possess
and carry the firearm described in the complaint, nevertheless held the
accused in its decision dated December 27, 1968, criminally liable for illegal
possession of a firearm and ammunition on the ground that the rulings of the
Supreme Court in the cases of Macarandang and Lucero were reversed and
abandoned in People vs. Mapa, supra. The court considered as mitigating
circumstances the appointments of the accused as Secret Agent and
Confidential Agent.
Let us advert to Our decisions in People v. Macarandang, supra, People v.
Lucero, supra, and People v. Mapa, supra. In Macarandang, We reversed the
trial court's judgment of conviction against the accused because it was shown
that at the time he was found to possess a certain firearm and ammunition
without license or permit, he had an appointment from the Provincial
Governor as Secret Agent to assist in the maintenance of peace and order and
in the detection of crimes, with authority to hold and carry the said firearm
and ammunition. We therefore held that while it is true that the Governor has
no authority to issue any firearm license or permit, nevertheless, section 879
of the Revised Administrative Code provides that "peace officers" are
exempted from the requirements relating to the issuance of license to possess
firearms; and Macarandang's appointment as Secret Agent to assist in the
maintenance of peace and order and detection of crimes, sufficiently placed
him in the category of a "peace officer" equivalent even to a member of the
municipal police who under section 879 of the Revised Administrative Code
are exempted from the requirements relating to the issuance of license to
possess firearms. In Lucero, We held that under the circumstances of the case,
the granting of the temporary use of the firearm to the accused was a
necessary means to carry out the lawful purpose of the batallion commander
to effect the capture of a Huk leader. In Mapa, expressly abandoning the
doctrine in Macarandang, and by implication, that in Lucero, We sustained
the judgment of conviction on the following ground:
The law is explicit that except as thereafter specifically allowed, "it shall be
unlawful for any person to ... possess any firearm, detached parts of firearms
or ammunition therefor, or any instrument or implement used or intended to
be used in the manufacture of firearms, parts of firearms, or ammunition."
(Sec. 878, as amended by Republic Act No. 4, Revised Administrative Code.)
The next section provides that "firearms and ammunition regularly and
lawfully issued to officers, soldiers, sailors, or marines [of the Armed Forces
of the Philippines], the Philippine Constabulary, guards in the employment
of the Bureau of Prisons, municipal police, provincial governors, lieutenant
governors, provincial treasurers, municipal treasurers, municipal mayors, and
guards of provincial prisoners and jails," are not covered "when such firearms
are in possession of such officials and public servants for use in the
543
performance of their official duties." (Sec. 879, Revised Administrative
Code.)
The law cannot be any clearer. No provision is made for a secret agent. As
such he is not exempt. ... .
Macarandang and Lucero, under which no criminal liability would attach to
his possession of said firearm in spite of the absence of a license and permit
therefor, appellant must be absolved. Certainly, appellant may not be
punished for an act which at the time it was done was held not to be
punishable.

It will be noted that when appellant was appointed Secret Agent by the WHEREFORE, the judgment appealed from is hereby reversed, and
Provincial Government in 1962, and Confidential Agent by the Provincial appellant is acquitted, with costs de oficio.
Commander in 1964, the prevailing doctrine on the matter was that laid down
by Us in People v. Macarandang (1959) and People v. Lucero (1958). Our
decision in People v. Mapa reversing the aforesaid doctrine came only in
1967. The sole question in this appeal is: Should appellant be acquitted on
the basis of Our rulings in Macarandang and Lucero, or should his conviction
stand in view of the complete reversal of the Macarandang and Lucero
doctrine in Mapa? The Solicitor General is of the first view, and he
accordingly recommends reversal of the appealed judgment.

Decisions of this Court, although in themselves not laws, are nevertheless

evidence of what the laws mean, and this is the reason why under Article 8
of the New Civil Code "Judicial decisions applying or interpreting the laws
or the Constitution shall form a part of the legal system ... ." The interpretation
upon a law by this Court constitutes, in a way, a part of the law as of the date
that law originally passed, since this Court's construction merely establishes
the contemporaneous legislative intent that law thus construed intends to
effectuate. The settled rule supported by numerous authorities is a restatement
of legal maxim "legis interpretatio legis vim obtinet" — the interpretation
placed upon the written law by a competent court has the force of law. The
doctrine laid down in Lucero and Macarandang was part of the jurisprudence,
hence of the law, of the land, at the time appellant was found in possession
of the firearm in question and when he arraigned by the trial court. It is true
that the doctrine was overruled in the Mapa case in 1967, but when a doctrine
of this Court is overruled and a different view is adopted, the new doctrine
should be applied prospectively, and should not apply to parties who had
relied on the old doctrine and acted on the faith thereof. This is especially true
in the construction and application of criminal laws, where it is necessary that
the punishability of an act be reasonably foreseen for the guidance of society.

It follows, therefore, that considering that appellant conferred his

appointments as Secret Agent and Confidential Agent and authorized to
possess a firearm pursuant to the prevailing doctrine enunciated in

544

G.R. No. 181704 December 6, 2011
BUREAU OF CUSTOMS EMPLOYEES ASSOCIATION (BOCEA),
represented by its National President (BOCEA National Executive Council)
Mr. Romulo A. Pagulayan, Petitioner,
vs.
HON. MARGARITO B. TEVES, in his capacity as Secretary of the
Department of Finance, HON. NAPOLEON L. MORALES, in his capacity
as Commissioner of the Bureau of Customs, HON. LILIAN B. HEFTI, in her
capacity as Commissioner of the Bureau of Internal Revenue, Respondents.
DECISION
VILLARAMA, JR., J.:
Before this Court is a petition1 for certiorari and prohibition with prayer for
injunctive relief/s under Rule 65 of the 1997 Rules of Civil Procedure, as
amended, to declare Republic Act (R.A.) No. 9335,2 otherwise known as the
Attrition Act of 2005, and its Implementing Rules and Regulations3 (IRR)
unconstitutional, and the implementation thereof be enjoined permanently.
The Facts
On January 25, 2005, former President Gloria Macapagal-Arroyo signed into
law R.A. No. 9335 which took effect on February 11, 2005.
In Abakada Guro Party List v. Purisima4 (Abakada), we said of R.A. No.
9335:
RA [No.] 9335 was enacted to optimize the revenue-generation capability
and collection of the Bureau of Internal Revenue (BIR) and the Bureau of
Customs (BOC). The law intends to encourage BIR and BOC officials and
employees to exceed their revenue targets by providing a system of rewards
and sanctions through the creation of a Rewards and Incentives Fund (Fund)
and a Revenue Performance Evaluation Board (Board). It covers all officials
and employees of the BIR and the BOC with at least six months of service,
regardless of employment status.
The Fund is sourced from the collection of the BIR and the BOC in excess of
their revenue targets for the year, as determined by the Development Budget
and Coordinating Committee (DBCC). Any incentive or reward is taken from
the fund and allocated to the BIR and the BOC in proportion to their
contribution in the excess collection of the targeted amount of tax revenue.
The Boards in the BIR and the BOC are composed of the Secretary of the
Department of Finance (DOF) or his/her Undersecretary, the Secretary of the
Department of Budget and Management (DBM) or his/her Undersecretary,
the Director General of the National Economic Development Authority
(NEDA) or his/her Deputy Director General, the Commissioners of the BIR
and the BOC or their Deputy Commissioners, two representatives from the
rank-and-file employees and a representative from the officials nominated by
their recognized organization.
Each Board has the duty to (1) prescribe the rules and guidelines for the
allocation, distribution and release of the Fund; (2) set criteria and procedures
for removing from the service officials and employees whose revenue
collection falls short of the target; (3) terminate personnel in accordance with
the criteria adopted by the Board; (4) prescribe a system for performance
evaluation; (5) perform other functions, including the issuance of rules and
regulations and (6) submit an annual report to Congress.
The DOF, DBM, NEDA, BIR, BOC and the Civil Service Commission
(CSC) were tasked to promulgate and issue the implementing rules and
545
regulations of RA [No.] 9335, to be approved by a Joint Congressional
Oversight Committee created for such purpose.5
The Joint Congressional Oversight Committee approved the assailed IRR on
May 22, 2006. Subsequently, the IRR was published on May 30, 2006 in two
newspapers of general circulation, the Philippine Star and the Manila
Standard, and became effective fifteen (15) days later.6
Contending that the enactment and implementation of R.A. No. 9335 are
tainted with constitutional infirmities in violation of the fundamental rights
of its members, petitioner Bureau of Customs Employees Association
(BOCEA), an association of rank-and-file employees of the Bureau of
Customs (BOC), duly registered with the Department of Labor and
Employment (DOLE) and the Civil Service Commission (CSC), and
represented by its National President, Mr. Romulo A. Pagulayan (Pagulayan),
directly filed the present petition before this Court against respondents
Margarito B. Teves, in his capacity as Secretary of the Department of Finance
(DOF), Commissioner Napoleon L. Morales (Commissioner Morales), in his
capacity as BOC Commissioner, and Lilian B. Hefti, in her capacity as
Commissioner of the Bureau of Internal Revenue (BIR). In its petition,
BOCEA made the following averments:
Sometime in 2008, high-ranking officials of the BOC pursuant to the mandate
of R.A. No. 9335 and its IRR, and in order to comply with the stringent
deadlines thereof, started to disseminate Collection District Performance
Contracts7 (Performance Contracts) for the lower ranking officials and rank-
and-file employees to sign. The Performance Contract pertinently provided:
xxxx
WHEREAS, pursuant to the provisions of Sec. 25 (b) of the Implementing
Rules and Regulations (IRR) of the Attrition Act of 2005, that provides for
the setting of criteria and procedures for removing from the service Officials
and Employees whose revenue collection fall short of the target in accordance
with Section 7 of Republic Act 9335.
xxxx
NOW, THEREFORE, for and in consideration of the foregoing premises,
parties unto this Agreement hereby agree and so agreed to perform the
following:
xxxx
2. The "Section 2, PA/PE" hereby accepts the allocated Revenue Collection
Target and further accepts/commits to meet the said target under the
following conditions:
a.) That he/she will meet the allocated Revenue Collection Target and thereby
undertakes and binds himself/herself that in the event the revenue collection
falls short of the target with due consideration of all relevant factors affecting
the level of collection as provided in the rules and regulations promulgated
under the Act and its IRR, he/she will voluntarily submit to the provisions of
Sec. 25 (b) of the IRR and Sec. 7 of the Act; and
b.) That he/she will cascade and/or allocate to respective
Appraisers/Examiners or Employees under his/her section the said Revenue
Collection Target and require them to execute a Performance Contract, and
direct them to accept their individual target. The Performance Contract
executed by the respective Examiners/Appraisers/Employees shall be
submitted to the Office of the Commissioner through the LAIC on or before
March 31, 2008.
x x x x8
BOCEA opined that the revenue target was impossible to meet due to the
Government’s own policies on reduced tariff rates and tax breaks to big
businesses, the occurrence of natural calamities and because of other
economic factors. BOCEA claimed that some BOC employees were coerced
and forced to sign the Performance Contract. The majority of them, however,
did not sign. In particular, officers of BOCEA were summoned and required
to sign the Performance Contracts but they also refused. To ease the brewing
tension, BOCEA claimed that its officers sent letters, and sought several
dialogues with BOC officials but the latter refused to heed them.
In addition, BOCEA alleged that Commissioner Morales exerted heavy
pressure on the District Collectors, Chiefs of Formal Entry Divisions,
Principal Customs Appraisers and Principal Customs Examiners of the BOC
546
during command conferences to make them sign their Performance
Contracts. Likewise, BOC Deputy Commissioner Reynaldo Umali (Deputy
Commissioner Umali) individually spoke to said personnel to convince them
to sign said contracts. Said personnel were threatened that if they do not sign
their respective Performance Contracts, they would face possible
reassignment, reshuffling, or worse, be placed on floating status. Thus, all the
District Collectors, except a certain Atty. Carlos So of the Collection District
III of the Ninoy Aquino International Airport (NAIA), signed the
Performance Contracts.
BOCEA further claimed that Pagulayan was constantly harassed and
threatened with lawsuits. Pagulayan approached Deputy Commissioner
Umali to ask the BOC officials to stop all forms of harassment, but the latter
merely said that he would look into the matter. On February 5, 2008, BOCEA
through counsel wrote the Revenue Performance Evaluation Board (Board)
to desist from implementing R.A. No. 9335 and its IRR and from requiring
rank-and-file employees of the BOC and BIR to sign Performance
Contracts.9 In his letter-reply10 dated February 12, 2008, Deputy
Commissioner Umali denied having coerced any BOC employee to sign a
Performance Contract. He also defended the BOC, invoking its mandate of
merely implementing the law. Finally, Pagulayan and BOCEA’s counsel, on
separate occasions, requested for a certified true copy of the Performance
Contract from Deputy Commissioner Umali but the latter failed to furnish
them a copy.11
This petition was filed directly with this Court on March 3, 2008. BOCEA
asserted that in view of the unconstitutionality of R.A. No. 9335 and its IRR,
and their adverse effects on the constitutional rights of BOC officials and
employees, direct resort to this Court is justified. BOCEA argued, among
others, that its members and other BOC employees are in great danger of
losing their jobs should they fail to meet the required quota provided under
the law, in clear violation of their constitutional right to security of tenure,
and at their and their respective families’ prejudice.
In their Comment,12 respondents, through the Office of the Solicitor General
(OSG), countered that R.A. No. 9335 and its IRR do not violate the right to
due process and right to security of tenure of BIR and BOC employees. The
OSG stressed that the guarantee of security of tenure under the 1987
Constitution is not a guarantee of perpetual employment. R.A. No. 9335 and
its IRR provided a reasonable and valid ground for the dismissal of an
employee which is germane to the purpose of the law. Likewise, R.A. No.
9335 and its IRR provided that an employee may only be separated from the
service upon compliance with substantive and procedural due process. The
OSG added that R.A. No. 9335 and its IRR must enjoy the presumption of
constitutionality.
In its Reply,13 BOCEA claimed that R.A. No. 9335 employs means that are
unreasonable to achieve its stated objectives; that the law is unduly
oppressive of BIR and BOC employees as it shifts the extreme burden upon
their shoulders when the Government itself has adopted measures that make
collection difficult such as reduced tariff rates to almost zero percent and tax
exemption of big businesses; and that the law is discriminatory of BIR and
BOC employees. BOCEA manifested that only the high-ranking officials of
the BOC benefited largely from the reward system under R.A. No. 9335
despite the fact that they were not the ones directly toiling to collect revenue.
Moreover, despite the BOCEA’s numerous requests,14 BOC continually
refused to provide BOCEA the Expenditure Plan on how such reward was
distributed.
Since BOCEA was seeking similar reliefs as that of the petitioners in
Abakada Guro Party List v. Purisima, BOCEA filed a Motion to
Consolidate15 the present case with Abakada on April 16, 2008. However,
pending action on said motion, the Court rendered its decision in Abakada on
August 14, 2008. Thus, the consolidation of this case with Abakada was
rendered no longer possible.16
In Abakada, this Court, through then Associate Justice, now Chief Justice
Renato C. Corona, declared Section 1217 of R.A. No. 9335 creating a Joint
Congressional Oversight Committee to approve the IRR as unconstitutional
and violative of the principle of separation of powers. However, the
constitutionality of the remaining provisions of R.A. No. 9335 was upheld
pursuant to Section 1318 of R.A. No. 9335. The Court also held that until the
contrary is shown, the IRR of R.A. No. 9335 is presumed valid and effective
even without the approval of the Joint Congressional Oversight
Committee.19
Notwithstanding our ruling in Abakada, both parties complied with our
Resolution20 dated February 10, 2009, requiring them to submit their
respective Memoranda.
547
The Issues WHETHER OR NOT REPUBLIC ACT [NO.] 9335 IS A BILL OF
ATTAINDER AND HENCE[,] UNCONSTITUTIONAL BECAUSE IT
BOCEA raises the following issues: INFLICTS PUNISHMENT THROUGH LEGISLATIVE FIAT UPON A
PARTICULAR GROUP OR CLASS OF OFFICIALS AND EMPLOYEES
I. WITHOUT TRIAL.21

WHETHER OR NOT THE ATTRITION LAW, REPUBLIC ACT [NO.]
9335, AND ITS IMPLEMENTING RULES AND REGULATIONS ARE
UNCONSTITUTIONAL AS THESE VIOLATE THE RIGHT TO DUE
PROCESS OF THE COVERED BIR AND BOC OFFICIALS AND
EMPLOYEES[;]
II.
WHETHER OR NOT THE ATTRITION LAW, REPUBLIC ACT [NO.]
9335, AND ITS IMPLEMENTING RULES AND REGULATIONS ARE
UNCONSTITUTIONAL AS THESE VIOLATE THE RIGHT OF BIR AND
BOC OFFICIALS AND EMPLOYEES TO THE EQUAL PROTECTION
OF THE LAWS[;]
III.
WHETHER OR NOT REPUBLIC ACT [NO.] 9335 AND ITS
IMPLEMENTING RULES AND REGULATIONS VIOLATE THE RIGHT
TO SECURITY OF TENURE OF BIR AND BOC OFFICIALS AND
EMPLOYEES AS ENSHRINED UNDER SECTION 2 (3), ARTICLE IX
(B) OF THE CONSTITUTION[;]
BOCEA manifested that while waiting for the Court to give due course to its
petition, events unfolded showing the patent unconstitutionality of R.A. No.
9335. It narrated that during the first year of the implementation of R.A. No.
9335, BOC employees exerted commendable efforts to attain their revenue
target of ₱196 billion which they surpassed by as much as ₱2 billion for that
year alone. However, this was attained only because oil companies made
advance tax payments to BOC. Moreover, BOC employees were given their
"reward" for surpassing said target only in 2008, the distribution of which
they described as unjust, unfair, dubious and fraudulent because only top
officials of BOC got the huge sum of reward while the employees, who did
the hard task of collecting, received a mere pittance of around ₱8,500.00. In
the same manner, the Bonds Division of BOC-NAIA collected 400+% of its
designated target but the higher management gave out to the employees a
measly sum of ₱8,500.00 while the top level officials partook of millions of
the excess collections. BOCEA relies on a piece of information revealed by
a newspaper showing the list of BOC officials who apparently earned huge
amounts of money by way of reward.22 It claims that the recipients thereof
included lawyers, support personnel and other employees, including a dentist,
who performed no collection functions at all. These alleged anomalous
selection, distribution and allocation of rewards was due to the failure of R.A.
No. 9335 to set out clear guidelines.23

IV. In addition, BOCEA avers that the Board initiated the first few cases of
attrition for the Fiscal Year 2007 by subjecting five BOC officials from the
WHETHER OR NOT REPUBLIC ACT [NO.] 9335 AND ITS Port of Manila to attrition despite the fact that the Port of Manila substantially
IMPLEMENTING RULES AND REGULATIONS ARE complied with the provisions of R.A. No. 9335. It is thus submitted that the
UNCONSTITUTIONAL AS THEY CONSTITUTE UNDUE selection of these officials for attrition without proper investigation was
DELEGATION OF LEGISLATIVE POWERS TO THE REVENUE nothing less than arbitrary. Further, the legislative and executive
PERFORMANCE EVALUATION BOARD IN VIOLATION OF THE departments’ promulgation of issuances and the Government’s accession to
PRINCIPLE OF SEPARATION OF POWERS ENSHRINED IN THE regional trade agreements have caused a significant diminution of the tariff
CONSTITUTION[; AND] rates, thus, decreasing over-all collection. These unrealistic settings of
revenue targets seriously affect BIR and BOC employees tasked with the
V. burden of collection, and worse, subjected them to attrition.24

548
BOCEA assails the constitutionality of R.A. No. 9335 and its IRR on the
following grounds:
1. R.A. No. 9335 and its IRR violate the BIR and BOC employees’ right to
due process because the termination of employees who had not attained their
revenue targets for the year is peremptory and done without any form of
hearing to allow said employees to ventilate their side. Moreover, R.A. No.
9335 and its IRR do not comply with the requirements under CSC rules and
regulations as the dismissal in this case is immediately executory. Such
immediately executory nature of the Board’s decision negates the remedies
available to an employee as provided under the CSC rules.
2. R.A. No. 9335 and its IRR violate the BIR and BOC employees’ right to
equal protection of the law because R.A. No. 9335 and its IRR unduly
discriminates against BIR and BOC employees as compared to employees of
other revenue generating government agencies like the Philippine
Amusement and Gaming Corporation, Department of Transportation and
Communication, the Air Transportation Office, the Land Transportation
Office, and the Philippine Charity Sweepstakes Office, among others, which
are not subject to attrition.
3. R.A. No. 9335 and its IRR violate the BIR and BOC employees’ right to
security of tenure because R.A. No. 9335 and its IRR effectively removed
remedies provided in the ordinary course of administrative procedure
afforded to government employees. The law likewise created another ground
for dismissal, i.e., non-attainment of revenue collection target, which is not
provided under CSC rules and which is, by its nature, unpredictable and
therefore arbitrary and unreasonable.
4. R.A. No. 9335 and its IRR violate the 1987 Constitution because Congress
granted to the Revenue Performance Evaluation Board (Board) the unbridled
discretion of formulating the criteria for termination, the manner of allocating
targets, the distribution of rewards and the determination of relevant factors
affecting the targets of collection, which is tantamount to undue delegation
of legislative power.
5. R.A. No. 9335 is a bill of attainder because it inflicts punishment upon a
particular group or class of officials and employees without trial. This is
evident from the fact that the law confers upon the Board the power to impose
the penalty of removal upon employees who do not meet their revenue
targets; that the same is without the benefit of hearing; and that the removal
from service is immediately executory. Lastly, it disregards the presumption
of regularity in the performance of the official functions of a public officer.25
On the other hand, respondents through the OSG stress that except for Section
12 of R.A. No. 9335, R.A. No. 9335 and its IRR are constitutional, as per our
ruling in Abakada. Nevertheless, the OSG argues that the classification of
BIR and BOC employees as public officers under R.A. No. 9335 is based on
a valid and substantial distinction since the revenue generated by the BIR and
BOC is essentially in the form of taxes, which is the lifeblood of the State,
while the revenue produced by other agencies is merely incidental or
secondary to their governmental functions; that in view of their mandate, and
for purposes of tax collection, the BIR and BOC are sui generis; that R.A.
No. 9335 complies with the "completeness" and "sufficient standard" tests
for the permissive delegation of legislative power to the Board; that the Board
exercises its delegated power consistent with the policy laid down in the law,
that is, to optimize the revenue generation capability and collection of the
BIR and the BOC; that parameters were set in order that the Board may
identify the officials and employees subject to attrition, and the proper
procedure for their removal in case they fail to meet the targets set in the
Performance Contract were provided; and that the rights of BIR and BOC
employees to due process of law and security of tenure are duly accorded by
R.A. No. 9335. The OSG likewise maintains that there was no encroachment
of judicial power in the enactment of R.A. No. 9335 amounting to a bill of
attainder since R.A. No. 9335 and its IRR merely defined the offense and
provided for the penalty that may be imposed. Finally, the OSG reiterates that
the separation from the service of any BIR or BOC employee under R.A. No.
9335 and its IRR shall be done only upon due consideration of all relevant
factors affecting the level of collection, subject to Civil Service laws, rules
and regulations, and in compliance with substantive and procedural due
process. The OSG opines that the Performance Contract, far from violating
the BIR and BOC employees’ right to due process, actually serves as a notice
of the revenue target they have to meet and the possible consequences of
failing to meet the same. More, there is nothing in the law which prevents the
aggrieved party from appealing the unfavorable decision of dismissal.26
In essence, the issues for our resolution are:
1. Whether there is undue delegation of legislative power to the Board;
549
2. Whether R.A. No. 9335 and its IRR violate the rights of BOCEA’s
members to: (a) equal protection of laws, (b) security of tenure and (c) due
process; and
3. Whether R.A. No. 9335 is a bill of attainder.
Our Ruling
Prefatorily, we note that it is clear, and in fact uncontroverted, that BOCEA
has locus standi. BOCEA impugns the constitutionality of R.A. No. 9335 and
its IRR because its members, who are rank-and-file employees of the BOC,
are actually covered by the law and its IRR. BOCEA’s members have a
personal and substantial interest in the case, such that they have sustained or
will sustain, direct injury as a result of the enforcement of R.A. No. 9335 and
its IRR.27
However, we find no merit in the petition and perforce dismiss the same.
It must be noted that this is not the first time the constitutionality of R.A. No.
9335 and its IRR are being challenged. The Court already settled the majority
of the same issues raised by BOCEA in our decision in Abakada, which
attained finality on September 17, 2008. As such, our ruling therein is worthy
of reiteration in this case.
We resolve the first issue in the negative.
The principle of separation of powers ordains that each of the three great
branches of government has exclusive cognizance of and is supreme in
matters falling within its own constitutionally allocated sphere.28
Necessarily imbedded in this doctrine is the principle of non-delegation of
powers, as expressed in the Latin maxim potestas delegata non delegari
potest, which means "what has been delegated, cannot be delegated." This
doctrine is based on the ethical principle that such delegated power
constitutes not only a right but a duty to be performed by the delegate through
the instrumentality of his own judgment and not through the intervening mind
of another.29 However, this principle of non-delegation of powers admits of
numerous exceptions,30 one of which is the delegation of legislative power
to various specialized administrative agencies like the Board in this case.
The rationale for the aforementioned exception was clearly explained in our
ruling in Gerochi v. Department of Energy,31 to wit:
In the face of the increasing complexity of modern life, delegation of
legislative power to various specialized administrative agencies is allowed as
an exception to this principle. Given the volume and variety of interactions
in today’s society, it is doubtful if the legislature can promulgate laws that
will deal adequately with and respond promptly to the minutiae of everyday
life. Hence, the need to delegate to administrative bodies — the principal
agencies tasked to execute laws in their specialized fields — the authority to
promulgate rules and regulations to implement a given statute and effectuate
its policies. All that is required for the valid exercise of this power of
subordinate legislation is that the regulation be germane to the objects and
purposes of the law and that the regulation be not in contradiction to, but in
conformity with, the standards prescribed by the law. These requirements are
denominated as the completeness test and the sufficient standard test.32
Thus, in Abakada, we held,
Two tests determine the validity of delegation of legislative power: (1) the
completeness test and (2) the sufficient standard test. A law is complete when
it sets forth therein the policy to be executed, carried out or implemented by
the delegate. It lays down a sufficient standard when it provides adequate
guidelines or limitations in the law to map out the boundaries of the delegate’s
authority and prevent the delegation from running riot. To be sufficient, the
standard must specify the limits of the delegate’s authority, announce the
legislative policy and identify the conditions under which it is to be
implemented.
RA [No.] 9335 adequately states the policy and standards to guide the
President in fixing revenue targets and the implementing agencies in carrying
out the provisions of the law. Section 2 spells out the policy of the law:
"SEC. 2. Declaration of Policy. — It is the policy of the State to optimize the
revenue-generation capability and collection of the Bureau of Internal
Revenue (BIR) and the Bureau of Customs (BOC) by providing for a system
of rewards and sanctions through the creation of a Rewards and Incentives
Fund and a Revenue Performance Evaluation Board in the above agencies for
the purpose of encouraging their officials and employees to exceed their
revenue targets."
550

Section 4 "canalized within banks that keep it from overflowing" the
delegated power to the President to fix revenue targets:
"SEC. 4. Rewards and Incentives Fund. — A Rewards and Incentives Fund,
hereinafter referred to as the Fund, is hereby created, to be sourced from the
collection of the BIR and the BOC in excess of their respective revenue
targets of the year, as determined by the Development Budget and
Coordinating Committee (DBCC), in the following percentages:
Excess of Collection [Over] the Revenue Targets Percent (%)
of the Excess Collection to Accrue to the Fund
30% or below — 15%
More than 30% — 15% of the first 30% plus 20% of the remaining
excess
The Fund shall be deemed automatically appropriated the year immediately
following the year when the revenue collection target was exceeded and shall
be released on the same fiscal year.
Revenue targets shall refer to the original estimated revenue collection
expected of the BIR and the BOC for a given fiscal year as stated in the
Budget of Expenditures and Sources of Financing (BESF) submitted by the
President to Congress. The BIR and the BOC shall submit to the DBCC the
distribution of the agencies’ revenue targets as allocated among its revenue
districts in the case of the BIR, and the collection districts in the case of the
BOC.
xxx xxx x x x"
Revenue targets are based on the original estimated revenue collection
expected respectively of the BIR and the BOC for a given fiscal year as
approved by the DBCC and stated in the BESF submitted by the President to
Congress. Thus, the determination of revenue targets does not rest solely on
the President as it also undergoes the scrutiny of the DBCC.
On the other hand, Section 7 specifies the limits of the Board’s authority and
identifies the conditions under which officials and employees whose revenue
collection falls short of the target by at least 7.5% may be removed from the
service:
"SEC. 7. Powers and Functions of the Board. — The Board in the agency
shall have the following powers and functions:
xxx xxx xxx
(b) To set the criteria and procedures for removing from service officials and
employees whose revenue collection falls short of the target by at least seven
and a half percent (7.5%), with due consideration of all relevant factors
affecting the level of collection as provided in the rules and regulations
promulgated under this Act, subject to civil service laws, rules and
regulations and compliance with substantive and procedural due process:
Provided, That the following exemptions shall apply:
1. Where the district or area of responsibility is newly-created, not exceeding
two years in operation, and has no historical record of collection performance
that can be used as basis for evaluation; and
2. Where the revenue or customs official or employee is a recent transferee
in the middle of the period under consideration unless the transfer was due to
nonperformance of revenue targets or potential nonperformance of revenue
targets: Provided, however, That when the district or area of responsibility
covered by revenue or customs officials or employees has suffered from
economic difficulties brought about by natural calamities or force majeure or
economic causes as may be determined by the Board, termination shall be
considered only after careful and proper review by the Board.
(c) To terminate personnel in accordance with the criteria adopted in the
preceding paragraph: Provided, That such decision shall be immediately
executory: Provided, further, That the application of the criteria for the
separation of an official or employee from service under this Act shall be
without prejudice to the application of other relevant laws on accountability
of public officers and employees, such as the Code of Conduct and Ethical
Standards of Public Officers and Employees and the Anti-Graft and Corrupt
Practices Act;
xxx xxx x x x"
At any rate, this Court has recognized the following as sufficient standards:
"public interest", "justice and equity", "public convenience and welfare" and
"simplicity, economy and welfare". In this case, the declared policy of
551
optimization of the revenue-generation capability and collection of the BIR
and the BOC is infused with public interest.33
We could not but deduce that the completeness test and the sufficient standard
test were fully satisfied by R.A. No. 9335, as evident from the
aforementioned Sections 2, 4 and 7 thereof. Moreover, Section 534 of R.A.
No. 9335 also provides for the incentives due to District Collection Offices.
While it is apparent that the last paragraph of Section 5 provides that "[t]he
allocation, distribution and release of the district reward shall likewise be
prescribed by the rules and regulations of the Revenue Performance and
Evaluation Board," Section 7 (a)35 of R.A. No. 9335 clearly mandates and
sets the parameters for the Board by providing that such rules and guidelines
for the allocation, distribution and release of the fund shall be in accordance
with Sections 4 and 5 of R.A. No. 9335. In sum, the Court finds that R.A. No.
9335, read and appreciated in its entirety, is complete in all its essential terms
and conditions, and that it contains sufficient standards as to negate
BOCEA’s supposition of undue delegation of legislative power to the Board.
Similarly, we resolve the second issue in the negative.
Equal protection simply provides that all persons or things similarly situated
should be treated in a similar manner, both as to rights conferred and
responsibilities imposed. The purpose of the equal protection clause is to
secure every person within a state’s jurisdiction against intentional and
arbitrary discrimination, whether occasioned by the express terms of a statute
or by its improper execution through the state’s duly constituted authorities.
In other words, the concept of equal justice under the law requires the state
to govern impartially, and it may not draw distinctions between individuals
solely on differences that are irrelevant to a legitimate governmental
objective.361awphil
Thus, on the issue on equal protection of the laws, we held in Abakada:
The equal protection clause recognizes a valid classification, that is, a
classification that has a reasonable foundation or rational basis and not
arbitrary. With respect to RA [No.] 9335, its expressed public policy is the
optimization of the revenue-generation capability and collection of the BIR
and the BOC. Since the subject of the law is the revenue-generation capability
and collection of the BIR and the BOC, the incentives and/or sanctions
provided in the law should logically pertain to the said agencies. Moreover,
the law concerns only the BIR and the BOC because they have the common
distinct primary function of generating revenues for the national government
through the collection of taxes, customs duties, fees and charges.
The BIR performs the following functions:
"Sec. 18. The Bureau of Internal Revenue. — The Bureau of Internal
Revenue, which shall be headed by and subject to the supervision and control
of the Commissioner of Internal Revenue, who shall be appointed by the
President upon the recommendation of the Secretary [of the DOF], shall have
the following functions:
(1) Assess and collect all taxes, fees and charges and account for all revenues
collected;
(2) Exercise duly delegated police powers for the proper performance of its
functions and duties;
(3) Prevent and prosecute tax evasions and all other illegal economic
activities;
(4) Exercise supervision and control over its constituent and subordinate
units; and
(5) Perform such other functions as may be provided by law.
xxx xxx x x x"
On the other hand, the BOC has the following functions:
"Sec. 23. The Bureau of Customs. — The Bureau of Customs which shall be
headed and subject to the management and control of the Commissioner of
Customs, who shall be appointed by the President upon the recommendation
of the Secretary [of the DOF] and hereinafter referred to as Commissioner,
shall have the following functions:
(1) Collect custom duties, taxes and the corresponding fees, charges and
penalties;
(2) Account for all customs revenues collected;
552

(3) Exercise police authority for the enforcement of tariff and customs laws;
(4) Prevent and suppress smuggling, pilferage and all other economic frauds
within all ports of entry;
(5) Supervise and control exports, imports, foreign mails and the clearance of
vessels and aircrafts in all ports of entry;
(6) Administer all legal requirements that are appropriate;
(7) Prevent and prosecute smuggling and other illegal activities in all ports
under its jurisdiction;
(8) Exercise supervision and control over its constituent units;
(9) Perform such other functions as may be provided by law.
xxx xxx x x x"
Both the BIR and the BOC are bureaus under the DOF. They principally
perform the special function of being the instrumentalities through which the
State exercises one of its great inherent functions — taxation. Indubitably,
such substantial distinction is germane and intimately related to the purpose
of the law. Hence, the classification and treatment accorded to the BIR and
the BOC under RA [No.] 9335 fully satisfy the demands of equal
protection.37
As it was imperatively correlated to the issue on equal protection, the issues
on the security of tenure of affected BIR and BOC officials and employees
and their entitlement to due process were also settled in Abakada:
Clearly, RA [No.] 9335 in no way violates the security of tenure of officials
and employees of the BIR and the BOC. The guarantee of security of tenure
only means that an employee cannot be dismissed from the service for causes
other than those provided by law and only after due process is accorded the
employee. In the case of RA [No.] 9335, it lays down a reasonable yardstick
for removal (when the revenue collection falls short of the target by at least
7.5%) with due consideration of all relevant factors affecting the level of
collection. This standard is analogous to inefficiency and incompetence in the
performance of official duties, a ground for disciplinary action under civil
service laws. The action for removal is also subject to civil service laws, rules
and regulations and compliance with substantive and procedural due
process.38
In addition, the essence of due process is simply an opportunity to be heard,
or as applied to administrative proceedings, a fair and reasonable opportunity
to explain one’s side.39 BOCEA’s apprehension of deprivation of due
process finds its answer in Section 7 (b) and (c) of R.A. No. 9335.40 The
concerned BIR or BOC official or employee is not simply given a target
revenue collection and capriciously left without any quarter. R.A. No. 9335
and its IRR clearly give due consideration to all relevant factors41 that may
affect the level of collection. In the same manner, exemptions42 were set,
contravening BOCEA’s claim that its members may be removed for
unattained target collection even due to causes which are beyond their
control. Moreover, an employee’s right to be heard is not at all prevented and
his right to appeal is not deprived of him.43 In fine, a BIR or BOC official or
employee in this case cannot be arbitrarily removed from the service without
according him his constitutional right to due process. No less than R.A. No.
9335 in accordance with the 1987 Constitution guarantees this.
We have spoken, and these issues were finally laid to rest. Now, the Court
proceeds to resolve the last, but new issue raised by BOCEA, that is, whether
R.A. No. 9335 is a bill of attainder proscribed under Section 22,44 Article III
of the 1987 Constitution.
On this score, we hold that R.A. No. 9335 is not a bill of attainder. A bill of
attainder is a legislative act which inflicts punishment on individuals or
members of a particular group without a judicial trial. Essential to a bill of
attainder are a specification of certain individuals or a group of individuals,
the imposition of a punishment, penal or otherwise, and the lack of judicial
trial.451avvphi1
In his Concurring Opinion in Tuason v. Register of Deeds, Caloocan City,46
Justice Florentino P. Feliciano traces the roots of a Bill of Attainder, to wit:
Bills of attainder are an ancient instrument of tyranny. In England a few
centuries back, Parliament would at times enact bills or statutes which
declared certain persons attainted and their blood corrupted so that it lost all
heritable quality (Ex Parte Garland, 4 Wall. 333, 18 L.Ed. 366 [1867]). In
553
more modern terms, a bill of attainder is essentially a usurpation of judicial doubtful, speculative, or argumentative.50 We have so declared in Abakada,
power by a legislative body. It envisages and effects the imposition of a and we now reiterate that R.A. No. 9335 and its IRR are constitutional.
penalty — the deprivation of life or liberty or property — not by the ordinary
processes of judicial trial, but by legislative fiat. While cast in the form of WHEREFORE, the present petition for certiorari and prohibition with prayer
special legislation, a bill of attainder (or bill of pains and penalties, if it for injunctive relief/s is DISMISSED.
prescribed a penalty other than death) is in intent and effect a penal judgment
visited upon an identified person or group of persons (and not upon the No costs.
general community) without a prior charge or demand, without notice and
hearing, without an opportunity to defend, without any of the civilized forms
and safeguards of the judicial process as we know it (People v. Ferrer, 48
SCRA 382 [1972]; Cummings and Missouri, 4 Wall. 277, 18 L. Ed. 356
[1867]; U.S. v. Lovett, 328, U.S. 303, 90 L.Ed. 1252 [1945]; U.S. v. Brown,
381 U.S. 437, 14 L.Ed. 2d. 484 [1965]. Such is the archetypal bill of attainder
wielded as a means of legislative oppression. x x x47

R.A. No. 9335 does not possess the elements of a bill of attainder. It does not
seek to inflict punishment without a judicial trial. R.A. No. 9335 merely lays
down the grounds for the termination of a BIR or BOC official or employee
and provides for the consequences thereof. The democratic processes are still
followed and the constitutional rights of the concerned employee are amply
protected.

A final note.

We find that BOCEA’s petition is replete with allegations of defects and

anomalies in allocation, distribution and receipt of rewards. While BOCEA
intimates that it intends to curb graft and corruption in the BOC in particular
and in the government in general which is nothing but noble, these intentions
do not actually pertain to the constitutionality of R.A. No. 9335 and its IRR,
but rather in the faithful implementation thereof. R.A. No. 9335 itself does
not tolerate these pernicious acts of graft and corruption.48 As the Court is
not a trier of facts, the investigation on the veracity of, and the proper action
on these anomalies are in the hands of the Executive branch. Correlatively,
the wisdom for the enactment of this law remains within the domain of the
Legislative branch. We merely interpret the law as it is. The Court has no
discretion to give statutes a meaning detached from the manifest intendment
and language thereof.49 Just like any other law, R.A. No. 9335 has in its favor
the presumption of constitutionality, and to justify its nullification, there must
be a clear and unequivocal breach of the Constitution and not one that is

554