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EN BANC On December 1, 2007, upon the request of the Department of

Interior and Local Government (DILG), respondent DOJ Secretary Raul


REVEREND FATHER ROBERT P. REYES, G. R. No. 182161 Gonzales issued Hold Departure Order (HDO) No. 45 ordering respondent
Petitioner, Commissioner of Immigration to include in the Hold Departure List of the
Bureau of Immigration and Deportation (BID) the name of petitioner and
Present: 49 others relative to the aforementioned case in the interest of national
security and public safety.
PUNO, C.J.,
- versus - CARPIO, On December 2, 2007, after finding probable cause against
CORONA, petitioner and 36 others for the crime of Rebellion under Article 134 of
CARPIO MORALES, the Revised Penal Code, the DOJ Panel of Prosecutors filed an
CHICO-NAZARIO, Information docketed as I.S. No. 2007-1045 before the Regional Trial
VELASCO, JR., Court, Branch 150 of Makati City.
COURT OF APPEALS, SECRETARY NACHURA,
RAUL M. GONZALEZ, IN HIS CAPACITY LEONARDO-DE CASTRO, On December 7, 2007, petitioner filed a Motion for Judicial
AS THE SECRETARY OF THE BRION, Determination of Probable Cause and Release of the Accused Fr. Reyes
DEPARTMENT OF JUSTICE, AND PERALTA, Upon Recognizance asserting that the DOJ panel failed to produce any
COMMISSIONER MARCELINO C. BERSAMIN, evidence indicating his specific participation in the crime charged; and
LIBANAN, IN HIS CAPACITY AS THE DEL CASTILLO, that under the Constitution, the determination of probable cause must
COMMISSIONER OF THE BUREAU OF ABAD, and be made personally by a judge.
IMMIGRATION, VILLARAMA, JR., JJ.
Respondents. On December 13, 2007, the RTC issued an Order dismissing the
Promulgated: charge for Rebellion against petitioner and 17 others for lack of probable
cause. The trial court ratiocinated that the evidence submitted by the
December 3, 2009 DOJ Panel of Investigating Prosecutors failed to show that petitioner and
DECISION the other accused-civilians conspired and confederated with the accused-
soldiers in taking arms against the government; that petitioner and other
LEONARDO-DE CASTRO, J.: accused-civilians were arrested because they ignored the call of the
police despite the deadline given to them to come out from the 2 ndFloor
For resolution is the petition for review under Rule 45 of the Rules of Court, of the Hotel and submit themselves to the police authorities; that mere
assailing the February 4, 2008 Decision[1] of the Court of Appeals (CA) in CA-G.R. No. 00011 presence at the scene of the crime and expressing ones sentiments on
which dismissed the petition for the issuance of the writ of amparo under A.M. No. 07-9-12- electoral and political reforms did not make them conspirators absent
SC, as amended. It also assails the CAs Resolution dated March 25, 2008, denying petitioners concrete evidence that the accused-civilians knew beforehand the intent
motion for reconsideration of the aforesaid February 4, 2008 Decision. of the accused-soldiers to commit rebellion; and that the cooperation
The undisputed facts as found by the CA are as follows: which the law penalizes must be one that is knowingly and intentionally
rendered.
Petitioner was among those arrested in the Manila Peninsula Hotel siege
on November 30, 2007. In the morning of November 30, 2007, petitioner together On December 18, 2007, petitioners counsel Atty. Francisco L.
with fifty (50) others, were brought to Camp Crame to await inquest Chavez wrote the DOJ Secretary requesting the lifting of HDO No. 45 in
proceedings. In the evening of the same day, the Department of Justice (DOJ) Panel view of the dismissal of Criminal Case No. 07-3126.
of Prosecutors, composed of Emmanuel Y. Velasco, Phillip L. Dela Cruz and Aristotle
M. Reyes, conducted inquest proceedings to ascertain whether or not there was On even date, Secretary Gonzales replied to petitioners letter
probable cause to hold petitioner and the others for trial on charges of Rebellion stating that the DOJ could not act on petitioners request until Atty.
and/or Inciting to Rebellion. Chavezs right to represent petitioner is settled in view of the fact that a
certain Atty. J. V. Bautista representing himself as counsel of petitioner
had also written a letter to the DOJ.

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For respondents part, the Office of the Solicitor-General (OSG)
On January 3, 2008, petitioner filed the instant petition claiming maintained that the Secretary of the DOJs power to issue HDO springs
that despite the dismissal of the rebellion case against petitioner, HDO from its mandate under the Administrative Code to investigate and
No. 45 still subsists; that on December 19, 2007, petitioner was held by prosecute offenders as the principal law agency of the government; that
BID officials at the NAIA as his name is included in the Hold Departure in its ten-year existence, the constitutionality of DOJ Circular No. 17 has
List; that had it not been for the timely intervention of petitioners not been challenged except now; and that on January 3, 2008, the DOJ
counsel, petitioner would not have been able to take his scheduled flight Panel of Investigating Prosecutors had filed a Motion for Reconsideration
to Hong Kong; that on December 26, 2007, petitioner was able to fly back of the Order of Dismissal of the trial court.
to the Philippines from Hong Kong but every time petitioner would
present himself at the NAIA for his flights abroad, he stands to be On February 1, 2008, petitioner filed a Manifestation attaching
detained and interrogated by BID officers because of the continued thereto a copy of the Order dated January 31, 2008 of the trial court
inclusion of his name in the Hold Departure List; and that the Secretary of denying respondent DOJs Motion for Reconsideration for utter lack of
Justice has not acted on his request for the lifting of HDO No. merit. The trial court also observed that the said Motion should be
45. Petitioner further maintained that immediate recourse to the dismissed outright for being filed out of time. [4]
Supreme Court for the availment of the writ is exigent as the continued
restraint on petitioners right to travel is illegal. The petition for a writ of amparo is anchored on the ground that respondents
violated petitioners constitutional right to travel. Petitioner argues that the DOJ Secretary
On January 24, 2008, respondents represented by the Office of has no power to issue a Hold Departure Order (HDO) and the subject HDO No. 45 has no legal
the Solicitor General (OSG) filed the Return of the Writ raising the basis since Criminal Case No. 07-3126 has already been dismissed.
following affirmative defenses: 1) that the Secretary of Justice is
authorized to issue Hold Departure Orders under the DOJ Circulars No. On February 4, 2008, the CA rendered the assailed Decision dismissing the petition
17, Series of 1998[2] and No. 18 Series of 2007[3] pursuant to his mandate and denying the privilege of the writ of amparo.
under the Administrative Code of 1987 as ahead of the principal law Petitioners Motion for Reconsideration[5] thereon was also denied in the assailed
agency of the government; 2) that HDO No. 45 dated December 1, 2007 Resolution[6] dated March 25, 2008.
was issued by the Sec. Gonzales in the course of the preliminary
investigation of the case against herein petitioner upon the request of Hence, the present petition which is based on the following grounds:
the DILG; 3) that the lifting of HDO No. 45 is premature in view of public
respondents pending Motion for Reconsideration dated January 3, 2008 I.
filed by the respondents of the Order dated December 13, 2007 of the
RTC dismissing Criminal Case No. 07-3126 for Rebellion for lack of THE DOJ SECRETARYS ARROGATION OF POWER AND
probable cause; 4) that petitioner failed to exhaust administrative USURPATION OF AUTHORITY TO ISSUE A HOLD DEPARTURE ORDER
remedies by filing a motion to lift HDO No. 45 before the DOJ; and 5) that CANNOT BE JUSTIFIED THROUGH A RATIONALE THAT IT HAS SUPPOSEDLY
the constitutionality of Circulars No. 17 and 18 can not be attacked BEEN REGULARLY EXERCISED IN THE PAST OR HAS NEVER BEEN
collaterally in an amparoproceeding. QUESTIONED (IN THE PAST).

During the hearing on January 25, 2008 at 10:00 a.m. at the


Paras Hall of the Court of Appeals, counsels for both parties II.
appeared. Petitioners counsel Atty. Francisco Chavez manifested that
petitioner is currently in Hong Kong; that every time petitioner would THE DOJ HAS CLAIMED A POWER TO ISSUE AN HDO
leave and return to the country, the immigration officers at the NAIA INDEPENDENT OF THAT OF THE REGIONAL TRIAL COURTS, HENCE,
detain and interrogate him for several minutes because of the existing PETITIONER CANNOT MERELY RELY ON THE RESIDUAL POWER OF THE
HDO; that the power of the DOJ Secretary to issue HDO has no legal RTC MAKATI IN CRIMINAL CASE NO. 07-3126 TO ASSAIL SUCH CLAIMED
basis; and that petitioner did not file a motion to lift the HDO before the POWER.
RTC nor the DOJ because to do so would be tantamount to recognizing III.
the power of the DOJ Secretary to issue HDO.

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THE UTMOST EXIGENCY OF THE PETITION IS EXEMPLIFIED BY
THE CONTINUING ACTUAL RESTRAINT ON PETITIONERS RIGHT TO TRAVEL The Court, in Secretary of National Defense et al. v. Manalo et al.,[11] made a
THROUGH THE MAINTENANCE OF HIS NAME IN THE HDO LIST AND DOES categorical pronouncement that the Amparo Rule in its present form is confined to these two
NOT SIMPLY HINGE ON THE QUESTION OF WHETHER OR NOT PETITIONER instances of extralegal killings and enforced disappearances, or to threats thereof, thus:
WAS ABLE TO TRAVEL DESPITE SUCH A RESTRAINT.
x x x As the Amparo Rule was intended to address the intractable
IV. problem of extralegal killings and enforced disappearances, its coverage,
in its present form, is confined to these two instances or to threats
DOJ CIRCULAR 17 SERIES OF 1998 PROVIDES NO STATUTORY thereof. Extralegal killings are killings committed without due process of
BASIS FOR THE DOJ SECRETARYS CLAIMED POWER TO ISSUE AN HDO FOR law, i.e., without legal safeguards or judicial proceedings. On the other
IT IS NOT A STATUTE. THE CIRCULAR ITSELF APPEARS NOT TO BE BASED hand, enforced disappearances are attended by the following
ON ANY STATUTE, HENCE, IT DOES NOT HAVE THE FORCE OF LAW AND characteristics: an arrest, detention or abduction of a person by a
NEED NOT BE ATTACKED IN A DIRECT PROCEEDING.[7] government official or organized groups or private individuals acting with
the direct or indirect acquiescence of the government; the refusal of the
Petitioner maintains that the writ of amparo does not only exclusively apply to State to disclose the fate or whereabouts of the person concerned or a
situations of extrajudicial killings and enforced disappearances but encompasses the whole refusal to acknowledge the deprivation of liberty which places such
gamut of liberties protected by the Constitution. Petitioner argues that [liberty] includes the persons outside the protection of law.[12]
right to exist and the right to be free from arbitrary personal restraint or servitude and
includes the right of the citizens to be free to use his faculties in all lawful ways. Part of the In Tapuz v. Del Rosario,[13] the Court laid down the basic principle regarding the rule
right to liberty guaranteed by the Constitution is the right of a person to travel. on the writ of amparo as follows:

In their Comment,[8] both respondents Secretary Gonzalez and Commissioner To start off with the basics, the writ of amparo was originally
Libanan argue that: 1) HDO No. 45 was validly issued by the Secretary of Justice in conceived as a response to the extraordinary rise in the number of
accordance with Department of Justice Circular No. 17, Series of 1998,[9] and Circular No. 18, killings and enforced disappearances, and to the perceived lack of
Series of 2007,[10] which were issued pursuant to said Secretarys mandate under the available and effective remedies to address these extraordinary
Administrative Code of 1987, as head of the principal law agency of the government, to concerns. It is intended to address violations of or threats to the rights
investigate the commission of crimes, prosecute offenders, and provide immigration to life, liberty or security, as an extraordinary and independent remedy
regulatory services; and; 2) the issue of the constitutionality of the DOJ Secretarys authority beyond those available under the prevailing Rules, or as a remedy
to issue hold departure orders under DOJ Circulars Nos. 17 and 18 is not within the ambit of a supplemental to these Rules. What it is not, is a writ to protect concerns
writ of amparo. that are purely property or commercial. Neither is it a writ that we shall
issue on amorphous and uncertain grounds. Consequently, the Rule on
The case hinges on the issue as to whether or not petitioners right to liberty has the Writ of Amparo in line with the extraordinary character of the writ
been violated or threatened with violation by the issuance of the subject HDO, which would and the reasonable certainty that its issuance demands requires that
entitle him to the privilege of the writ of amparo. every petition for the issuance of the writ must be supported by justifying
allegations of fact, to wit:
The petition must fail.
(a) The personal circumstances of the
Section 1 of the Rule on the Writ of Amparo provides: petitioner;

SECTION 1. Petition. The petition for a writ of amparo is a (b) The name and personal circumstances of
remedy available to any person whose right to life, liberty and security is the respondent responsible for the threat, act or
violated or threatened with violation by an unlawful act or omission of a omission, or, if the name is unknown or uncertain,
public official or employee, or of a private individual or entity. the respondent may be described by an assumed
appellation;
The writ shall cover extralegal killings and enforced
disappearances or threats thereof.

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(c) The right to life, liberty and security of is not a life lived in fear that his person and property may be
the aggrieved party violated or threatened with unreasonably violated by a powerful ruler. Rather, it is a life lived with
violation by an unlawful act or omission of the the assurance that the government he established and consented to, will
respondent, and how such threat or violation is protect the security of his person and property. The ideal of security in
committed with the attendant circumstances detailed life and property pervades the whole history of man. It touches every
in supporting affidavits; aspect of mans existence. In a broad sense, the right to security of person
emanates in a persons legal and uninterrupted enjoyment of his life, his
(d) The investigation conducted, if any, limbs, his body, his health, and his reputation. It includes the right to
specifying the names, personal circumstances, and exist, and the right to enjoyment of life while existing, and it is invaded
addresses of the investigating authority or individuals, not only by a deprivation of life but also of those things which are
as well as the manner and conduct of the necessary to the enjoyment of life according to the nature,
investigation, together with any report; temperament, and lawful desires of the individual.[16]
The right to liberty, on the other hand, was defined in the City of Manila, et al. v.
(e) The actions and recourses taken by the Hon. Laguio, Jr.,[17] in this manner:
petitioner to determine the fate or whereabouts of
the aggrieved party and the identity of the person Liberty as guaranteed by the Constitution was defined by
responsible for the threat, act or omission; and Justice Malcolm to include the right to exist and the right to be free from
arbitrary restraint or servitude. The term cannot be dwarfed into mere
(f) The relief prayed for. freedom from physical restraint of the person of the citizen, but is
deemed to embrace the right of man to enjoy the facilities with which he
The petition may include a general prayer for other has been endowed by his Creator, subject only to such restraint as are
just and equitable reliefs.[14] necessary for the common welfare. x x x

The writ shall issue if the Court is preliminarily satisfied with Secretary of National Defense et al. v. Manalo et al.[18] thoroughly expounded on
the prima facie existence of the ultimate facts determinable from the the import of the right to security, thus:
supporting affidavits that detail the circumstances of how and to what
extent a threat to or violation of the rights to life, liberty and security of A closer look at the right to security of person would yield
the aggrieved party was or is being committed. (Emphasis supplied) various permutations of the exercise of this right.

Here, petitioner invokes this extraordinary remedy of the writ of amparo for the First, the right to security of person is freedom from fear. In its whereas
protection of his right to travel. He insists that he is entitled to the protection covered by the clauses, the Universal Declaration of Human Rights (UDHR) enunciates
Rule on the Writ of Amparo because the HDO is a continuing actual restraint on his right to that a world in which human beings shall enjoy freedom of speech and
travel. The Court is thus called upon to rule whether or not the right to travel is covered by the belief and freedom from fear and want has been proclaimed as the
Rule on the Writ of Amparo. highest aspiration of the common people. (emphasis supplied) Some
scholars postulate that freedom from fear is not only an aspirational
The rights that fall within the protective mantle of the Writ of Amparo under Section principle, but essentially an individual international human right. It is the
1 of the Rules thereon are the following: (1) right to life; (2) right to liberty; and (3) right to right to security of person as the word security itself means freedom
security. from fear. Article 3 of the UDHR provides, viz:

In Secretary of National Defense et al. v. Manalo et al.,[15] the Court explained the Everyone has the right to life, liberty
concept of right to life in this wise: and security of person.
xxx
While the right to life under Article III, Section 1 guarantees
essentially the right to be alive- upon which the enjoyment of all other The Philippines is a signatory to both the UDHR and the ICCPR.
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

4
In the context of Section 1 of the Amparo Rule, freedom from usual constraints imposed by the very necessity of safeguarding the system of justice. In such
fear is the right and any threat to the rights to life, liberty or security is cases, whether the accused should be permitted to leave the jurisdiction for humanitarian
the actionable wrong. Fear is a state of mind, a reaction; threat is a reasons is a matter of the courts sound discretion. [22]
stimulus, a cause of action. Fear caused by the same stimulus can range
from being baseless to well-founded as people react differently. The Here, the restriction on petitioners right to travel as a consequence of the
degree of fear can vary from one person to another with the variation of pendency of the criminal case filed against him was not unlawful. Petitioner has also failed to
the prolificacy of their imagination, strength of character or past establish that his right to travel was impaired in the manner and to the extent that it
experience with the stimulus. Thus, in the amparo context, it is more amounted to a serious violation of his right to life, liberty and security, for which there exists
correct to say that the right to security is actually the freedom from no readily available legal recourse or remedy.
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 In Canlas et al. v. Napico Homeowners Association I XIII, Inc. et al.,[23] this Court
right to security mentioned in the earlier part of the provision. ruled that:

Second, the right to security of person is a guarantee of bodily This new remedy of writ of amparo which is made available by
and psychological integrity or security. Article III, Section II of the 1987 this Court is intended for the protection of the highest possible rights of
Constitution guarantees that, as a general rule, ones body cannot be any person, which is his or her right to life, liberty and security. The Court
searched or invaded without a search warrant. Physical injuries inflicted will not spare any time or effort on its part in order to give priority to
in the context of extralegal killings and enforced disappearances petitions of this nature. However, the Court will also not waste its
constitute more than a search or invasion of the body. It may constitute precious time and effort on matters not covered by the writ.
dismemberment, physical disabilities, and painful physical intrusion. As
the degree of physical injury increases, the danger to life itself We find the direct recourse to this Court inappropriate, considering the provision
escalates.Notably, in criminal law, physical injuries constitute a crime of Section 22 of the Rule on the Writ of Amparo which reads:
against persons because they are an affront to the bodily integrity or
security of a person. Section 22. Effect of Filing of a Criminal Action. When a criminal
action has been commenced, no separate petition for the writ shall be
xxx filed. The reliefs under the writ shall be available by motion in the
criminal case.
Third, the right to security of person is a guarantee of
protection of ones rights by the government. In the context of the writ The procedure under this Rule shall govern the disposition of
of amparo, this right is built into the guarantees of the right to life and the reliefs available under the writ of amparo.
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 Pursuant to the aforementioned Section 22, petitioner should have filed with the
and psychological integrity) under Article III, Section 2. The right to RTC-Makati a motion to lift HDO No. 45 in Criminal Case No. 07-3126. Petitioner, however,
security of person in this third sense is a corollary of the policy that the did not file in the RTC-Makati a motion to lift the DOJs HDO, as his co-accused did in the
State guarantees full respect for human rights under Article II, Section 11 same criminal case. Petitioner argues that it was not the RTC-Makati but the DOJ that issued
of the 1987 Constitution. As the government is the chief guarantor of the said HDO, and that it is his intention not to limit his remedy to the lifting of the HDO but
order and security, the Constitutional guarantee of the rights to life, also to question before this Court the constitutionality of the power of the DOJ Secretary to
liberty and security of person is rendered ineffective if government does issue an HDO.[24] We quote with approval the CAs ruling on this matter:
not afford protection to these rights especially when they are under
threat. Protection includes conducting effective investigations, The said provision [Section 22] is an affirmation by the Supreme
organization of the government apparatus to extend protection to Court of its pronouncement in Crespo v. Mogul[25] that once a complaint
victims of extralegal killings or enforced disappearances (or threats or information is filed in court, any disposition of the case such as its
thereof) and/or their families, and bringing offenders to the bar of dismissal or its continuation rests on the sound discretion of the
justice. x x x (emphasis supplied)[19] court. Despite the denial of respondents MR of the dismissal of the case
The right to travel refers to the right to move from one place to another.[20] As we against petitioner, the trial court has not lost control over Criminal Case
have stated in Marcos v. Sandiganbayan,[21] xxx a persons right to travel is subject to the No. 07-3126 which is still pending before it. By virtue of its residual

5
power, the court a quo retains the authority to entertain incidents in the G.R. No. 182498
instant case to the exclusion of even this Court. The relief petitioner GEN. AVELINO I. RAZON, JR., Chief, Philippine
seeks which is the lifting of the HDO was and is available by motion in the National Police (PNP); Police Chief Present:
criminal case. (Sec. 22, Rule on the Writ of amparo, supra).[26] Superintendent RAUL CASTAEDA, Chief,
Criminal Investigation and Detection Group PUNO, C.J.,
Even in civil cases pending before the trial courts, the Court has no authority to (CIDG); Police Senior Superintendent CARPIO,
separately and directly intervene through the writ of amparo, as elucidated in Tapuz v. Del LEONARDO A. ESPINA, Chief, Police Anti-Crime CORONA,
Rosario,[27] thus: and Emergency Response (PACER); and GEN. CARPIO MORALES,
JOEL R. GOLTIAO, Regional Director of ARMM, CHICO-NAZARIO,
Where, as in this case, there is an ongoing civil process dealing PNP, VELASCO, JR.,
directly with the possessory dispute and the reported acts of violence Petitioners, NACHURA,
and harassment, we see no point in separately and directly intervening - versus - LEONARDO-DE CASTRO,
through a writ of amparo in the absence of any clear prima facie showing BRION,
personal concern that the PERALTA,
MARY JEAN B. TAGITIS, herein represented by BERSAMIN,
that the danger or threat is continuing. We see no legal bar, however, to ATTY. FELIPE P. ARCILLA, JR., Attorney-in-Fact, DEL CASTILLO,
an application for the issuance of the writ, in a proper case, by motion in Respondent. ABAD, and
a pending case on appeal or on certiorari, applying by analogy the VILLARAMA, JR., JJ.
provisions on the co-existence of the writ with a separately filed criminal
case.

Additionally, petitioner is seeking the extraordinary writ of amparo due to his Promulgated:
apprehension that the DOJ may deny his motion to lift the HDO.[28] Petitioners apprehension
is at best merely speculative. Thus, he has failed to show any clear threat to his right to December 3, 2009
liberty actionable through a petition for a writ of amparo. The absence of an actual
controversy also renders it unnecessary for us on this occasion to pass upon the
constitutionality of DOJ Circular No. 17, Series of 1998 (Prescribing Rules and Regulations
Governing the Issuance of Hold Departure Orders); and Circular No. 18, Series of 2007
(Prescribing Rules and Regulations Governing the Issuance and Implementation of Watchlist DECISION
Orders and for Other Purposes). BRION, J.:

WHEREFORE, the petition is DISMISSED. The assailed Decision of the CA dated We review in this petition for review on certiorari[1] the decision dated March 7,
February 4, 2008 in CA-G.R. No. 00011 is hereby AFFIRMED. 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


EN BANC
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
6
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 THE FACTUAL ANTECEDENTS
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. The background facts, based on the petition and the records of the case, are summarized
Morced Tagitis and his family, and to submit a monthly report of their below.
actions to this Court, as a way of PERIODIC REVIEW to enable this Court The established facts show that Tagitis, a consultant for the World Bank and the Senior
to monitor the action of respondents. 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
This amparo case is hereby DISMISSED as to respondent LT. arrived in Jolo by boat in the early morning of October 31, 2007 from a seminar in
GEN. ALEXANDER YANO, Commanding General, Philippine Army, and as Zamboanga City. They immediately checked-in at ASY Pension House. Tagitis asked Kunnong
to respondent GEN. RUBEN RAFAEL, Chief Anti-Terror Task Force Comet, to buy him a boat ticket for his return trip the following day to Zamboanga.When Kunnong
Zamboanga City, both being with the military, which is a separate and returned from this errand, Tagitis was no longer around. [5] The receptionist related that
distinct organization from the police and the CIDG, in terms of Tagitis went out to buy food at around 12:30 in the afternoon and even left his room key
operations, chain of command and budget. 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
This Decision reflects the nature of the Writ of Amparo a protective remedy against advised Kunnong to simply wait.[7]
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 On November 4, 2007, Kunnong and Muhammad Abdulnazeir N. Matli, a UP professor of
address the disappearance of an individual, in this case, Engr. Morced N. Tagitis. It does not Muslim studies and Tagitis fellow student counselor at the IDB, reported Tagitis
determine guilt nor pinpoint criminal culpability for the disappearance; rather, it disappearance to the Jolo Police Station.[8] On November 7, 2007, Kunnong executed a sworn
determines responsibility, or at least accountability, for the enforced disappearance for affidavit attesting to what he knew of the circumstances surrounding Tagitis
purposes of imposing the appropriate remedies to address the disappearance.[9]
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 More than a month later (on December 28, 2007), the respondent filed a Petition for the
enforced disappearance, as a measure of the remedies this Court shall craft, among them, Writ of Amparo (petition) with the CA through her Attorney-in-Fact, Atty. Felipe P.
the directive to file the appropriate criminal and civil cases against the responsible parties in Arcilla.[10] The petition was directed against Lt. Gen. Alexander Yano, Commanding General,
the proper courts. Accountability, on the other hand, refers to the measure of remedies that Philippine Army; Gen. Avelino I. Razon, Chief, Philippine National Police (PNP); Gen. Edgardo
should be addressed to those who exhibited involvement in the enforced disappearance M. Doromal, Chief, Criminal Investigation and Detention Group (CIDG); Sr. Supt. Leonardo A.
without bringing the level of their complicity to the level of responsibility defined above; or Espina, Chief, Police Anti-Crime and Emergency Response; Gen. Joel Goltiao, Regional
who are imputed with knowledge relating to the enforced disappearance and who carry the Director, ARMM-PNP; and Gen. Ruben Rafael, Chief, Anti-Terror Task Force Comet
burden of disclosure; or those who carry, but have failed to discharge, the burden of [collectively referred to as petitioners]. After reciting Tagitis personal circumstances and the
extraordinary diligence in the investigation of the enforced disappearance. In all these cases, facts outlined above, the petition went on to state:
the issuance of the Writ of Amparo is justified by our primary goal of addressing the xxxx
disappearance, so that the life of the victim is preserved and his liberty and security are 7. Soon after the student left the room, Engr. Tagitis went out of the pension house
restored. 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
We highlight this nature of a Writ of Amparo case at the outset to stress that the unique boarded the latter on a motor vehicle then sped away without the
situations that call for the issuance of the writ, as well as the considerations and measures knowledge of his student, Arsimin Kunnong;
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 8. As instructed, in the late afternoon of the same day, Kunnong returned to the
of Amparo[4] (Amparo Rule) issued by this Court is unique. The Amparo Rule should be read, pension house, and was surprised to find out that subject Engr. Tagitis
too, as a work in progress, as its directions and finer points remain to evolve through time cannot [sic] be contacted by phone and was not also around and his
and jurisprudence and through the substantive laws that Congress may promulgate. room was closed and locked;

7
18. Instead of helping the [respondent], she [sic] was told of an intriguing tale by
9. Kunnong requested for the key from the desk of the pension house who [sic] the police that her husband, subject of the petition, was not missing but
assisted him to open the room of Engr. Tagitis, where they discovered was with another woman having good time somewhere, which is a clear
that the personal belongings of Engr. Tagitis, including cell phones, indication of the [petitioners] refusal to help and provide police
documents and other personal belongings were all intact inside the assistance in locating her missing husband;
room;
19. The continued failure and refusal of the [petitioners] to release and/or turn-
10. When Kunnong could not locate Engr. Tagitis, the former sought the help of over subject Engr. Tagitis to his family or even to provide truthful
another IDB scholar and reported the matter to the local police agency; information to [the respondent] of the subjects whereabouts, and/or
allow [the respondent] to visit her husband Engr. Morced Tagitis, caused
11. Arsimin Kunnong including his friends and companions in Jolo, exerted efforts so much sleepless nights and serious anxieties;
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 20. Lately, [the respondent] was again advised by one of the [petitioners] to go to
ready answer that Engr. Tagitis could have been abducted by the Abu the ARMM Police Headquarters again in Cotobato City and also to the
Sayyaf group and other groups known to be fighting against the different Police Headquarters including [those] in Davao City, in
government; 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,
12. Being scared with [sic] these suggestions and insinuations of the police officers, which entailed expenses for her trips to these places thereby resorting
Kunnong reported the matter to the [respondent, wife of Engr. Tagitis] by her to borrowings and beggings [sic] for financial help from friends and
phone and other responsible officers and coordinators of the IDB relatives only to try complying [sic] to the different suggestions of these
Scholarship Programme in the Philippines, who alerted the office of the police officers, despite of which, her efforts produced no positive results
Governor of ARMM who was then preparing to attend the OIC meeting in up to the present time;
Jeddah, Saudi Arabia;
21. In fact at times, some police officers, who [sympathized with] the sufferings
13. [Respondent], on the other hand, approached some of her co-employees with undergone by the [respondent], informed her that they are not the
the Land Bank in Digos branch, Digos City, Davao del Sur who likewise proper persons that she should approach, but assured her not to worry
sought help from some of their friends in the military who could help because her husband is [sic] in good hands;
them find/locate the whereabouts of her husband;
22. The unexplained uncooperative behavior of the [petitioners] to the
14. All of these efforts of the [respondent] did not produce any positive results [respondents] request for help and failure and refusal of the [petitioners]
except the information from persons in the military who do not want to to extend the needed help, support and assistance in locating the
be identified that Engr. Tagitis is in the hands of the uniformed men; whereabouts of Engr. Tagitis who had been declared missing since
October 30, 2007 which is almost two (2) months now, clearly indicates
15. According to reliable information received by the [respondent], subject Engr. that the [petitioners] are actually in physical possession and custody of
Tagitis is in the custody of police intelligence operatives, specifically [respondents] husband, Engr. Tagitis;
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 xxxx
the different terrorist groups;
25. [The respondent] has exhausted all administrative avenues and remedies
xxxx but to no avail, and under the circumstances, [the respondent] has no
17. [Respondent] filed her complaint with the PNP Police Station in the ARMM in other plain, speedy and adequate remedy to protect and get the release
Cotobato and in Jolo, as suggested by her friends, seeking their help to of subject Engr. Morced Tagitis from the illegal clutches of the
find her husband, but [respondents] request and pleadings failed to [petitioners], their intelligence operatives and the like which are in total
produce any positive results; violation of the subjects human and constitutional rights, except the
issuance of a WRIT OF AMPARO. [Emphasis supplied]

8
On the same day the petition was filed, the CA immediately issued the Writ of Amparo, set conducting a continuous case build up and information gathering to
the case for hearing on January 7, 2008, and directed the petitioners to file their verified locate the whereabouts of Engr. Tagitis.
return within seventy-two (72) hours from service of the writ.[11]
c) That the Director, CIDG directed the conduct of the
In their verified Return filed during the hearing of January 27, 2008, the petitioners search in all divisions of the CIDG to find Engr. Tagitis who was allegedly
denied any involvement in or knowledge of Tagitis alleged abduction. They argued that the abducted or illegally detained by covert CIDG-PNP Intelligence Operatives
allegations of the petition were incomplete and did not constitute a cause of action against since October 30, 2007, but after diligent and thorough search, records
them; were baseless, or at best speculative; and were merely based on hearsay evidence. [12] show that no such person is being detained in CIDG or any of its
department or divisions.
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 5. On this particular case, the Philippine National Police exhausted all
disappearance; that he had been designated by President Gloria Macapagal Arroyo as the possible efforts, steps and actions available under the circumstances and
head of a special body called TASK FORCE USIG, to address concerns about extralegal killings continuously search and investigate [sic] the instant case. This immense
and enforced disappearances; the Task Force, inter alia, coordinated with the investigators mandate, however, necessitates the indispensable role of the citizenry,
and local police, held case conferences, rendered legal advice in connection to these cases; as the PNP cannot stand alone without the cooperation of the victims
and gave the following summary:[13] and witnesses to identify the perpetrators to bring them before the bar
of justice and secure their conviction in court.
xxxx
4.
a) On November 5, 2007, the Regional Director, Police The petitioner PNP-CIDG Chief, Gen. Edgardo M. Doromal, submitted as well his affidavit,
Regional Office ARMM submitted a report on the alleged disappearance also attached to the Return of the Writ, attesting that upon receipt of the Writ of Amparo, he
of one Engr. Morced Tagitis. According to the said report, the victim caused the following:[14]
checked-in at ASY Pension House on October 30, 2007 at about 6:00 in xxxx
the morning and then roamed around Jolo, Sulu with an unidentified That immediately upon receipt on December 29, 2007 of the Resolution of the
companion. It was only after a few days when the said victim did not Honorable Special Fourth Division of the Court of Appeals, I immediately
return that the matter was reported to Jolo MPS. Afterwards, elements directed the Investigation Division of this Group [CIDG] to conduct urgent
of Sulu PPO conducted a thorough investigation to trace and locate the investigation on the alleged enforced disappearance of Engineer Morced
whereabouts of the said missing person, but to no avail. The said PPO is Tagitis.
still conducting investigation that will lead to the immediate findings of
the whereabouts of the person. That based on record, Engr. Morced N. Tagitis attended an Education
Development Seminar on October 28, 2007 at Ateneo de Zamboanga at
b) Likewise, the Regional Chief, 9RCIDU submitted a Zamboanga City together with Prof. Abdulnasser Matli. On October 30,
Progress Report to the Director, CIDG. The said report stated among 2007, at around six oclock in the morning he arrived at Jolo, Sulu. He was
others that: subject person attended an Education Development Seminar assisted by his student identified as Arsimin Kunnong of the Islamic
set on October 28, 2007 conducted at Ateneo de Zamboanga, Development Bank who was also one of the participants of the said
Zamboanga City together with a Prof. Matli. On October 30, 2007, at seminar. He checked in at ASY pension house located [sic] Kakuyagan,
around 5:00 oclock in the morning, Engr. Tagitis reportedly arrived at Jolo Patikul, Sulu on October 30, 2007 with [sic] unidentified companion. At
Sulu wharf aboard M/V Bounty Cruise, he was then billeted at ASY around six oclock in the morning of even date, Engr. Tagitis instructed his
Pension House. At about 6:15 oclock in the morning of the same date, he student to purchase a fast craft ticket for Zamboanga City. In the
instructed his student to purchase a fast craft ticket bound for afternoon of the same date, Kunnong arrived at the pension house
Zamboanga City and will depart from Jolo, Sulu on October 31, 2007. That carrying the ticket he purchased for Engr. Tagitis, but the latter was
on or about 10:00 oclock in the morning, Engr. Tagitis left the premises of nowhere to be found anymore. Kunnong immediately informed Prof.
ASY Pension House as stated by the cashier of the said pension Abdulnasser Matli who reported the incident to the police. The CIDG is
house. Later in the afternoon, the student instructed to purchase the not involved in the disappearance of Engr. Morced Tagitis to make out a
ticket arrived at the pension house and waited for Engr. Tagitis, but the case of an enforced disappearance which presupposes a direct or indirect
latter did not return. On its part, the elements of 9RCIDU is now involvement of the government.

9
disappearance as well as any pattern or practice that may have brought
That herein [petitioner] searched all divisions and departments for a about the disappearance.
person named Engr. Morced N. Tagitis, who was allegedly abducted or
illegally detained by covert CIDG-PNP Intelligence Operatives since That I further directed the chief of PACER-MOR, Police Superintendent
October 30, 2007 and after a diligent and thorough research records JOSE ARNALDO BRIONES JR., to submit a written report regarding the
show that no such person is being detained in CIDG or any of its disappearance of ENGR. MORCED.
department or divisions.
That in compliance with my directive, the chief of PACER-MOR sent
That nevertheless, in order to determine the circumstances surrounding through fax his written report.
Engr. Morced Tagitis [sic] alleged enforced disappearance, the
undersigned had undertaken immediate investigation and will pursue That the investigation and measures being undertaken to locate/search
investigations up to its full completion in order to aid in the prosecution the subject in coordination with Police Regional Office, Autonomous
of the person or persons responsible therefore. Region of Muslim Mindanao (PRO-ARMM) and Jolo Police Provincial
Office (PPO) and other AFP and PNP units/agencies in the area are
Likewise attached to the Return of the Writ was PNP-PACER[15] Chief PS Supt. Leonardo A. ongoing with the instruction not to leave any stone unturned so to speak
Espinas affidavit which alleged that:[16] in the investigation until the perpetrators in the instant case are brought
to the bar of justice.
xxxx
That I have exercised EXTRAORDINARY DILIGENCE in dealing with the
That, I and our men and women in PACER vehemently deny any WRIT OF AMPARO just issued.
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 Finally, the PNP PRO ARMM Regional Director PC Supt. Joel R. Goltiao (Gen. Goltiao), also
elements of PACER nor was there any indication that the alleged submitted his affidavit detailing the actions that he had taken upon receipt of the report on
abduction or illegal detention of ENGR. TAGITIS was undertaken jointly by Tagitis disappearance, viz:[17]
our men and by the alleged covert CIDG-PNP intelligence xxxx
operatives alleged to have abducted or illegally detained ENGR. TAGITIS.
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 3) For the record:
neutralizing or eradicating kidnap-for-ransom groups which until now
continue to be one of the menace of our society is a respondent in 1. I am the Regional Director of Police Regional Office
kidnapping or illegal detention case. Simply put, our task is to go after ARMM now and during the time of the incident;
kidnappers and charge them in court and to abduct or illegally detain or
kidnap anyone is anathema to our mission. xxxx

That right after I learned of the receipt of the WRIT OF AMPARO, I 4. It is my duty to look into and take appropriate measures on
directed the Chief of PACER Mindanao Oriental (PACER-MOR) to conduct any cases of reported enforced disappearances and when they are being
pro-active measures to investigate, locate/search the subject, identify alluded to my office;
and apprehend the persons responsible, to recover and preserve
evidence related to the disappearance of ENGR. MORCED TAGITIS, which 5. On November 5, 2007, the Provincial Director of Sulu Police Provincial
may aid in the prosecution of the person or persons responsible, to Office reported to me through Radio Message Cite No. SPNP3-1105-07-
identify witnesses and obtain statements from them concerning the 2007 that on November 4, 2007 at around 3:30 p.m., a certain
disappearance and to determine the cause, manner, location and time of Abdulnasser Matli, an employee of Islamic Development Bank, appeared
before the Office of the Chief of Police, Jolo Police Station, and reported

10
the disappearance of Engr. Morced Tagitis, scholarship coordinator of
Islamic Development Bank, Manila; d) Memorandum dated December 24, 2007 addressed to PD Sulu
PPO directing him to maximize efforts to establish clues on the
6. There was no report that Engr. Tagibis was last seen in the company of whereabouts of Engr. Tagitis by seeking the cooperation of Prof.
or taken by any member of the Philippine National Police but rather he Abdulnasser Matli and Arsimin Kunnong and/or whenever
just disappeared from ASY Pension House situated at Kakuyagan Village, necessary, for them to voluntarily submit for polygraph
Village, Patikul, Sulu, on October 30, 2007, without any trace of forcible examination with the NBI so as to expunge all clouds of doubt
abduction or arrest; that they may somehow have knowledge or idea to his
disappearance;
7. The last known instance of communication with him was when Arsimin
Kunnong, a student scholar, was requested by him to purchase a vessel e) Memorandum dated December 27, 2007 addressed to the
ticket at the Office of Weezam Express, however, when the student Regional Chief, Criminal Investigation and Detection Group,
returned back to ASY Pension House, he no longer found Engr. Tagitis Police Regional Office 9, Zamboanga City, requesting assistance
there and when he immediately inquired at the information counter to investigate the cause and unknown disappearance of Engr.
regarding his whereabouts [sic], the person in charge in the counter Tagitis considering that it is within their area of operational
informed him that Engr. Tagitis had left the premises on October 30, 2007 jurisdiction;
around 1 oclock p.m. and never returned back to his room;
f) Memorandum from Chief, Intelligence Division, PRO ARMM
8. Immediately after learning the incident, I called and directed the dated December 30, 2007 addressed to PD Sulu PPO requiring
Provincial Director of Sulu Police Provincial Office and other units through them to submit complete investigation report regarding the
phone call and text messages to conduct investigation [sic] to determine case of Engr. Tagitis;
the whereabouts of the aggrieved party and the person or persons
responsible for the threat, act or omission, to recover and preserve 10. In compliance to our directives, PD Sulu PPO has exerted his [sic]
evidence related to the disappearance of Engr. Tagitis, to identify efforts to conduct investigation [sic] on the matter to determine the
witnesses and obtain statements from them concerning his whereabouts of Engr. Tagitis and the circumstances related to his
disappearance, to determine the cause and manner of his disappearance, disappearance and submitted the following:
to identify and apprehend the person or persons involved in the
disappearance so that they shall be brought before a competent court; a) Progress Report dated November 6, 2007 through Radio Message
Cite No. SPNP3-1106-10-2007;
9. Thereafter, through my Chief of the Regional Investigation and
Detection Management Division, I have caused the following directives: b) Radio Message Cite No. SPIDMS-1205-47-07 informing this office
that they are still monitoring the whereabouts of Engr. Tagitis;
a) Radio Message Cite No. RIDMD-1122-07-358 dated November
22, 2007 directing PD Sulu PPO to conduct joint investigation c) Investigation Report dated December 31, 2007 from the Chief of
with CIDG and CIDU ARMM on the matter; Police, Jolo Police Station, Sulu PPO;

b) Radio Message Cite No. RIDMD-1128-07-361 dated November 11. This incident was properly reported to the PNP Higher Headquarters
28, 2007 directing PD Sulu PPO to expedite compliance to my as shown in the following:
previous directive;
a) Memorandum dated November 6, 2007 addressed to the Chief, PNP
c) Memorandum dated December 14, 2007 addressed to PD Sulu informing him of the facts of the disappearance and the action being
PPO reiterating our series of directives for investigation and taken by our office;
directing him to undertake exhaustive coordination efforts with
the owner of ASY Pension House and student scholars of IDB in b) Memorandum dated November 6, 2007 addressed to the Director,
order to secure corroborative statements regarding the Directorate for Investigation and Detection Management, NHQ PNP;
disappearance and whereabouts of said personality;

11
c) Memorandum dated December 30, 2007 addressed to the Director, 9. Gleaned from the undersigned inspection and observation at the Headquarters 9
DIDM; 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]
4) In spite of our exhaustive efforts, the whereabouts of Engr. Tagitis something to do with [sic] mysterious disappearance of Engr. Morced
cannot be determined but our office is continuously intensifying the Tagitis last October 30, 2007. Since doubt has been raised regarding the
conduct of information gathering, monitoring and coordination for the emolument on the Islamic Development Bank Scholar program of IDB
immediate solution of the case. that was reportedly deposited in the personal account of Engr. Tagitis by
the IDB central office in Jeddah, Kingdom of Saudi Arabia.Secondly, it
Since the disappearance of Tagistis was practically admitted and taking note of favorable could might [sic] be done by resentment or sour grape among students
actions so far taken on the disappearance, the CA directed Gen. Goltiao as the officer in who are applying for the scholar [sic] and were denied which was
command of the area of disappearance to form TASK FORCE TAGITIS.[18] allegedly conducted/screened by the subject being the coordinator of
said program.
Task Force Tagitis
20. It is also premature to conclude but it does or it may and [sic] presumed that
On January 11, 2008, Gen. Goltiao designated PS Supt. Ahiron Ajirim (PS Supt. Ajirim) to head the motive behind the disappearance of the subject might be due to the
TASK FORCE TAGITIS.[19] The CA subsequently set three hearings to monitor whether TASK funds he maliciously spent for his personal interest and wanted to elude
FORCE TAGITIS was exerting extraordinary efforts in handling the disappearance of responsibilities from the institution where he belong as well as to the
Tagitis.[20] As planned, (1) the first hearing would be to mobilize the CIDG, Zamboanga City; Islamic student scholars should the statement of Prof. Matli be true or
(2) the second hearing would be to mobilize intelligence with Abu Sayyaf and ARMM; and (3) there might be a professional jealousy among them.
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] xxxx
In the hearing on January 17, 2008, TASK FORCE TAGITIS submitted to the CA an intelligence It is recommended that the Writ of Amparo filed against the respondents
report from PSL Usman S. Pingay, the Chief of Police of the Jolo Police Station, stating a be dropped and dismissed considering on [sic] the police and military
possible motive for Tagitis disappearance.[22] The intelligence report was apparently based on actions in the area particularly the CIDG are exerting their efforts and
the sworn affidavit dated January 4, 2008 of Muhammad Abdulnazeir N. Matli (Prof. Matli), religiously doing their tasked [sic] in the conduct of its intelligence
Professor of Islamic Studies at the University of the Philippines and an Honorary Student monitoring and investigation for the early resolution of this instant
Counselor of the IDB Scholarship Program in the Philippines, who told the Provincial case. But rest assured, our office, in coordination with other law-
Governor of Sulu that:[23] enforcement agencies in the area, are continuously and religiously
conducting our investigation for the resolution of this case.
[Based] on reliable information from the Office of Muslim Affairs in
Manila, Tagitis has reportedly taken and carried away more or less Five On February 4, 2008, the CA issued an ALARM WARNING that TASK FORCE TAGITIS did not
Million Pesos (P5,000,000.00) deposited and entrusted to his [personal] appear to be exerting extraordinary efforts in resolving Tagitis disappearance on the
bank accounts by the Central Office of IDB, Jeddah, Kingdom of Saudi following grounds:[28]
Arabia, which [was] intended for the IDB Scholarship Fund.
(1) This Court FOUND that it was only as late as January
In the same hearing, PS Supt. Ajirim testified that since the CIDG was alleged to be 28, 2008, after the hearing, that GEN. JOEL GOLTIAO and COL. AHIRON
responsible, he personally went to the CIDG office in Zamboanga City to conduct an ocular AJIRIM had requested for clear photographs when it should have been
inspection/investigation, particularly of their detention cells.[24] PS Supt. Ajirim stated that standard operating procedure in kidnappings or disappearances that the
the CIDG, while helping TASK FORCE TAGITIS investigate the disappearance of Tagitis, first agenda was for the police to secure clear pictures of the missing
persistently denied any knowledge or complicity in any abduction.[25] He further testified that person, Engr. Morced Tagitis, for dissemination to all parts of the country
prior to the hearing, he had already mobilized and given specific instructions to their and to neighboring countries. It had been three (3) months since GEN.
supporting units to perform their respective tasks; that they even talked to, but failed to get JOEL GOLTIAO admitted having been informed on November 5, 2007 of
any lead from the respondent in Jolo.[26] In his submitted investigation report dated January the alleged abduction of Engr. Morced Tagitis by alleged bad elements of
16, 2008, PS Supt. Ajirim concluded:[27] 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

12
January 17, 2008. It was only on January 28, 2008 when the Task Force Kunnong to report her husbands disappearance to the Jolo Police Station, since she had the
Tagitis requested for clear and recent photographs of the missing person, impression that her husband could not communicate with her because his cellular phones
Engr. Morced Tagitis, despite the Task Force Tagitis claim that they battery did not have enough power, and that he would call her when he had fully-charged his
already had an all points bulletin, since November 5, 2007, on the missing cellular phones battery.[36]
person, Engr. Morced Tagitis. How could the police look for someone
who disappeared if no clear photograph had been disseminated? 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
(2) Furthermore, Task Force Tagitis COL. AHIROM him in Camp Karingal, Zamboanga through her boss.[37] She also testified that she was with
AJIRIM informed this Court that P/Supt KASIM was designated as Col. three other people, namely, Mrs. Marydel Martin Talbin and her two friends from Mati City,
Ahirom Ajirims replacement in the latters official designated post. Yet, Davao Oriental, when Col. Kasim read to them the contents of the highly confidential report
P/Supt KASIMs subpoena was returned to this Court unserved. Since this at Camp Katitipan, Davao City. The respondent further narrated that the report indicated
Court was made to understand that it was P/Supt KASIM who was the that her husband met with people belonging to a terrorist group and that he was under
petitioners unofficial source of the military intelligence information that custodial investigation. She then told Col. Kasim that her husband was a diabetic taking
Engr. Morced Tagitis was abducted by bad elements of the CIDG (par. 15 maintenance medication, and asked that the Colonel relay to the persons holding him the
of the Petition), the close contact between P/Supt KASIM and Col. Ahirom need to give him his medication.[38]
Ajirim of TASK FORCE TAGITIS should have ensured the appearance of
Col. KASIM in response to this courts subpoena and COL. KASIM could On February 11, 2008, TASK FORCE TAGITIS submitted two narrative
have confirmed the military intelligence information that bad elements of reports,[39] signed by the respondent, detailing her efforts to locate her husband which led to
the CIDG had abducted Engr. Morced Tagitis. 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.
Testimonies for the Respondent Marydel Talbin. Our flight from Davao City is 9:00 oclock in the morning;
On January 7, 2008, the respondent, Mary Jean B. Tagitis, testified on direct examination that we arrived at Zamboanga Airport at around 10:00 oclock. We [were]
she went to Jolo and Zamboanga in her efforts to locate her husband. She said that a friend fetched by the two staffs of Col. Ancanan. We immediately proceed [sic]
from Zamboanga holding a high position in the military (whom she did not then identify) to West Mindanao Command (WESTMINCOM).
gave her information that allowed her to specify her allegations, particularly paragraph 15 of On that same day, we had private conversation with Col. Ancanan. He
the petition.[29] This friend also told her that her husband [was] in good hands.[30] The interviewed me and got information about the personal background of
respondent also testified that she sought the assistance of her former boss in Davao City, Engr. Morced N. Tagitis. After he gathered all information, he revealed to
Land Bank Bajada Branch Manager Rudy Salvador, who told her that PNP CIDG is holding [her us the contents of text messages they got from the cellular phone of the
husband], Engineer Morced Tagitis.[31] The respondent recounted that she went to Camp subject Engr. Tagitis. One of the very important text messages of Engr.
Katitipan in Davao City where she met Col. Julasirim Ahadin Kasim (Col. Kasim/Sr. Supt Kasim) Tagitis sent to his daughter Zaynah Tagitis was that she was not allowed
who read to her and her friends (who were then with her) a highly confidential report that to answer any telephone calls in his condominium unit.
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 While we were there he did not tell us any information of the
Islamiah.[32] 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
On January 17, 2008, the respondent on cross-examination testified that she is Tagitis second mall to purchase our plane ticket going back to Davao City on November
wife, and they have been married for thirteen years; Tagitis was divorced from his first 12, 2007.
wife.[33] She last communicated with her husband on October 29, 2007 at around 7:31 p.m. When we arrived in Davao City on November 12, 2007 at 9:00 in the
through text messaging; Tagitis was then on his way to Jolo, Sulu, from Zamboanga City.[34] 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
The respondent narrated that she learned of her husbands disappearance on October 30, Talipapao, Jolo, Sulu. Yet I did not believe his given statements of the
2007 when her stepdaughter, Zaynah Tagitis (Zaynah), informed her that she had not heard whereabouts of my husband, because I contacted some of my friends
from her father since the time they arranged to meet in Manila on October 31, 2007.[35] The who have access to the groups of MILF, MNLF and ASG. I called up Col.
respondent explained that it took her a few days (or on November 5, 2007) to personally ask

13
Ancanan several times begging to tell me the exact location of my
husband and who held him but he refused. 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
While I was in Jolo, Sulu on November 30, 2007, I called him up again custody of the military for custodial investigation.I told him to please take
because the PNP, Jolo did not give me any information of the care of my husband because he has aliments and he recently took insulin
whereabouts of my husband. Col. Ancanan told me that Sana ngayon for he is a diabetic patient.
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 In my petition for writ of amparo, I emphasized the information that I got
was hesitant to pay him a visit for the reason that the Chief of Police of from Kasim.
Jolo told me not to contact any AFP officials and he promised me that he On February 11, 2008, the respondent presented Mrs. Marydel Martin Talbin (Mrs. Talbin) to
can solve the case of my husband (Engr. Tagitis) within nine days. 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
I appreciate the effort of Col. Ancanan on trying to solve the case of my was with the respondent when she went to Zamboanga to see Col. Ancanan, and to Davao
husband Engr. Morced Tagitis, yet failed to do so. City at Camp Katitipan to meet Col. Kasim.[42]

In Zamboanga, Mrs. Talbin recounted that they met with Col. Ancanan, who told them that
The respondent also narrated her encounter with Col. Kasim, as follows:[41] there was a report and that he showed them a series of text messages from Tagitis cellular
On November 7, 2007, I went to Land Bank of the Philippines, Bajada phone, which showed that Tagitis and his daughter would meet in Manila on October 30,
Branch, Davao City to meet Mr. Rudy Salvador. I told him that my 2007.[43]
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 She further narrated that sometime on November 24, 2007, she went with the respondent
in the military in Jolo, Sulu where the abduction of Engr. Tagitis took together with two other companions, namely, Salvacion Serrano and Mini Leong, to Camp
place. Mr. Salvador immediately called up Camp Katitipan located in Katitipan to talk to Col. Kasim.[44] The respondent asked Col. Kasim if he knew the exact
Davao City looking for high-ranking official who can help me gather location of Engr. Tagitis. Col. Kasim told them that Tagitis was in good hands, although he
reliable information behind the abduction of subject Engineer Tagitis. 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,
On that same day, Mr. Salvador and my friend, Anna Mendoza, Executive Tagitis was under custodial investigation because he was being charged with terrorism;
Secretary, accompanied me to Camp Katitipan to meet Col. Kasim. Mr. Tagitis in fact had been under surveillance since January 2007 up to the time he was
Salvador introduced me to Col. Kasim and we had a short abducted when he was seen talking to Omar Patik and a certain Santos of Bulacan, a Balik
conversation. And he assured me that hell do the best he can to help me Islam charged with terrorism. Col. Kasim also told them that he could not give a copy of the
find my husband. 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
After a few weeks, Mr. Salvador called me up informing me up informing yan.[50] Prof. Matli also emphasized that despite what his January 4, 2008 affidavit

me that I am to go to Camp Katitipan to meet Col. Kasim for he has an indicated,[51] he never told PS Supt. Pingay, or made any accusation, that Tagitis took away
urgent, confidential information to reveal. 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
On November 24, 2007, we went back to Camp Katitipan with my three seeking assistance of the office in locating the funds of IDB scholars deposited in Tagitis
friends. That was the time that Col. Kasim read to us the confidential personal account.[54]
report that Engr. Tagitis was allegedly connected [with] different terrorist
[groups], one of which he mentioned in the report was OMAR PATIK and On cross-examination by the respondents counsel, Prof. Matli testified that his January 4,
a certain SANTOS - a Balik Islam. 2008 affidavit was already prepared when PS Supt. Pingay asked him to sign it. [55]Prof Matli
It is also said that Engr. Tagitis is carrying boxes of medicines for the clarified that although he read the affidavit before signing it, he was not so much aware of
injured terrorists as a supplier. These are the two information that I can [its] contents.[56]
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 On February 11, 2008, the petitioners presented Col. Kasim to rebut material portions of the
it for us. respondents testimony, particularly the allegation that he had stated that Tagitis was in the

14
custody of either the military or the PNP.[57] Col. Kasim categorically denied the statements carried great weight in the intelligence world. It also labeled as suspect Col. Kasims
made by the respondent in her narrative report, specifically: (1) that Tagitis was seen subsequent and belated retraction of his statement that the military, the police, or the CIDG
carrying boxes of medicines as supplier for the injured terrorists; (2) that Tagitis was under was involved in the abduction of Tagitis.
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 The CA characterized as too farfetched and unbelievable and a bedlam of speculation police
under custodial investigation by the military, the PNP or the CIDG Zamboanga City.[58] Col. theories painting the disappearance as intentional on the part of Tagitis. He had no previous
Kasim emphasized that the informal letter he received from his informant in Sulu did not brushes with the law or any record of overstepping the bounds of any trust regarding money
indicate that Tagitis was in the custody of the CIDG. [59] He also stressed that the information entrusted to him; no student of the IDB scholarship program ever came forward to complain
he provided to the respondent was merely a raw report sourced from barangay that he or she did not get his or her stipend. The CA also found no basis for the police theory
intelligence that still needed confirmation and follow-up as to its veracity.[60] that Tagitis was trying to escape from the clutches of his second wife, on the basis of the
On cross-examination, Col. Kasim testified that the information he gave the respondent was respondents testimony that Tagitis was a Muslim who could have many wives under the
given to him by his informant, who was a civilian asset, through a letter which he considered Muslim faith, and that there was no issue at all when the latter divorced his first wife in order
as unofficial.[61] Col. Kasim stressed that the letter was only meant for his consumption and to marry the second. Finally, the CA also ruled out kidnapping for ransom by the Abu Sayyaf
not for reading by others.[62] He testified further that he destroyed the letter right after he or by the ARMM paramilitary as the cause for Tagitis disappearance, since the respondent,
read it to the respondent and her companions because it was not important to him and also the police and the military noted that there was no acknowledgement of Tagitis abduction or
because the information it contained had no importance in relation with the abduction of demand for payment of ransom the usual modus operandi of these terrorist groups.
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 Based on these considerations, the CA thus extended the privilege of the writ to Tagitis and
abduction.[64] 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
In the same hearing on February 11, 2008, the petitioners also presented Police Senior Sr. Supt. Leonardo A. Espina to exert extraordinary diligence and efforts to protect the life,
Superintendent Jose Volpane Pante (Col. Pante), Chief of the CIDG-9, to disprove the liberty and security of Tagitis, with the obligation to provide monthly reports of their actions
respondents allegation that Tagitis was in the custody of CIDG-Zamboanga City.[65] Col. Pante to the CA. At the same time, the CA dismissed the petition against the then respondents from
clarified that the CIDG was the investigative arm of the PNP, and that the CIDG investigates the military, Lt. Gen Alexander Yano and Gen. Ruben Rafael, based on the finding that it was
and prosecutes all cases involving violations in the Revised Penal Code particularly those PNP-CIDG, not the military, that was involved.
considered as heinous crimes.[66] Col. Pante further testified that the allegation that 9 RCIDU On March 31, 2008, the petitioners moved to reconsider the CA decision, but the CA denied
personnel were involved in the disappearance of Tagitis was baseless, since they did not the motion in its Resolution of April 9, 2008.[73]
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 THE PETITION
conduct any operation, since they were only assigned to investigate matters and to monitor In this Rule 45 appeal questioning the CAs March 7, 2008 decision, the petitioners mainly
the terrorism situation.[68] He denied that his office conducted any surveillance on Tagitis dispute the sufficiency in form and substance of the Amparo petition filed before the CA; the
prior to the latters disappearance.[69] Col. Pante further testified that his investigation of sufficiency of the legal remedies the respondent took before petitioning for the writ; the
Tagitis disappearance was unsuccessful; the investigation was still facing a blank wall on the finding that the rights to life, liberty and security of Tagitis had been violated; the sufficiency
whereabouts of Tagitis.[70] 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
THE CA RULING respondent discharged the burden of proving the allegations of the petition by substantial
On March 7, 2008, the CA issued its decision[71] confirming that the disappearance of Tagitis evidence.[74]
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 THE COURTS RULING
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 We do not find the petition meritorious.
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, Sufficiency in Form and Substance
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 In questioning the sufficiency in form and substance of the
to the CIDGs involvement in Tagitis abduction.The CA held that raw reports from an asset respondents Amparo petition, the petitioners contend that the petition violated Section 5(c),

15
(d), and (e) of the Amparo Rule. Specifically, the petitioners allege that the respondent failed
to: 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
1) allege any act or omission the petitioners committed in violation of Tagitis contains the details available to the petitioner under the circumstances, while presenting a
rights to life, liberty and security; cause of action showing a violation of the victims rights to life, liberty and security through
2) allege in a complete manner how Tagitis was abducted, the persons State or private party action. The petition should likewise be read in its totality, rather than in
responsible for his disappearance, and the respondents source of information; terms of its isolated component parts, to determine if the required elements namely, of the
3) allege that the abduction was committed at the petitioners instructions or with disappearance, the State or private action, and the actual or threatened violations of the
their consent; rights to life, liberty or security are present.
4) implead the members of CIDG regional office in Zamboanga alleged to have
custody over her husband; In the present case, the petition amply recites in its paragraphs 4 to 11 the
5) attach the affidavits of witnesses to support her accusations; circumstances under which Tagitis suddenly dropped out of sight after engaging in normal
6) allege any action or inaction attributable to the petitioners in the performance activities, and thereafter was nowhere to be found despite efforts to locate him. The petition
of their duties in the investigation of Tagitis disappearance; and alleged, too, under its paragraph 7, in relation to paragraphs 15 and 16, that according to
7) specify what legally available efforts she took to determine the fate or reliable information, police operatives were the perpetrators of the abduction. It also clearly
whereabouts of her husband. 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
A petition for the Writ of Amparo shall be signed and verified and shall allege, intelligence operatives, and then taken into custody by the respondents police intelligence
among others (in terms of the portions the petitioners cite):[75] 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
(c) The right to life, liberty and security of the aggrieved party violated terrorist groups.[77]
or threatened with violation by an unlawful act or omission of the
respondent, and how such threat or violation is committed with the These allegations, in our view, properly pleaded ultimate facts within the pleaders
attendant circumstances detailed in supporting affidavits; 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
(d) The investigation conducted, if any, specifying the names, personal about his whereabouts, as well as the actual violation of his right to liberty. Thus, the petition
circumstances, and addresses of the investigating authority or cannot be faulted for any failure in its statement of a cause of action.
individuals, as well as the manner and conduct of the investigation,
together with any report; 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
(e) The actions and recourses taken by the petitioner to determine the the proceedings for the writ and to facilitate the resolution of the petition, the Amparo Rule
fate or whereabouts of the aggrieved party and the identity of the incorporated the requirement for supporting affidavits, with the annotation that these can
person responsible for the threat, act or omission; and 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
The framers of the Amparo Rule never intended Section 5(c) to be complete in followed. Where, as in this case, the petitioner has substantially complied with the
every detail in stating the threatened or actual violation of a victims rights. As in any other requirement by submitting a verified petition sufficiently detailing the facts relied upon, the
initiatory pleading, the pleader must of course state the ultimate facts constituting the cause strict need for the sworn statement that an affidavit represents is essentially fulfilled. We
of action, omitting the evidentiary details.[76] In an Amparo petition, however, this note that the failure to attach the required affidavits was fully cured when the respondent
requirement must be read in light of the nature and purpose of the proceeding, which and her witness (Mrs. Talbin) personally testified in the CA hearings held on January 7 and 17
addresses a situation of uncertainty; the petitioner may not be able to describe with and February 18, 2008 to swear to and flesh out the allegations of the petition. Thus, even on
certainty how the victim exactly disappeared, or who actually acted to kidnap, abduct or this point, the petition cannot be faulted.
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 Section 5(d) of the Amparo Rule requires that prior investigation of an alleged
require the level of specificity, detail and precision that the petitioners apparently want to disappearance must have been made, specifying the manner and results of the
read into the Amparo Rule is to make this Rule a token gesture of judicial concern for investigation.Effectively, this requirement seeks to establish at the earliest opportunity the
violations of the constitutional rights to life, liberty and security.

16
level of diligence the public authorities undertook in relation with the reported boarded the latter on a motor vehicle then sped away without the
disappearance.[79] knowledge of his student, Arsimin Kunnong;
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 xxxx
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 10. When Kunnong could not locate Engr. Tagitis, the former sought the help of
had disappeared. The police, however, gave them the ready answer that Tagitis could have another IDB scholar and reported the matter to the local police agency;
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 11. Arsimin Kunnong, including his friends and companions in Jolo, exerted efforts
Police Station in Cotobato and in Jolo, but she was told of an intriguing tale by the police that in trying to locate the whereabouts of Engr. Tagitis and when he reported
her husband was having a good time with another woman. The disappearance was alleged to the matter to the police authorities in Jolo, he was immediately given a
have been reported, too, to no less than the Governor of the ARMM, followed by the ready answer that Engr. Tagitis could [have been] abducted by the Abu
respondents personal inquiries that yielded the factual bases for her petition.[80] Sayyaf group and other groups known to be fighting against the
government;
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 12. Being scared with these suggestions and insinuations of the police officers,
state the manner and results of the investigation that the Amparo Rule requires, but rather Kunnong reported the matter to the [respondent](wife of Engr. Tagitis)
generally stated the inaction of the police, their failure to perform their duty to investigate, by phone and other responsible officers and coordinators of the IDB
or at the very least, their reported failed efforts, should not be a reflection on the Scholarship Programme in the Philippines who alerted the office of the
completeness of the petition. To require the respondent to elaborately specify the names, Governor of ARMM who was then preparing to attend the OIC meeting in
personal circumstances, and addresses of the investigating authority, as well the manner and Jeddah, Saudi Arabia;
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 13. [The respondent], on the other hand, approached some of her co-
circumstances, we are more than satisfied that the allegations of the petition on the employees with the Land Bank in Digos branch, Digos City, Davao del Sur,
investigations undertaken are sufficiently complete for purposes of bringing the petition who likewise sought help from some of their friends in the military who
forward. could help them find/locate the whereabouts of her husband;

Section 5(e) is in the Amparo Rule to prevent the use of a petition that otherwise is xxxx
not supported by sufficient allegations to constitute a proper cause of action as a means to 15. According to reliable information received by the [respondent], subject Engr.
fish for evidence.[81] The petitioners contend that the respondents petition did not specify Tagitis is in the custody of police intelligence operatives, specifically with
what legally available efforts were taken by the respondent, and that there was an undue the CIDG, PNP Zamboanga City, being held against his will in an earnest
haste in the filing of the petition when, instead of cooperating with authorities, the attempt of the police to involve and connect Engr. Tagitis with the
respondent immediately invoked the Courts intervention. different terrorist groups;

We do not see the respondents petition as the petitioners view it. xxxx
17. [The respondent] filed her complaint with the PNP Police Station at the ARMM
Section 5(e) merely requires that the Amparo petitioner (the respondent in the in Cotobato and in Jolo, as suggested by her friends, seeking their help to
present case) allege the actions and recourses taken to determine the fate or whereabouts of find her husband, but [the respondents] request and pleadings failed to
the aggrieved party and the identity of the person responsible for the threat, act or omission. produce any positive results
The following allegations of the respondents petition duly outlined the actions she had taken xxxx
and the frustrations she encountered, thus compelling her to file her petition. 20. Lately, [respondent] was again advised by one of the [petitioners] to go to the
xxxx ARMM Police Headquarters again in Cotobato City and also to the
7. Soon after the student left the room, Engr. Tagitis went out of the pension house different Police Headquarters including the police headquarters in Davao
to take his early lunch but while out on the street, a couple of burly men City, in Zamboanga City, in Jolo, and in Camp Crame, Quezon City, and all
believed to be police intelligence operatives, forcibly took him and these places have been visited by the [respondent] in search for her
husband, which entailed expenses for her trips to these places thereby

17
resorting her to borrowings and beggings [sic] for financial help from 1) those of people arrested without witnesses or without positive
friends and relatives only to try complying to the different suggestions of identification of the arresting agents and are never found again;
these police officers, despite of which, her efforts produced no positive
results up to the present time; 2) those of prisoners who are usually arrested without an appropriate
warrant and held in complete isolation for weeks or months while
xxxx their families are unable to discover their whereabouts and the
25. [The respondent] has exhausted all administrative avenues and military authorities deny having them in custody until they
remedies but to no avail, and under the circumstances, [respondent] has eventually reappear in one detention center or another; and
no other plain, speedy and adequate remedy to protect and get the
release of subject Engr. Morced Tagitis from the illegal clutches of [the 3) those of victims of salvaging who have disappeared until their
petitioners], their intelligence operatives and the like which are in total lifeless bodies are later discovered.[88]
violation of the subjects human and constitutional rights, except the
issuance of a WRIT OF AMPARO. 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
Based on these considerations, we rule that the respondents petition for the Writ 1986. Of this number, 595 remained missing, 132 surfaced alive and 127 were found dead.
of Amparo is sufficient in form and substance and that the Court of Appeals had every reason During former President Corazon C. Aquinos term, 820 people were reported to have
to proceed with its consideration of the case. 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
The Desaparecidos 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
The present case is one of first impression in the use and application of the Rule on cases. KARAPATAN, a local non-governmental organization, reports that as of March 31,
the Writ of Amparo in an enforced disappearance situation. For a deeper appreciation of the 2008, the records show that there were a total of 193 victims of enforced disappearance
application of this Rule to an enforced disappearance situation, a brief look at the historical under incumbent President Gloria M. Arroyos administration. The Commission on Human
context of the writ and enforced disappearances would be very helpful. 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
The phenomenon of enforced disappearance arising from State action first still have undetermined status.[90] Currently, the United Nations Working Group on Enforced
attracted notice in Adolf Hitlers Nact und Nebel Erlass or Night and Fog Decree of December or Involuntary Disappearance[91] reports 619 outstanding cases of enforced or involuntary
7, 1941.[82] The Third Reichs Night and Fog Program, a State policy, was directed at persons in disappearances covering the period December 1, 2007 to November 30, 2008.[92]
occupied territories endangering German security; they were transported secretly to
Germany where they disappeared without a trace. In order to maximize the desired Enforced Disappearances
intimidating effect, the policy prohibited government officials from providing information Under Philippine Law
about the fate of these targeted persons.[83]
The Amparo Rule expressly provides that the writ shall cover extralegal killings and
In the mid-1970s, the phenomenon of enforced disappearances resurfaced, enforced disappearances or threats thereof.[93] We note that although the writ specifically
shocking and outraging the world when individuals, numbering anywhere from 6,000 to covers enforced disappearances, this concept is neither defined nor penalized in this
24,000, were reported to have disappeared during the military regime in Argentina. Enforced jurisdiction. The records of the Supreme Court Committee on the Revision of Rules
disappearances spread in Latin America, and the issue became an international concern (Committee) reveal that the drafters of the Amparo Rule initially considered providing an
when the world noted its widespread and systematic use by State security forces in that elemental definition of the concept of enforced disappearance:[94]
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 JUSTICE MARTINEZ: I believe that first and foremost we should come up
part of governments counter-insurgency campaigns. As this form of political brutality became or formulate a specific definition [for] extrajudicial killings and enforced
routine elsewhere in the continent, the Latin American media standardized the term disappearances. From that definition, then we can proceed to formulate
disappearance to describe the phenomenon. The victims of enforced disappearances were the rules, definite rules concerning the same.
called the desaparecidos,[86] which literally means the disappeared ones.[87] In general, there
are three different kinds of disappearance cases: CHIEF JUSTICE PUNO: As things stand, there is no law penalizing
extrajudicial killings and enforced disappearances so initially also we

18
have to [come up with] the nature of these extrajudicial killings and
enforced disappearances [to be covered by the Rule] because our Lest this Court intervention be misunderstood, we clarify once again that we do not
concept of killings and disappearances will define the jurisdiction of the rule on any issue of criminal culpability for the extrajudicial killing or enforced
courts. So well have to agree among ourselves about the nature of killings disappearance. This is an issue that requires criminal action before our criminal courts based
and disappearances for instance, in other jurisdictions, the rules only on our existing penal laws. Our intervention is in determining whether an enforced
cover state actors. That is an element incorporated in their concept of disappearance has taken place and who is responsible or accountable for this disappearance,
extrajudicial killings and enforced disappearances. In other jurisdictions, and to define and impose the appropriate remedies to address it. The burden for the public
the concept includes acts and omissions not only of state actors but also authorities to discharge in these situations, under the Rule on the Writ of Amparo, is
of non state actors. Well, more specifically in the case of the Philippines twofold. The first is to ensure that all efforts at disclosure and investigation are undertaken
for instance, should these rules include the killings, the disappearances under pain of indirect contempt from this Court when governmental efforts are less than
which may be authored by let us say, the NPAs or the leftist organizations what the individual situations require. The second is to address the disappearance, so that
and others. So, again we need to define the nature of the extrajudicial the life of the victim is preserved and his or her liberty and security restored. In these senses,
killings and enforced disappearances that will be covered by these rules. our orders and directives relative to the writ are continuing efforts that are not truly
[Emphasis supplied] [95] 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
In the end, the Committee took cognizance of several bills filed in the House of the disappeared person and the restoration of his or her liberty and security, and, in the
Representatives[96] and in the Senate[97] on extrajudicial killings and enforced disappearances, proper case, by the commencement of criminal action against the guilty parties.
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 Enforced Disappearance
may intrude into the ongoing legislative efforts.[98] Under International Law

As the law now stands, extra-judicial killings and enforced disappearances in this From the International Law perspective, involuntary or enforced disappearance is
jurisdiction are not crimes penalized separately from the component criminal acts considered a flagrant violation of human rights.[101] It does not only violate the right to life,
undertaken to carry out these killings and enforced disappearances and are now penalized liberty and security of the desaparecido; it affects their families as well through the denial of
under the Revised Penal Code and special laws.[99] The simple reason is that the Legislature their right to information regarding the circumstances of the disappeared family
has not spoken on the matter; the determination of what acts are criminal and what the member. Thus, enforced disappearances have been said to be a double form of torture, with
corresponding penalty these criminal acts should carry are matters of substantive law that doubly paralyzing impact for the victims, as they are kept ignorant of their own fates, while
only the Legislature has the power to enact under the countrys constitutional scheme and family members are deprived of knowing the whereabouts of their detained loved ones and
power structure. suffer as well the serious economic hardship and poverty that in most cases follow the
disappearance of the household breadwinner.[102]
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 The UN General Assembly first considered the issue of Disappeared Persons in
under its own constitutional mandate to promulgate rules concerning the protection and December 1978 under Resolution 33/173. The Resolution expressed the General Assemblys
enforcement of constitutional rights, pleading, practice and procedure in all courts, [100]since deep concern arising from reports from various parts of the world relating to enforced or
extrajudicial killings and enforced disappearances, by their nature and purpose, constitute involuntary disappearances, and requested the UN Commission on Human Rights to consider
State or private party violation of the constitutional rights of individuals to life, liberty and the issue of enforced disappearances with a view to making appropriate
security. Although the Courts power is strictly procedural and as such does not diminish, recommendations.[103]
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 In 1992, in response to the reality that the insidious practice of enforced
enforced disappearances. The Court, through its procedural rules, can set the procedural disappearance had become a global phenomenon, the UN General Assembly adopted
standards and thereby directly compel the public authorities to act on actual or threatened the Declaration on the Protection of All Persons from Enforced
violations of constitutional rights. To state the obvious, judicial intervention can make a Disappearance (Declaration).[104] This Declaration, for the first time, provided in its third
difference even if only procedurally in a situation when the very same investigating public preambular clause a working description of enforced disappearance, as follows:
authorities may have had a hand in the threatened or actual violations of constitutional
rights.

19
Deeply concerned that in many countries, often in a persistent constitutional rights to life, liberty and security that the Supreme Court is mandated by the
manner, enforced disappearances occur, in the sense that persons are Constitution to protect through its rule-making powers.
arrested, detained or abducted against their will or otherwise deprived
of their liberty by officials of different branches or levels of Separately from the Constitution (but still pursuant to its terms), the Court is
Government, or by organized groups or private individuals acting on guided, in acting on Amparo cases, by the reality that the Philippines is a member of the UN,
behalf of, or with the support, direct or indirect, consent or bound by its Charter and by the various conventions we signed and ratified, particularly the
acquiescence of the Government, followed by a refusal to disclose the conventions touching on humans rights. Under the UN Charter, the Philippines pledged to
fate or whereabouts of the persons concerned or a refusal to promote universal respect for, and observance of, human rights and fundamental freedoms
acknowledge the deprivation of their liberty, which places such persons for all without distinctions as to race, sex, language or religion. [112]Although no universal
outside the protection of the law. [Emphasis supplied] 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]
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 Any act of enforced disappearance is an offence to dignity. It is
(Convention).[105] The Convention was opened for signature in Paris, France on February 6, condemned as a denial of the purposes of the Charter of the United
2007.[106] Article 2 of the Convention defined enforced disappearance as follows: Nations and as a grave and flagrant violation of human rights and
fundamental freedoms proclaimed in the Universal Declaration of
For the purposes of this Convention, enforced disappearance is Human Rights and reaffirmed and developed in international instruments
considered to be the arrest, detention, abduction or any other form of in this field. [Emphasis supplied]
deprivation of liberty by agents of the State or by persons or groups of
persons acting with the authorization, support or acquiescence of the As a matter of human right and fundamental freedom and as a policy matter made in a UN
State, followed by a refusal to acknowledge the deprivation of liberty or Declaration, the ban on enforced disappearance cannot but have its effects on the country,
by concealment of the fate or whereabouts of the disappeared person, given our own adherence to generally accepted principles of international law as part of the
which place such a person outside the protection of the law. [Emphasis law of the land.[115]
supplied]
In the recent case of Pharmaceutical and Health Care Association of the Philippines
The Convention is the first universal human rights instrument to assert that there is a right v. Duque III,[116] we held that:
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, Under the 1987 Constitution, international law can become part
be it a state of war, internal political instability, or any other public emergency. It obliges of the sphere of domestic law either by transformation or incorporation.
State Parties to codify enforced disappearance as an offense punishable with appropriate The transformation method requires that an international law be
penalties under their criminal law.[109] It also recognizes the right of relatives of the transformed into a domestic law through a constitutional mechanism
disappeared persons and of the society as a whole to know the truth on the fate and such as local legislation. The incorporation method applies when, by
whereabouts of the disappeared and on the progress and results of the mere constitutional declaration, international law is deemed to have
investigation.[110] Lastly, it classifies enforced disappearance as a continuing offense, such the force of domestic law. [Emphasis supplied]
that statutes of limitations shall not apply until the fate and whereabouts of the victim are
established.[111] 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]

Binding Effect of UN [G]enerally accepted principles of international law, by virtue of


Action on the Philippines 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
To date, the Philippines has neither signed nor ratified the Convention, so that the country is formulation in international law sees those customary rules accepted as
not yet committed to enact any law penalizing enforced disappearance as a crime.The binding result from the combination [of] two elements: the established,
absence of a specific penal law, however, is not a stumbling block for action from this Court, widespread, and consistent practice on the part of States; and
as heretofore mentioned; underlying every enforced disappearance is a violation of the a psychological element known as the opinion juris sive

20
necessitates (opinion as to law or necessity). Implicit in the latter of Restatement of the Law: The Third,[128] which provides that [a] State violates international
element is a belief that the practice in question is rendered obligatory law if, as a matter of State policy, it practices, encourages, or condones (3) the murder or
by the existence of a rule of law requiring it. [Emphasis in the original] causing the disappearance of individuals.[129] We significantly note that in a related matter
that finds close identification with enforced disappearance the matter of torture the United
The most widely accepted statement of sources of international law today is Article States Court of Appeals for the Second Circuit Court held in Filartiga v. Pena-Irala[130] that the
38(1) of the Statute of the International Court of Justice, which provides that the Court shall prohibition on torture had attained the status of customary international law. The court
apply international custom, as evidence of a general practice accepted as law.[118] The further elaborated on the significance of UN declarations, as follows:
material sources of custom include State practice, State legislation, international and
national judicial decisions, recitals in treaties and other international instruments, a pattern These U.N. declarations are significant because they specify
of treaties in the same form, the practice of international organs, and resolutions relating to with great precision the obligations of member nations under the
legal questions in the UN General Assembly.[119] Sometimes referred to as evidence of Charter. Since their adoption, "(m)embers can no longer contend that
international law,[120] these sources identify the substance and content of the obligations of they do not know what human rights they promised in the Charter to
States and are indicative of the State practice and opinio juris requirements of international promote. Moreover, a U.N. Declaration is, according to one authoritative
law.[121] We note the following in these respects: definition, "a formal and solemn instrument, suitable for rare occasions
when principles of great and lasting importance are being enunciated.
First, barely two years from the adoption of the Declaration, the Organization of Accordingly, it has been observed that the Universal Declaration of
American States (OAS) General Assembly adopted the Inter-American Convention on Human Rights "no longer fits into the dichotomy of binding treaty against
Enforced Disappearance of Persons in June 1994.[122] State parties undertook under this non-binding pronouncement,' but is rather an authoritative statement of
Convention not to practice, permit, or tolerate the forced disappearance of persons, even in the international community." Thus, a Declaration creates an expectation
states of emergency or suspension of individual guarantees.[123] One of the key provisions of adherence, and "insofar as the expectation is gradually justified by
includes the States obligation to enact the crime of forced disappearance in their respective State practice, a declaration may by custom become recognized as laying
national criminal laws and to establish jurisdiction over such cases when the crime was down rules binding upon the States." Indeed, several commentators have
committed within their jurisdiction, when the victim is a national of that State, and when the concluded that the Universal Declaration has become, in toto, a part of
alleged criminal is within its territory and it does not proceed to extradite him, which can be binding, customary international law. [Citations omitted]
interpreted as establishing universal jurisdiction among the parties to the Inter-American Fourth, in interpreting Article 2 (right to an effective domestic remedy) of the
Convention.[124] At present, Colombia, Guatemala, Paraguay, Peru and Venezuela have International Convention on Civil and Political Rights (ICCPR), to which the Philippines is both
enacted separate laws in accordance with the Inter-American Convention and have defined a signatory and a State Party, the UN Human Rights Committee, under the Office of the High
activities involving enforced disappearance to be criminal.[125] 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
Second, in Europe, the European Convention on Human Rights has no explicit punishment) and 9 (right to liberty and security of the person) of the ICCPR, and the act may
provision dealing with the protection against enforced disappearance. The European Court of also amount to a crime against humanity.[131]
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 Fifth, Article 7, paragraph 1 of the 1998 Rome Statute establishing the International
Conventions Article 2 on the right to life; Article 3 on the prohibition of torture; Article 5 on Criminal Court (ICC) also covers enforced disappearances insofar as they are defined as
the right to liberty and security; Article 6, paragraph 1 on the right to a fair trial; and Article crimes against humanity,[132] i.e., crimes committed as part of a widespread or systematic
13 on the right to an effective remedy. A leading example demonstrating the protection attack against any civilian population, with knowledge of the attack. While more than 100
afforded by the European Convention is Kurt v. Turkey,[126] where the ECHR found a violation countries have ratified the Rome Statute,[133] the Philippines is still merely a signatory and
of the right to liberty and security of the disappeared person when the applicants son has not yet ratified it. We note that Article 7(1) of the Rome Statute has been incorporated in
disappeared after being taken into custody by Turkish forces in the Kurdish village of Agilli in the statutes of other international and hybrid tribunals, including Sierra Leone Special Court,
November 1993. It further found the applicant (the disappeared persons mother) to be a the Special Panels for Serious Crimes in Timor-Leste, and the Extraordinary Chambers in the
victim of a violation of Article 3, as a result of the silence of the authorities and the Courts of Cambodia.[134] In addition, the implementing legislation of State Parties to the
inadequate character of the investigations undertaken. The ECHR also saw the lack of any Rome Statute of the ICC has given rise to a number of national criminal provisions also
meaningful investigation by the State as a violation of Article 13.[127] covering enforced disappearance.[135]

Third, in the United States, the status of the prohibition on enforced disappearance While the Philippines is not yet formally bound by the terms of the Convention on
as part of customary international law is recognized in the most recent edition enforced disappearance (or by the specific terms of the Rome Statute) and has not formally

21
declared enforced disappearance as a specific crime, the above recital shows that enforced accessible and effective remedies to vindicate those rights The
disappearance as a State practice has been repudiated by the international community, so Committee attaches importance to States Parties' establishing
that the ban on it is now a generally accepted principle of international law, which we appropriate judicial and administrative mechanisms for addressing
should consider a part of the law of the land, and which we should act upon to the extent claims of rights violations under domestic law Administrative
already allowed under our laws and the international conventions that bind us. mechanisms are particularly required to give effect to the general
The following civil or political rights under the Universal Declaration of Human obligation to investigate allegations of violations promptly, thoroughly
Rights, the ICCPR and the International Convention on Economic, Social and Cultural Rights and effectivelythrough independent and impartial bodies. A failure by a
(ICESR) may be infringed in the course of a disappearance:[136] 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
1) the right to recognition as a person before the law; violation is an essential element of the right to an effective remedy.
2) the right to liberty and security of the person; [Emphasis supplied]
3) the right not to be subjected to torture and other cruel, inhuman or
degrading treatment or punishment; The UN Human Rights Committee further stated in the same General Comment No.
4) the right to life, when the disappeared person is killed; 31 that failure to investigate as well as failure to bring to justice the perpetrators of ICCPR
5) the right to an identity; violations could in and of itself give rise to a separate breach of the Covenant, thus:[138]
6) the right to a fair trial and to judicial guarantees;
7) the right to an effective remedy, including reparation and 18. Where the investigations referred to in paragraph 15 reveal violations
compensation; of certain Covenant rights, States Parties must ensure that those
8) the right to know the truth regarding the circumstances of a responsible are brought to justice. As with failure to investigate, failure
disappearance. to bring to justice perpetrators of such violations could in and of itself
9) the right to protection and assistance to the family; give rise to a separate breach of the Covenant. These obligations arise
10) the right to an adequate standard of living; notably in respect of those violations recognized as criminal under
11) the right to health; and either domestic or international law, such as torture and similar cruel,
12) the right to education [Emphasis supplied] inhuman and degrading treatment (article 7), summary and arbitrary
killing (article 6) and enforced disappearance (articles 7 and 9 and,
Article 2 of the ICCPR, which binds the Philippines as a state party, provides: frequently, 6). Indeed, the problem of impunity for these violations, a
Article 2 matter of sustained concern by the Committee, may well be an important
3. Each State Party to the present Covenant undertakes: contributing element in the recurrence of the violations. When
(a) To ensure that any person whose rights or freedoms as herein committed as part of a widespread or systematic attack on a civilian
recognized are violated shall have an effective remedy, notwithstanding population, these violations of the Covenant are crimes against humanity
that the violation has been committed by persons acting in an official (see Rome Statute of the International Criminal Court, article 7).
capacity; [Emphasis supplied]
(b) To ensure that any person claiming such a remedy shall have his right
thereto determined by competent judicial, administrative or legislative In Secretary of National Defense v. Manalo,[139] this Court, in ruling that the right to
authorities, or by any other competent authority provided for by the security of persons is a guarantee of the protection of ones right by the government, held
legal system of the State, and to develop the possibilities of judicial that:
remedy;
(c) To ensure that the competent authorities shall enforce such remedies The right to security of person in this third sense is a corollary of the
when granted. [Emphasis supplied] policy that the State guarantees full respect for human rights under
Article II, Section 11 of the 1987 Constitution. As the government is the
In General Comment No. 31, the UN Human Rights Committee opined that the right to an chief guarantor of order and security, the Constitutional guarantee of the
effective remedy under Article 2 of the ICCPR includes the obligation of the State to rights to life, liberty and security of person is rendered ineffective if
investigate ICCPR violations promptly, thoroughly, and effectively, viz:[137] government does not afford protection to these rights especially when
they are under threat. Protection includes conducting effective
15. Article 2, paragraph 3, requires that in addition to effective protection investigations, organization of the government apparatus to extend
of Covenant rights, States Parties must ensure that individuals also have protection to victims of extralegal killings or enforced disappearances

22
(or threats thereof) and/or their families, and bringing offenders to the presented by enforced disappearance cases; these difficulties form part of the setting that
bar of justice. The Inter-American Court of Human Rights stressed the the implementation of the Amparo Rule shall encounter.
importance of investigation in the Velasquez Rodriguez Case, viz:
These difficulties largely arise because the State itself the party whose involvement
(The duty to investigate) must be is alleged investigates enforced disappearances. Past experiences in other jurisdictions show
undertaken in a serious manner and not as a mere that the evidentiary difficulties are generally threefold.
formality preordained to be ineffective. An
investigation must have an objective and be assumed First, there may be a deliberate concealment of the identities of the direct
by the State as its own legal duty, not as a step perpetrators.[141] Experts note that abductors are well organized, armed and usually
taken by private interests that depends upon the members of the military or police forces, thus:
initiative of the victim or his family or upon their
offer of proof, without an effective search for the The victim is generally arrested by the security forces or by persons acting
truth by the government. [Emphasis supplied] 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
Manalo significantly cited Kurt v. Turkey,[140] where the ECHR interpreted the right to generally directed through a separate, clandestine chain of command,
security not only as a prohibition on the State against arbitrary deprivation of liberty, but but they have the necessary credentials to avoid or prevent any
also as the imposition of a positive duty to afford protection to the right to liberty. The Court interference by the "legal" police forces. These authorities take their
notably quoted the following ECHR ruling: victims to secret detention centers where they subject them to
interrogation and torture without fear of judicial or other controls.[142]

[A]ny deprivation of liberty must not only have been effected in In addition, there are usually no witnesses to the crime; if there are, these
conformity with the substantive and procedural rules of national law but witnesses are usually afraid to speak out publicly or to testify on the disappearance out of
must equally be in keeping with the very purpose of Article 5, namely to fear for their own lives.[143] We have had occasion to note this difficulty in Secretary of
protect the individual from arbitrariness... Having assumed control over Defense v. Manalo[144] when we acknowledged that where powerful military officers are
that individual, it is incumbent on the authorities to account for his or her implicated, the hesitation of witnesses to surface and testify against them comes as no
whereabouts. For this reason, Article 5 must be seen as requiring the surprise.
authorities to take effective measures to safeguard against the risk of
disappearance and to conduct a prompt effective investigation into an Second, deliberate concealment of pertinent evidence of the disappearance is a
arguable claim that a person has been taken into custody and has not distinct possibility; the central piece of evidence in an enforced disappearance i.e., the corpus
been seen since. [Emphasis supplied] 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
These rulings effectively serve as the backdrop for the Rule on the Writ of Amparo, family is the States virtual monopoly of access to pertinent evidence. The Inter-American
which the Court made effective on October 24, 2007. Although the Amparo Rule still has gaps Court of Human Rights (IACHR) observed in the landmark case of Velasquez
waiting to be filled through substantive law, as evidenced primarily by the lack of a concrete Rodriguez[146] that inherent to the practice of enforced disappearance is the deliberate use of
definition of enforced disappearance, the materials cited above, among others, provide the States power to destroy the pertinent evidence. The IACHR described the concealment as
ample guidance and standards on how, through the medium of the Amparo Rule, the Court a clear attempt by the State to commit the perfect crime.[147]
can provide remedies and protect the constitutional rights to life, liberty and security that Third is the element of denial; in many cases, the State authorities deliberately
underlie every enforced disappearance. 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
Evidentiary Difficulties Posed escape the application of legal standards ensuring the victims human rights.[149]Experience
by the Unique Nature of an shows that government officials typically respond to requests for information
Enforced Disappearance 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
Before going into the issue of whether the respondent has discharged the burden invented.[150]
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
23
These considerations are alive in our minds, as these are the difficulties we Thus, in these proceedings, the Amparo petitioner needs only to properly comply
confront, in one form or another, in our consideration of this case. 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,
Evidence and Burden of Proof in the respondents must then respond and prove their defenses based on the standard of
Enforced Disappearances Cases 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
Sections 13, 17 and 18 of the Amparo Rule define the nature of authorities to appropriately respond.
an Amparo proceeding and the degree and burden of proof the parties to the case carry, as
follows:
The landmark case of Ang Tibay v. Court of Industrial Relations[151] provided the Court
Section 13. Summary Hearing. The hearing on the petition shall its first opportunity to define the substantial evidence required to arrive at a valid decision in
be summary. However, the court, justice or judge may call for a administrative proceedings. To directly quote Ang Tibay:
preliminary conference to simplify the issues and determine the
possibility of obtaining stipulations and admissions from the parties.
Substantial evidence is more than a mere scintilla. It means
xxxx such relevant evidence as a reasonable mind might accept as adequate
to support a conclusion. [citations omitted] The statute provides that the
Section 17. Burden of Proof and Standard of Diligence Required. The
rules of evidence prevailing in courts of law and equity shall not be
parties shall establish their claims by substantial evidence.
controlling. The obvious purpose of this and similar provisions is to free
The respondent who is a private individual must prove that administrative boards from the compulsion of technical rules so that the
ordinary diligence as required by applicable laws, rules and regulations mere admission of matter which would be deemed incompetent in
was observed in the performance of duty. judicial proceedings would not invalidate the administrative order.
[citations omitted] But this assurance of a desirable flexibility in
The respondent who is a public official or employee must prove
administrative procedure does not go so far as to justify orders without a
that extraordinary diligence as required by applicable laws, rules and
basis in evidence having rational probative force. [Emphasis supplied]
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 In Secretary of Defense v. Manalo,[152] which was the Courts first petition for a Writ
responsibility or liability. of Amparo, we recognized that the full and exhaustive proceedings that the substantial
evidence standard regularly requires do not need to apply due to the summary nature
Section 18. Judgment. If the allegations in the petition are proven by of Amparo proceedings. We said:
substantial evidence, the court shall grant the privilege of the writ and
such reliefs as may be proper and appropriate; otherwise, the privilege The remedy [of the writ of amparo] provides rapid judicial relief
shall be denied. [Emphasis supplied] 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
These characteristics namely, of being summary and the use of substantial reasonable doubt, or liability for damages requiring preponderance of
evidence as the required level of proof (in contrast to the usual preponderance of evidence evidence, or administrative responsibility requiring substantial evidence
or proof beyond reasonable doubt in court proceedings) reveal the clear intent of the that will require full and exhaustive proceedings. [Emphasis supplied]
framers of the Amparo Rule to have the equivalent of an administrative proceeding, albeit Not to be forgotten in considering the evidentiary aspects of Amparo petitions are
judicially conducted, in addressing Amparo situations. The standard of diligence required the the unique difficulties presented by the nature of enforced disappearances, heretofore
duty of public officials and employees to observe extraordinary diligence point, too, to the discussed, which difficulties this Court must frontally meet if the Amparo Rule is to be given a
extraordinary measures expected in the protection of constitutional rights and in the chance to achieve its objectives. These evidentiary difficulties compel the Court to adopt
consequent handling and investigation of extra-judicial killings and enforced disappearance standards appropriate and responsive to the circumstances, without transgressing the due
cases. process requirements that underlie every proceeding.

24
In the seminal case of Velasquez Rodriguez,[153] the IACHR faced with a lack of direct be admissible if it is consistent with the admissible evidence adduced. In other words, we
evidence that the government of Honduras was involved in Velasquez Rodriguez reduce our rules to the most basic test of reason i.e., to the relevance of the evidence to
disappearance adopted a relaxed and informal evidentiary standard, and established the rule the issue at hand and its consistency with all other pieces of adduced evidence. Thus, even
that presumes governmental responsibility for a disappearance if it can be proven that the hearsay evidence can be admitted if it satisfies this basic minimum test.
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 We note in this regard that the use of flexibility in the consideration of evidence is not at all
disappearances could be proven only through circumstantial or indirect evidence or by logical novel in the Philippine legal system. In child abuse cases, Section 28 of the Rule on
inference; otherwise, it was impossible to prove that an individual had been made to Examination of a Child Witness[157] is expressly recognized as an exception to the hearsay
disappear. It held: 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
130. The practice of international and domestic courts shows that direct prerequisites and the right of cross-examination by the adverse party. The admission of the
evidence, whether testimonial or documentary, is not the only type of statement is determined by the court in light of specified subjective and objective
evidence that may be legitimately considered in reaching a considerations that provide sufficient indicia of reliability of the child witness.[158] These
decision. Circumstantial evidence, indicia, and presumptions may be requisites for admission find their counterpart in the present case under the above-described
considered, so long as they lead to conclusions consistent with the facts. conditions for the exercise of flexibility in the consideration of evidence, including hearsay
131. Circumstantial or presumptive evidence is especially important in evidence, in extrajudicial killings and enforced disappearance cases.
allegations of disappearances, because this type of repression is
characterized by an attempt to suppress all information about the Assessment of the Evidence
kidnapping or the whereabouts and fate of the victim. [Emphasis
supplied] 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?
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 The Convention defines enforced disappearance as the arrest, detention, abduction
evidence including the hearsay testimony of Zenaida Velsquez, the victims sister, who or any other form of deprivation of liberty by agents of the State or by persons or groups of
described Manfredos kidnapping on the basis of conversations she had with witnesses who persons acting with the authorization, support or acquiescence of the State, followed by a
saw Manfredo kidnapped by men in civilian clothes in broad daylight. She also told the Court refusal to acknowledge the deprivation of liberty or by concealment of the fate or
that a former Honduran military official had announced that Manfredo was kidnapped by a whereabouts of the disappeared person, which place such a person outside the protection of
special military squadron acting under orders of the Chief of the Armed Forces.[155] The IACHR the law.[159] Under this definition, the elements that constitute enforced disappearance are
likewise considered the hearsay testimony of a second witness who asserted that he had essentially fourfold:[160]
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] (a) arrest, detention, abduction or any form of deprivation of liberty;

Velasquez stresses the lesson that flexibility is necessary under the unique circumstances (b) carried out by agents of the State or persons or groups of persons
that enforced disappearance cases pose to the courts; to have an effective remedy, the acting with the authorization, support or acquiescence of the State;
standard of evidence must be responsive to the evidentiary difficulties faced. On the one (c) followed by a refusal to acknowledge the detention, or a
hand, we cannot be arbitrary in the admission and appreciation of evidence, as arbitrariness concealment of the fate of the disappeared person; and
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 (d) placement of the disappeared person outside the protection of the
other hand, we cannot be very strict in our evidentiary rules and cannot consider evidence law. [Emphasis supplied]
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 We find no direct evidence indicating how the victim actually
observed. Thus, while we must follow the substantial evidence rule, we must observe disappeared. The direct evidence at hand only shows that Tagitis went out of the ASY Pension
flexibility in considering the evidence we shall take into account. 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
The fair and proper rule, to our mind, is to consider all the pieces of evidence adduced in colleagues and even the police authorities is that Tagistis disappeared under mysterious
their totality, and to consider any evidence otherwise inadmissible under our usual rules to

25
circumstances and was never seen again. The respondent injected the causal element in her A: Those alleged activities of Engineer Tagitis, sir.[161] [Emphasis supplied]
petition and testimony, as we shall discuss below.
She confirmed this testimony in her cross-examination:
We likewise find no direct evidence showing that operatives of PNP CIDG
Zamboanga abducted or arrested Tagitis. If at all, only the respondents allegation that Q: You also mentioned that you went to Camp Katitipan in Davao City?
Tagistis was under CIDG Zamboanga custody stands on record, but it is not supported by any
other evidence, direct or circumstantial. A: Yes, maam.

In her direct testimony, the respondent pointed to two sources of information as Q: And a certain Col. Kasim told you that your husband was abducted
her bases for her allegation that Tagistis had been placed under government custody (in and under custodial investigation?
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 A: Yes, maam.
allegedly mentioned that Tagitis was in good hands. Nothing came out of this claim, as both
the respondent herself and her witness, Mrs. Talbin, failed to establish that Col. Ancanan Q: And you mentioned that he showed you a report?
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 A: Yes, maam.
the disappearance.
Q: Were you able to read the contents of that report?
The more specific and productive source of information was Col. Kasim, whom
the respondent, together with her witness Mrs. Talbin, met in Camp Katitipan in Davao A: He did not furnish me a copy of those [sic] report because those [sic]
City. To quote the relevant portions of the respondents testimony: were highly confidential. That is a military report, maam.

Q: Were you able to speak to other military officials regarding the Q: But you were able to read the contents?
whereabouts of your husband particularly those in charge of any
records or investigation? A: No. But he read it in front of us, my friends, maam.

A: I went to Camp Katitipan in Davao City. Then one military officer, Col. Q: How many were you when you went to see Col. Kasim?
Casim, told me that my husband is being abducted
[sic] because he is under custodial investigation because he is A: There were three of us, maam.
allegedly parang liason ng J.I., sir.
Q: Who were your companions?
Q: What is J.I.?
A: Mrs. Talbin, tapos yung dalawang friends nya from Mati City, Davao
A: Jemaah Islamiah, sir. Oriental, maam.[162]
xxxx
Q: Was there any information that was read to you during one of those Q: When you were told that your husband is in good hands, what was
visits of yours in that Camp? your reaction and what did you do?

A: Col. Casim did not furnish me a copy of his report because he said A: May binasa kasi sya that my husband has a parang meeting with
those reports are highly confidential, sir. other people na parang mga terorista na mga tao. Tapos at
the end of the report is [sic] under custodial investigation.So I
Q: Was it read to you then even though you were not furnished a copy? told him Colonel, my husband is sick. He is diabetic at
nagmemaintain yun ng gamot. Pakisabi lang sa naghohold sa
A: Yes, sir. In front of us, my friends. asawa ko na bigyan siya ng gamot, maam.[163]
Q: And what was the content of that highly confidential report?
xxxx

26
Q: You mentioned that you received information that Engineer Tagitis is January 2007 up to the time that he was abducted. He told us
being held by the CIDG in Zamboanga, did you go to CIDG that he was under custodial investigation. As Ive said earlier,
Zamboanga to verify that information? he was seen under surveillance from January. He was seen
talking to Omar Patik, a certain Santos of Bulacan who is also a
A: I did not go to CIDG Zamboanga. I went to Camp Karingal Balik Islam and charged with terrorism. He was seen carrying
instead. Enough na yun na effort ko because I know that they boxes of medicines.Then we asked him how long will he be in
would deny it, maam.[164] 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.
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- Q: You said that he was reading a report, was that report in document
CIDG Zamboanga City, viz: form, in a piece of paper or was it in the computer or what?

Q: You said that you went to Camp Katitipan in Davao City sometime A: As far as I can see it, sir, it is written in white bond paper. I dont know
November 24, 2007, who was with you when you went there? if it was computerized but Im certain that it was typewritten. Im
not sure if it used computer, fax or what, sir.
A: Mary Jean Tagitis, sir.
Q: When he was reading it to you, was he reading it line by line or he was
Q: Only the two of you? reading in a summary form?

A: No. We have some other companions. We were four at that time, sir. A: Sometimes he was glancing to the report and talking to us, sir.[165]

Q: Who were they? xxxx


Q: Were you informed as to the place where he was being kept during
A: Salvacion Serrano, Mini Leong, Mrs. Tagitis and me, sir. that time?

Q: Were you able to talk, see some other officials at Camp Katitipan A: He did not tell us where he [Tagitis] was being kept. But he
during that time? mentioned this Talipapao, Sulu, sir.
A: Col. Kasim (PS Supt. Julasirim Ahadin Kasim) only, sir.
Q: After that incident, what did you do if any?
Q: Were you able to talk to him?
A: We just left and as Ive mentioned, we just waited because that raw
A: Yes, sir. information that he was reading to us [sic] after the custodial
investigation, Engineer Tagitis will be released. [Emphasis
Q: The four of you? supplied][166]

A: Yes, sir. 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
Q: What information did you get from Col. Kasim during that time? 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
A: The first time we met with [him] I asked him if he knew of the exact the respondent was merely a raw report from barangay intelligence that still needed
location, if he can furnish us the location of Engr. Tagitis. And he confirmation and follow up as to its veracity.[167]
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 To be sure, the respondents and Mrs. Talbins testimonies were far from perfect, as
is with the AFP or PNP. He has this serious case. He was the petitioners pointed out. The respondent mistakenly characterized Col. Kasim as a military
charged of terrorism because he was under surveillance from officer who told her that her husband is being abducted because he is under custodial

27
investigation because he is allegedly parang liason ng J.I. The petitioners also noted that Mrs. To say that this piece of evidence is incompetent and inadmissible evidence of what
Talbins testimony imputing certain statements to Sr. Supt. Kasim that Engr. Tagitis is with the it substantively states is to acknowledge as the petitioners effectively suggest that in the
military, but he is not certain whether it is the PNP or AFP is not worthy of belief, since Sr. absence of any direct evidence, we should simply dismiss the petition. To our mind, an
Supt. Kasim is a high ranking police officer who would certainly know that the PNP is not part immediate dismissal for this reason is no different from a statement that the Amparo Rule
of the military. 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
Upon deeper consideration of these inconsistencies, however, what appears clear enforced disappearances. The Amparo Rule was not promulgated with this intent or with the
to us is that the petitioners never really steadfastly disputed or presented evidence to refute intent to make it a token gesture of concern for constitutional rights. It was promulgated to
the credibility of the respondent and her witness, Mrs. Talbin. The inconsistencies the provide effective and timely remedies, using and profiting from local and international
petitioners point out relate, more than anything else, to details that should not affect the experiences in extrajudicial killings and enforced disappearances, as the situation may
credibility of the respondent and Mrs. Talbin; the inconsistencies are not on material require. Consequently, we have no choice but to meet the evidentiary difficulties inherent in
points.[168] We note, for example, that these witnesses are lay people in so far as military and enforced disappearances with the flexibility that these difficulties demand.
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 To give full meaning to our Constitution and the rights it protects, we hold that, as
prevarication[169]and only tend to strengthen their probative value, in contrast to testimonies in Velasquez, we should at least take a close look at the available evidence to determine the
from various witnesses dovetailing on every detail; the latter cannot but generate suspicion correct import of every piece of evidence even of those usually considered inadmissible
that the material circumstances they testified to were integral parts of a well thought of and under the general rules of evidence taking into account the surrounding circumstances and
prefabricated story.[170] 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
Based on these considerations and the unique evidentiary situation in enforced and meaningful to the disappearance of Tagistis and reasonably consistent with other
disappearance cases, we hold it duly established that Col. Kasim informed the respondent evidence in the case.
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 The evidence about Tagitis personal circumstances surrounded him with an air of
custodial investigation for complicity with the JI after he was seen talking to one Omar mystery. He was reputedly a consultant of the World Bank and a Senior Honorary Counselor
Patik and a certain Santos of Bulacan, a Balik Islam charged with terrorism. The for the IDB who attended a seminar in Zamboanga and thereafter proceded to Jolo for an
respondents and Mrs. Talbins testimonies cannot simply be defeated by Col. Kasims plain overnight stay, indicated by his request to Kunnong for the purchase of a return ticket to
denial and his claim that he had destroyed his informants letter, the critical piece of evidence Zamboanga the day after he arrived in Jolo. Nothing in the records indicates the purpose of
that supports or negates the parties conflicting claims. Col. Kasims admitted destruction of his overnight sojourn in Jolo. A colleague in the IDB, Prof. Matli, early on informed the Jolo
this letter effectively, a suppression of this evidence raises the presumption that the letter, if police that Tagitis may have taken funds given to him in trust for IDB scholars. Prof Matli later
produced, would be proof of what the respondent claimed. [171] For brevity, we shall call the on stated that he never accused Tagitis of taking away money held in trust, although he
evidence of what Col. Kasim reported to the respondent to be the Kasim evidence. 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
Given this evidence, our next step is to decide whether we can accept this the records relating to the personal circumstances of Tagitis.
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 The actual disappearance of Tagitis is as murky as his personal
custodial investigation. We note in this regard that Col. Kasim was never quoted to have said circumstances. While the Amparo petition recited that he was taken away by burly men
that the custodial investigation was by the CIDG Zamboanga. The Kasim evidence only believed to be police intelligence operatives, no evidence whatsoever was introduced to
implies government intervention through the use of the term custodial investigation, and support this allegation. Thus, the available direct evidence is that Tagitis was last seen at
does not at all point to CIDG Zamboanga as Tagitis custodian. 12.30 p.m. of October 30, 2007 the day he arrived in Jolo and was never seen again.

Strictly speaking, we are faced here with a classic case of hearsay evidence i.e., The Kasim evidence assumes critical materiality given the dearth of direct evidence
evidence whose probative value is not based on the personal knowledge of the witnesses on the above aspects of the case, as it supplies the gaps that were never looked into and
(the respondent, Mrs. Talbin and Col. Kasim himself) but on the knowledge of some other clarified by police investigation. It is the evidence, too, that colors a simple missing person
person not on the witness stand (the informant).[172] 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.

28
funds that Tagitis held in trust, or to tap any of the assets who are indispensable in
Denials on the part of the police authorities, and frustration on the part of the investigations of this nature. These omissions and negative results were aggravated by the
respondent, characterize the attempts to locate Tagitis. Initially in Jolo, the police informed CA findings that it was only as late as January 28, 2008 or three months after the
Kunnong that Tagitis could have been taken by the Abu Sayyaf or other groups fighting the disappearance that the police authorities requested for clear pictures of Tagitis. Col. Kasim
government. No evidence was ever offered on whether there was active Jolo police could not attend the trial because his subpoena was not served, despite the fact that he was
investigation and how and why the Jolo police arrived at this conclusion. The respondents designated as Ajirims replacement in the latters last post. Thus, Col. Kasim was not then
own inquiry in Jolo yielded the answer that he was not missing but was with another woman questioned. No investigation even an internal one appeared to have been made to inquire
somewhere. Again, no evidence exists that this explanation was arrived at based on an into the identity of Col. Kasims asset and what he indeed wrote.
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. We glean from all these pieces of evidence and developments a consistency in the
Kasim that yielded positive results. Col. Kasims story, however, confirmed only the fact of his governments denial of any complicity in the disappearance of Tagitis, disrupted only by the
custodial investigation (and, impliedly, his arrest or abduction), without identifying his report made by Col. Kasim to the respondent at Camp Katitipan. Even Col. Kasim, however,
abductor/s or the party holding him in custody. The more significant part of Col. Kasims story eventually denied that he ever made the disclosure that Tagitis was under custodial
is that the abduction came after Tagitis was seen talking with Omar Patik and a certain investigation for complicity in terrorism. Another distinctive trait that runs through these
Santos of Bulacan, a Balik Islam charged with terrorism. Mrs. Talbin mentioned, too, that developments is the governments dismissive approach to the disappearance, starting from
Tagitis was being held at Talipapao, Sulu. None of the police agencies participating in the the initial response by the Jolo police to Kunnongs initial reports of the disappearance, to the
investigation ever pursued these leads.Notably, TASK FORCE TAGITIS to which this responses made to the respondent when she herself reported and inquired about her
information was relayed did not appear to have lifted a finger to pursue these aspects of the husbands disappearance, and even at TASK FORCE TAGITIS itself.
case.
As the CA found through TASK FORCE TAGITIS, the investigation was at best
More denials were manifested in the Returns on the writ to the CA made by the haphazard since the authorities were looking for a man whose picture they initially did not
petitioners. Then PNP Chief Gen. Avelino I. Razon merely reported the directives he sent to even secure. The returns and reports made to the CA fared no better, as the CIDG efforts
the ARMM Regional Director and the Regional Chief of the CIDG on Tagitis, and these reports themselves were confined to searching for custodial records of Tagitis in their various
merely reiterated the open-ended initial report of the disappearance. The CIDG directed a departments and divisions. To point out the obvious, if the abduction of Tagitis was a black
search in all of its divisions with negative results. These, to the PNP Chief, constituted the operation because it was unrecorded or officially unauthorized, no record of custody would
exhaustion of all possible efforts. PNP-CIDG Chief General Edgardo M. Doromal, for his part, ever appear in the CIDG records; Tagitis, too, would not be detained in the usual police or
also reported negative results after searching all divisions and departments [of the CIDG] for CIDG detention places. In sum, none of the reports on record contains any meaningful
a person named Engr. Morced N. Tagitis . . . and after a diligent and thorough research, results or details on the depth and extent of the investigation made. To be sure, reports of
records show that no such person is being detained in the CIDG or any of its department or top police officials indicating the personnel and units they directed to investigate can never
divisions. PNP-PACER Chief PS Supt. Leonardo A. Espina and PNP PRO ARMM Regional constitute exhaustive and meaningful investigation, or equal detailed investigative reports of
Director PC Superintendent Joel R. Goltiao did no better in their affidavits-returns, as they the activities undertaken to search for Tagitis. Indisputably, the police authorities from the
essentially reported the results of their directives to their units to search for Tagitis. very beginning failed to come up to the extraordinary diligence that the Amparo Rule
requires.
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 CONCLUSIONS AND THE AMPARO REMEDY
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 Based on these considerations, we conclude that Col. Kasims disclosure, made in an
his testimony that the CIDG consistently denied any knowledge or complicity in any unguarded moment, unequivocally point to some government complicity in the
abduction and said that there was no basis to conclude that the CIDG or any police unit had disappearance. The consistent but unfounded denials and the haphazard investigations
anything to do with the disappearance of Tagitis; he likewise considered it premature to cannot but point to this conclusion. For why would the government and its officials engage in
conclude that Tagitis simply ran away with the money in his custody. As already noted above, their chorus of concealment if the intent had not been to deny what they already knew of
the TASK FORCE notably did not pursue any investigation about the personal circumstances the disappearance? Would not an in-depth and thorough investigation that at least credibly
of Tagitis, his background in relation to the IDB and the background and activities of this Bank determined the fate of Tagitis be a feather in the governments cap under the circumstances
itself, and the reported sighting of Tagistis with terrorists and his alleged custody in of the disappearance? From this perspective, the evidence and developments, particularly
Talipapao, Sulu. No attempt appears to have ever been made to look into the alleged IDB the Kasim evidence, already establish a concrete case of enforced disappearance that

29
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 Given their mandates, the PNP and PNP-CIDG officials and members were the ones
enforced disappearance and government complicity, under a background of consistent and who were remiss in their duties when the government completely failed to exercise the
unfounded government denials and haphazard handling. The disappearance as well extral'>To fully enforce the Amparo remedy, we refer this case back to the CA for appropriate
effectively placed Tagitis outside the protection of the law a situation that will subsist unless proceedings directed at the monitoring of the PNP and the PNP-CIDG investigations and
this Court acts. 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
This kind of fact situation and the conclusion reached are not without precedent in CA a plan of action for further investigation, periodically reporting the detailed results of its
international enforced disappearance rulings. While the facts are not exactly the same, the investigation to the CA for its consideration and action.On behalf of this Court, the CA shall
facts of this case run very close to those of Timurtas v. Turkey,[174] a case decided by pass upon: the need for the PNP and the PNP-CIDG to make disclosures of matters known to
ECHR. The European tribunal in that case acted on the basis of the photocopy of a post- them as indicated in this Decision and as further CA hearings may indicate; the petitioners
operation report in finding that Abdulvahap Timurtas (Abdulvahap) was abducted and later submissions; the sufficiency of their investigative efforts; and submit to this Court a quarterly
detained by agents (gendarmes) of the government of Turkey. The victim's father in this case report containing its actions and recommendations, copy furnished the petitioners and the
brought a claim against Turkey for numerous violations of the European Convention, respondent, with the first report due at the end of the first quarter counted from the finality
including the right to life (Article 2) and the rights to liberty and security of a person (Article of this Decision. The PNP and the PNP-CIDG shall have one (1) full year to undertake their
5). The applicant contended that on August 14, 1993, gendarmes apprehended his son, investigation. The CA shall submit its full report for the consideration of this Court at the end
Abdulvahap for being a leader of the Kurdish Workers Party (PKK) in the Silopi region. The of the 4th quarter counted from the finality of this Decision.
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 WHEREFORE, premises considered, we DENY the petitioners petition for review
another detainment facility. Although there was no eyewitness evidence of the on certiorari for lack of merit, and AFFIRM the decision of the Court of Appeals dated March
apprehension or subsequent detainment, the applicant presented evidence corroborating 7, 2008 under the following terms:
his version of events, including a photocopy of a post-operation report signed by the
commander of gendarme operations in Silopi, Turkey. The report included a description of a. Recognition that the disappearance of Engineer Morced N. Tagitis is an
Abdulvahap's arrest and the result of a subsequent interrogation during detention where he enforced disappearance covered by the Rule on the Writ of Amparo;
was accused of being a leader of the PKK in the Silopi region. On this basis, Turkey was held b. Without any specific pronouncement on exact authorship and
responsible for Abdulvahaps enforced disappearance. responsibility, declaring the government (through the PNP and the PNP-
CIDG) and Colonel Julasirim Ahadin Kasim accountable for the
Following the lead of this Turkish experience - adjusted to the Philippine legal enforced disappearance of Engineer Morced N. Tagitis;
setting and the Amparo remedy this Court has established, as applied to the unique facts c. Confirmation of the validity of the Writ of Amparo the Court of Appeals
and developments of this case we believe and so hold that the government in general, issued;
through the PNP and the PNP-CIDG, and in particular, the Chiefs of these organizations d. Holding the PNP, through the PNP Chief, and the PNP-CIDG, through its
together with Col. Kasim, should be held fully accountable for the enforced disappearance Chief, directly responsible for the disclosure of material facts known to
of Tagitis. the government and to their offices regarding the disappearance of
Engineer Morced N. Tagitis, and for the conduct of proper investigations
The PNP and CIDG are accountable because Section 24 of Republic Act No. 6975, using extraordinary diligence, with the obligation to show investigation
otherwise known as the PNP Law,[175] specifies the PNP as the governmental officewith the results acceptable to this Court;
mandate to investigate and prevent crimes, effect the arrest of criminal offenders, bring e. Ordering Colonel Julasirim Ahadin Kasim impleaded in this case and
offenders to justice and assist in their prosecution. The PNP-CIDG, as Col. Jose Volpane Pante holding him accountable with the obligation to disclose information
(then Chief of CIDG Region 9) testified, is the investigative arm of the PNP and is mandated to known to him and to his assets in relation with the enforced
investigate and prosecute all cases involving violations of the Revised Penal Code, particularly disappearance of Engineer Morced N. Tagitis;
those considered as heinous crimes.[176] Under the PNP organizational structure, the PNP- f. Referring this case back to the Court of Appeals for appropriate
CIDG is tasked to investigate all major crimes involving violations of the Revised Penal Code proceedings directed at the monitoring of the PNP and PNP-CIDG
and operates against organized crime groups, unless the President assigns the case investigations, actions and the validation of their results; the PNP and the
exclusively to the National Bureau of Investigation (NBI).[177] No indication exists in this case PNP-CIDG shall initially present to the Court of Appeals a plan of action
showing that the President ever directly intervened by assigning the investigation of Tagitis for further investigation, periodically reporting their results to the Court
disappearance exclusively to the NBI. of Appeals for consideration and action;

30
g. Requiring the Court of Appeals to submit to this Court a quarterly report WARMIKHAN HAPA, GABRAL JIKIRI, ALLAN TAN, MUJAHIRIN MARAJUKI, KENNEDY
with its recommendations, copy furnished the incumbent PNP and PNP- GONZALES, URDUJA ALIH, MERLA ALIH, and NURAISA ALIH VDA DE FEROLINO, petitioners,
CIDG Chiefs as petitioners and the respondent, with the first report due vs.
at the end of the first quarter counted from the finality of this Decision; MAJOR GENERAL DELFIN C. CASTRO, IN HIS CAPACITY AS COMMANDER SOUTHCOM AND
h. The PNP and the PNP-CIDG shall have one (1) full year to undertake REGIONAL UNIFIED COMMAND, REGION IX, ZAMBOANGA CITY, COLONEL ERNESTO
their investigations; the Court of Appeals shall submit its full report for CALUPIG, IN HIS CAPACITY AS COMMANDING OFFICER OF THE SPECIAL FORCES GROUP
the consideration of this Court at the end of the 4th quarter counted from (AIRBORNE) AND INTERNAL DEFENSE COMMAND, OTHERWISE KNOWN AS IdC MAJOR
the finality of this Decision; ARNOLD BLANCO IN HIS CAPACITY AS COMMANDING OFFICER OF THE PHILIPPINE
MARINES AND 1ST LIEUTENANT DARWIN GUERRA IN HIS CAPACITY AS ACTS SUPERVISOR,
These directives and those of the Court of Appeals made pursuant to this Decision INTERNAL DEFENSE COMMAND, ARMED FORCES OF THE PHILIPPINES, respondents.
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 CRUZ, J.:
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 On November 25, 1984, a contingent of more than two hundred Philippine marines and
of Amparo cases and their varying attendant circumstances, these directives particularly, the elements of the home defense forces raided the compound occupied by the petitioners at
referral back to and monitoring by the CA are specific to this case and are not standard Gov. Alvarez street, Zamboanga City, in search of loose firearms, ammunition and other
remedies that can be applied to every Amparo situation. explosives. 1

The dismissal of the Amparo petition with respect to General Alexander Yano, The military operation was commonly known and dreaded as a "zona," which was not unlike
Commanding General, Philippine Army, and General Ruben Rafael, Chief, Anti-Terrorism Task the feared practice of the kempeitai during the Japanese Occupation of rounding up the
Force Comet, Zamboanga City, is hereby AFFIRMED. people in a locality, arresting the persons fingered by a hooded informer, and executing them
outright (although the last part is not included in the modern refinement).
SO ORDERED.
The initial reaction of the people inside the compound was to resist the invasion with a burst
of gunfire. No one was hurt as presumably the purpose was merely to warn the intruders and
deter them from entering. Unfortunately, as might be expected in incidents like this, the
situation aggravated soon enough. The soldiers returned fire and a bloody shoot-out ensued,
resulting in a number of casualties. 2

The besieged compound surrendered the following morning, and sixteen male occupants
were arrested, later to be finger-printed, paraffin-tested and photographed over their
objection. The military also inventoried and confiscated nine M16 rifles, one M14 rifle, nine
rifle grenades, and several rounds of ammunition found in the premises. 3

On December 21, 1984, the petitioners came to this Court in a petition for prohibition
and mandamus with preliminary injunction and restraining order. Their purpose was to
EN BANC recover the articles seized from them, to prevent these from being used as evidence against
them, and to challenge their finger-printing, photographing and paraffin-testing as violative
June 23, 1987 of their right against self-incrimination.4

G.R. No. L-69401 The Court, treating the petition as an injunction suit with a prayer for the return of the
articles alleged to have been illegally seized, referred it for hearing to Judge Omar U. Amin of
RIZAL ALIH, NASIM ALIH, AISAN ALIH, MIJAL ALIH, OMAR ALIH, EDRIS MUKSAN, MULSIDI the regional trial court, Zamboanga City. 5 After receiving the testimonial and documentary
WARADIL, BILLY ASMAD RAMSID ASALI, BANDING USMAN, ANGGANG HADANI, evidence of the parties, he submitted the report and recommendations on which this opinion
is based. 6
31
The petitioners demand the return of the arms and ammunition on the ground that they The record does not disclose that the petitioners were wanted criminals or fugitives from
were taken without a search warrant as required by the Bill of Rights. This is confirmed by justice. At the time of the "zona," they were merely suspected of the mayor's slaying and had
the said report and in fact admitted by the respondents, "but with avoidance. 7 not in fact even been investigated for it. As mere suspects, they were presumed innocent and
not guilty as summarily pronounced by the military.
Article IV, Section 3, of the 1973 Constitution, which was in force at the time of the incident
in question, provided as follows: Indeed, even if were assumed for the sake of argument that they were guilty, they would not
have been any less entitled to the protection of the Constitution, which covers both the
Sec. 3. The right of the people to be secure in their persons, houses, papers, and innocent and the guilty. This is not to say, of course, that the Constitution coddles criminals.
effects against unreasonable searches and seizures of whatever nature and for any What it does simply signify is that, lacking the shield of innocence, the guilty need the armor
purpose shall not be violated, and no search warrant or warrant of arrest shall of the Constitution, to protect them, not from a deserved sentence, but from arbitrary
issue except upon probable cause to be determined by the judge, or such other punishment. Every person is entitled to due process. It is no exaggeration that the basest
responsible officer as may be authorized by law, after examination under oath or criminal, ranged against the rest of the people who would condemn him outright, is still,
affirmation of the complainant and the witnesses he may produce, and particularly under the Bill of Rights, a majority of one.
describing the place to be searched, and the persons or things to be seized.
If the respondents did not actually disdain the Constitution when they made their illegal raid,
It was also declared in Article IV, Section 4(2) that- they certainly gave every appearance of doing so. This is truly regrettable for it was
incumbent on them, especially during those tense and tindery times, to encourage rather
Sec. 4(2) Any evidence obtained in violation of this or the preceding section shall be than undermine respect for the law, which it was their duty to uphold.
inadmissible for any purpose in any proceeding.
In acting as they did, they also defied the precept that "civilian authority is at all times
The respondents, while admitting the absence of the required such warrant, sought to justify supreme over the military" so clearly proclaimed in the 1973 Constitution. 11 In the instant
their act on the ground that they were acting under superior orders. 8 There was also the case, the respondents simply by-passed the civil courts, which had the authority to
suggestion that the measure was necessary because of the aggravation of the peace and determine whether or not there was probable cause to search the petitioner's premises.
order problem generated by the assassination of Mayor Cesar Climaco. 9 Instead, they proceeded to make the raid without a search warrant on their own
unauthorized determination of the petitioner's guilt.
Superior orders" cannot, of course, countermand the Constitution. The fact that
the petitioners were suspected of the Climaco killing did not excuse the The respondents cannot even plead the urgency of the raid because it was in fact not urgent.
constitutional short-cuts the respondents took. As eloquently affirmed by the U.S. They knew where the petitioners were. They had every opportunity to get a search warrant
Supreme Court in Ex parte Milligan: 10 before making the raid. If they were worried that the weapons inside the compound would
be spirited away, they could have surrounded the premises in the meantime, as a preventive
The Constitution is a law for rulers and people, equally in war and in peace, and measure. There was absolutely no reason at all why they should disregard the orderly
covers with the shield of its protection all classes of men, at all times and under all processes required by the Constitution and instead insist on arbitrarily forcing their way into
circumstances. No doctrine, involving more pernicious consequences, was ever the petitioner's premises with all the menace of a military invasion.
invented by the wit of man than that any of its provisions can be suspended during
any of the great exigencies of government. Conceding that the search was truly warrantless, might not the search and seizure be
nonetheless considered valid because it was incidental to a legal arrest? Surely not. If all the
The precarious state of lawlessness in Zamboanga City at the time in question certainly did law enforcement authorities have to do is force their way into any house and then pick up
not excuse the non-observance of the constitutional guaranty against unreasonable searches anything they see there on the ground that the occupants are resisting arrest, then we might
and seizures. There was no state of hostilities in the area to justify, assuming it could, the as well delete the Bill of Rights as a fussy redundancy.
repressions committed therein against the petitioners.
When the respondents could have easily obtained a search warrant from any of the TEN civil
It is so easy to say that the petitioners were outlaws and deserved the arbitrary treatment courts then open and functioning in Zamboanga City, 12 they instead simply barged into the
they received to take them into custody; but that is a criminal argument. It is also fallacious. beleaguered premises on the verbal order of their superior officers. One cannot just force his
Its obvious flaw lies in the conclusion that the petitioners were unquestionably guilty on the way into any man's house on the illegal orders of a superior, however lofty his rank. Indeed,
strength alone of unsubstantiated reports that they were stockpiling weapons. even the humblest hovel is protected from official intrusion because of the ancient rule,
revered in all free regimes, that a man's house is his castle.
32
It may be frail; its roof may shake; the wind may enter; the rain may enter. But the
King of England may not enter. All the forces of the Crown dare not cross the
threshold of the ruined tenement. 13 SECOND DIVISION

[G.R. No. 135382. September 29, 2000]


If the arrest was made under Rule 113, Section 5, of the Rules of Court in connection with a
crime about to be committed, being committed, or just committed, what was that crime? PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. LOURDES GAMBOA alias Des or Lourdes
There is no allegation in the record of such a justification. Parenthetically, it may be observed Gamboa y Golfe, BONIFACIO MIOZA (at large), MELBA MIOZA alias Melba, Eva
that under the Revised Rule 113, Section 5(b), the officer making the arrest must Mioza (at large) and GLORIA SARMIENTO (at large), accused.
have personal knowledge of the ground therefor as stressed in the recent case of People v. LOURDES GAMBOA alias Des or Lourdes Gamboa y Golfe, accused-appellant.
Burgos.14
DECISION
If follows that as the search of the petitioners' premises was violative of the Constitution, all
the firearms and ammunition taken from the raided compound are inadmissible in evidence BELLOSILLO, J.:
in any of the proceedings against the petitioners. These articles are "fruits of the poisonous This is an appeal from the Partial Decision of the Regional Trial Court finding accused
tree. 15 As Judge Learned Hand observed, "Only in case the prosecution which itself controls LOURDES GAMBOA alias Des or Lourdes Gamboa y Golfe guilty of Illegal Recruitment in Large
the seizing officials, knows that it cannot profit by their wrong, will the wrong be Scale under RA 8042, otherwise known as The Migrant Workers and Overseas Filipinos Act of
repressed. 16 Pending determination of the legality of such articles, however, they shall 1995, and imposing upon her life imprisonment and a fine of P500,000.00.[1]
remain in custodia legis, subject to such appropriate disposition as the corresponding courts
may decide. 17 From March 1996 to August 1997 the four (4) accused led by Bonifacio Mioza and
Melba Mioza promised overseas employment for a fee to complaining witnesses Marissa
The objection to the photographing, fingerprinting and paraffin-testing of the petitioners Balina, Anna Marie Pili, Romulo Macaraeg, Ernesto Magadan, Domingo Magadan, Jr., Roger
deserves slight comment. The prohibition against self-incrimination applies to testimonial Castro and Nemia Beri. The accused were then holding office at Room 302, Ermita Building,
compulsion only. As Justice Holmes put it in Holt v. United States, 18 "The prohibition of Arquiza St., Ermita, Manila, where they conducted most of their recruitment activities. To
compelling a man in a criminal court to be a witness against himself is a prohibition of the entice complainants the accused represented to them that they were affiliated with Bemil
use of physical or moral compulsion to extort communications from him, not an exclusion of Management Trading and Manpower Services, a duly licensed recruitment agency, and that
his body as evidence when it may be material." they had the capacity to send workers to Taiwan, Brunei and Japan. Thus, on different dates,
complainants went to the office of the accused and filed their applications together with
The fearful days of hamleting salvaging, "zona" and other dreaded operations should remain their NBI Clearances, pictures and other supporting documents. The accused then collected
in the past, banished with the secret marshals and their covert license to kill without trial. from them placement fees: (a) Marissa Balina, P40,000.00, (b) Anna Marie Pili, P40,000.00,
We must be done with lawlessness in the name of law enforcement. Those who are (c) Romulo Macaraeg, P25,000.00, (d) Ernesto Magadan, P20,000.00, (e) Domingo Magadan,
supposed to uphold the law must not be the first to violate it. As Chief Justice Claudio Jr., P20,000.00, (f) Roger Castro, P24,000.00, and (g) Nemia Beri, P10,000.00, in addition
Teehankee stressed in his concurring opinion in Lacanilao v. De Leon, 19 "It is time that the to P900.00 for medicare and P70.00 for Pre-Departure Orientation Seminar (PREDOS).
martial law regime's legacy of the law of force be discarded and that there be a return to the
However, despite the promises and assurances made by the accused, not one of the
force and rule of law."
complainants was deployed for employment abroad, nor were they able to recover the
money they paid to the accused. Hence, complainants lodged separate complaints against
All of us must exert efforts to make our country truly free and democratic, where every
the accused before the Philippine Overseas Employment Administration (POEA).[2]
individual is entitled to the full protection of the Constitution and the Bill of Rights can stand
as a stolid sentinel for all, the innocent as well as the guilty, including the basest of criminals. On 15 August 1997 PNP Senior Inspector Ligaya Cabal of the POEA-CIG Task Force Anti-
Illegal Recruitment spearheaded a police operation to entrap the accused. Elements of the
WHEREFORE, the search of the petitioners' premises on November 25, 1984, is hereby PNP together with some members of the media proceeded to Ermita Building and placed it
declared ILLEGAL and all the articles seized as a result thereof are inadmissible in evidence under surveillance. Police Officer Cabal, who was in civilian clothes, went alone to the office
against the petitioners in any proceedings. However, the said articles shall remain in custodia of the accused in the third floor and posed as a job applicant. The accused inquired if she was
legis pending the outcome of the criminal cases that have been or may later be filed against applying as there was a vacancy for chambermaid in Brunei. When Officer Cabal answered
the petitioners. yes, the accused forthwith furnished her bio-data and visa application forms and instructed
her to fill them up.[3]
SO ORDERED.
33
Officer Cabal promptly accomplished the bio-data and application forms. To obviate abroad, just like Teresita Reyoberos; and third, she cannot be held liable for illegal
any suspicion on the part of the accused as to her true identity, she used the assumed recruitment since she never represented to the complainants that she had the capacity to
name "Joy S. Garcia."[4] The accused then required Officer Cabal to pay the initial amount send them abroad for employment.
of P1,500.00 for medical and processing fees. At the instruction of the accused, a certain
Teresita Reyoberos received the marked money from Officer Cabal and issued the We find no reason to reverse accused-appellants conviction, hence, we affirm.
corresponding receipt therefor.[5] The police dragnet having been laid, Officer Cabal with the Preliminarily, the proliferation of illegal job recruiters and syndicates preying on
use of her cellular phone made the pre-arranged signal to the police operatives waiting innocent people anxious to obtain employment abroad is one of the primary considerations
outside the building that the marked money had been delivered.[6] Accused Lourdes Gamboa that led to the enactment of The Migrant Workers and Overseas Filipinos Act of
and Teresita Reyoberos were thus apprehended, but the rest of their cohorts eluded arrest 1995.[8] Aimed at affording greater protection to overseas Filipino workers, it is a significant
and remained at large. improvement on existing laws in the recruitment and placement of workers for overseas
Later, however, Teresita Reyoberos was not included in the criminal information after employment. Otherwise known as the Magna Carta of OFWs, it broadened the concept of
State Prosecutor Zenaida M. Lim found that she was also a job applicant at the office of the illegal recruitment under the Labor Code[9] and provided stiffer penalties thereto, especially
accused who merely acceded to the request of accused Melba Mioza to temporarily man the those that constitute economic sabotage, i.e., Illegal Recruitment in Large Scale and Illegal
office in her absence.[7] Consequently, only Lourdes Gamboa was hailed to court and indicted Recruitment Committed by a Syndicate.[10]
for Illegal Recruitment in Large Scale. In a litany of cases we held that to constitute Illegal Recruitment in Large Scale three
In convicting accused-appellant Lourdes Gamboa of the crime charged, the trial court (3) elements must concur: (a) the offender has no valid license or authority required by law
held - to enable him to lawfully engage in recruitment and placement of workers; (b) the offender
undertakes any of the activities within the meaning of "recruitment and placement" under
Art. 13, par. (b), of the Labor Code, or any of the prohibited practices enumerated under Art.
x x x x the proofs adduced by the prosecution have clearly and conclusively demonstrated 34 of the same Code (now Sec. 6 of RA 8042); and, (c) the offender committed the same
that the accused, conspiring and confederating with three others, has offered, enlisted and against three (3) or more persons, individually or as a group.[11]
promised overseas employment to [complainants]. Against the mass of evidence arrayed by
the prosecution, all that the accused could offer was her bare and unconfirmed denials and In the case at bar, there can be no question that the foregoing elements were
explanation x x x x The court, however, is not inclined to uphold and sustain the denials and sufficiently proved by the prosecution. The POEA certified that accused Melba Mioza and her
explanations of the accused, which are negative in character and self-serving in nature. Her group, which included accused-appellant Lourdes Gamboa, were neither licensed nor
unconfirmed version cannot, certainly, outweigh and command greater evidentiary measure authorized to recruit workers for overseas employment.[12] That they recruited seven (7)
than the overwhelming testimonies of the Peoples principal witnesses, who narrated in vivid persons - herein complaining witnesses Marissa Balina, Anna Marie Pili, Romulo Macaraeg,
and clear-cut details the various aspects of her recruitment and placement activities. Ernesto Magadan, Domingo Magadan, Jr., Roger Castro and Nemia Beri - not to mention
Police Officer Ligaya Cabal, who disguised herself as a job applicant, whom accused-appellant
x x x x the evidence for the People has likewise conclusively established that the accused is likewise attempted to recruit. Evidently, the illegal recruiters gave complainants the
neither personally licensed nor authorized by the POEA to recruit workers for overseas impression that they had the power and ability to send the latter to work in various foreign
employment (Exhibit B).Although the defense has shown that the license and authority of the destinations, when in fact they had none. Relying on their assurances and promises of
Bemil Management Trading and Manpower Services to recruit, process and deploy land- employment abroad, complainants, with much hope and expectation for immediate
based workers had been renewed and validated for the period from October 26, 1995 to deployment, agreed to part with their hard-earned money to expedite the processing and
October 25, 1997 (Exhibit 11), the evidence clearly indicates that the accused was neither an approval of their applications.
employee of, nor was she connected with, the said management and manpower services. It
We find no cogent reason likewise to disturb the lower courts findings on the existence
was not also proved that any of her cohorts from whom the accused derived her authority to
of a conspiracy since each accused played a part in the recruitment of
recruit workers were authorized personnel of Bemil, notwithstanding the fact that the POEA
complainants.[13] Indeed, the testimonies of the complaining witnesses indubitably show a
has records of the officers and employees of Bemil from the highest to the lowest.
delineation of roles among the accused. Bonifacio Mioza and Melva Mioza were the
In this appeal, accused-appellant faults the court a quo in finding her guilty of Illegal managers/heads of the illegal recruitment office. Gloria Sarmiento was the field recruiter
Recruitment in Large Scale. The centerpiece of her defense is three-fold: first, the actively enlisting prospective job applicants together with Bonifacio and Melba
prosecution failed to prove conspiracy between her and the other accused; second, she was Mioza. Accused-appellant Lourdes Gamboa was the office assistant who answered the
not responsible for the recruitment of the complaining witnesses nor for their non- queries of applicants and performed clerical work. Conspiracy to defraud aspiring overseas
deployment abroad since she was also a job applicant herself at the office of the other contract workers was evident from the acts of the malefactors whose conduct before, during
accused and was merely utilized as a worker thereat while waiting for her deployment and after the commission of the crime clearly indicated that they were one in purpose and

34
united in its execution. Direct proof of previous agreement to commit a crime is not Q: Why, was she in what country?
necessary as it may be deduced from the mode and manner in which the offense was
perpetrated or inferred from the acts of the accused pointing to a joint purpose and design, A: In Brunei.
concerted action and community of interest.[14] As such, all the accused, including accused- Q: As what?
appellant, are equally guilty of the crime of illegal recruitment since in a conspiracy the act of
one is the act of all. A: Chambermaid.

Accused-appellant assails the factual basis of the trial court in ruling that she engaged Q: What else did she tell you as to your employment as chambermaid?
in illegal recruitment, arguing that she was just an applicant herself whom accused Melba
Mioza utilized to help in the office work while waiting for deployment abroad. Her active A: What I have to do is to submit all the necessary requirements to her and pay the
participation however in the illegal recruitment process belies her profession of amount x x x x
innocence. Complainant Roger Castro testified - Q: So you submitted those documents, to whom did you say?
Q: What else happened? A: To Lourdes Gamboa.
A: x x x Melba Mioza told Lourdes to prepare the application form, madam. Q: Who required you to undergo training?
Q: And what happened next? A: Lourdes Gamboa, everytime I called her up when I am in Bicol, she always told me to
A: I was taught by Lourdes how to fill up, madam? come over in order to train.

Q: What? Q: Apart from the documents and training, were you required to pay additional fees?

A: The application form, madam. A: There is a need for me to pay P900.00 for medicare and P70.00 for PREDOS?

Q: After filling up the application form, what did you do? PROSECUTOR LIM: Where did you undergo training of PREDOS?

A: x x x Lourdes asked me if I have the money to pay, madam. A: The PREDOS did not push through, I just paid the amount.

Q: And what did you tell her? x x x x Q: To whom did you pay the amount?

A: I was told that on the 29th after I have paid in a months time I will be able to leave, A: To Lourdes Gamboa.
madam. Q: How much did you pay to Lourdes Gamboa?
Q: And who was telling you these things? A: I paid her P70.00 x x x x
A: It was Lourdes Gamboa who told me that, madam x x x x Q: How much did you pay for the medicare?
Q: x x x but what were those documents being required of you to submit? A: I paid P900.00.
A: NBI Clearance, my passport and we have (sic) to undergo training as a bell boy, Q: To whom did you pay P900.00?
madam.
A: I gave it to Lourdes Gamboa and in turn she gave it to Melba Mioza.[16]
Q: Who told you to submit these documents?
Furthermore, during the police entrapment operation it was accused-
A: Lourdes Gamboa, madam.[15] appellant who actually recruited the poseur applicant, Officer Cabal -
Complaining witness Nemia Beri testified - Q: Now, you said you were met by Lourdes Gamboa at the office, what did she tell you, if
Q: What did Lourdes Gamboa tell you? any?

A: She told me just to apply with them because if I will apply for Taiwan, it will take a long A: She told me if Im applying in that agency, the vacancy is as chambermaid in Brunei,
time, while in their office just 2 to 3 weeks, [after] I submit the papers. madam.

35
Q: What else did she tell you? recruitment. It must be emphasized that Illegal Recruitment in Large Scale penalized
under The Migrant Workers and Overseas Filipinos Act of 1995, a special law, is malum
A: So, she [asked] me if Im interested and I said yes, madam x x x x prohibitum and not malum in se. The criminal intent of the accused is not necessary and the
Q: What else did she tell you? fact alone that the accused violated the law warrants her conviction.[18]

A: She told me to fill up the bio-data form and visa application, madam x x x x Accused-appellant next insists that she did not represent to complainants or to Officer
Cabal that she has the capacity to send them for overseas employment. That when she asked
Q: Apart from these documents, these visa application form and bio-data, were you Officer Cabal, then disguised as a job applicant, if she was applying, the vacancy is for
asked to fill up any document? chambermaid in Brunei, she was merely echoing some facts known to her but was not in any
way giving Officer Cabal any false representation. We are not persuaded. Suffice it to say that
A: Upon payment, madam. an illegal recruiter need not expressly represent to the victim that she has the ability to send
Q: Which payment? workers abroad. It is enough that she gives the impression of her ability to enlist workers for
job placement abroad in order to induce them to tender payment of fees, as what accused-
A: The P 1,500.00 marked money, madam. appellant had done to the complainants in this case.[19]
Q: Who told you to pay? Finally, it is doctrinal that the trial courts evaluation of the testimony of witnesses is
accorded the highest respect, for the trial court has an untrammeled opportunity to observe
A: Lourdes Gamboa, madam x x x x directly the demeanor of a witness on the stand and, thus, to determine whether he or she is
Q: Now, did you actually pay the P1,500? telling the truth. Such assessment is generally binding on this Court, except when the same
has been reached arbitrarily; or when the trial court has overlooked, misunderstood or
A: Yes, madam. misapplied some facts or circumstances of weight and substance which could have affected
the result of the case.
Q: To whom did you pay?
Considering therefore the evidence extant on record, we fully agree with the trial court
A: I paid to Ms. Lourdes Gamboa, madam.
that accused-appellant, in conspiracy with the other accused in this case, engaged in a
Q: Who received the amount? recruitment business which, as herein discussed, was illegal and in large scale. Section 7 of
RA 8042 prescribes the penalty of life imprisonment and a fine of not less than P500,000.00
A: It was Teresita Reyoberos, madam. nor more than P1,000,000.00 in cases where the illegal recruitment constitutes an offense
involving economic sabotage.[20] Indeed, the alarming incidents of such nefarious crime
Q: Upon whose instruction?
rationalizes the imposition of severe penalties under the axiom that extreme situations
A: Lourdes Gamboa, madam.[17] require extreme remedies.

The precise degree of participation of accused-appellant Lourdes Gamboa in the illegal WHEREFORE, the assailed Partial Decision of the trial court dated 18 August 1998
recruitment scheme is very clear from the foregoing testimonies. She was present when the convicting accused-appellant Lourdes Gamboa alias Des or Lourdes Gamboa y Golfe of Illegal
complainants were being recruited and in fact personally recruited some of them, providing Recruitment in Large Scale, sentencing her to life imprisonment and to pay a fine
and assisting them in filling up the application forms, answering their queries, receiving of P500,000.00, and ordering her to restitute the sums of money collected from the
documents and payments, and repeatedly assuring them that they would be able to leave for complainants in this case in the total amount of P179,970.00, is AFFIRMED. As for accused
their respective jobs abroad. These acts demonstrated beyond any cavil of doubt that she Bonifacio Mioza, Melba Mioza and Gloria Sarmiento, who until now have remained at large,
was a knowing and willing participant in the recruitment activities of Melba Mioza and her let this case be ARCHIVED without prejudice to its reinstatement as soon as the accused shall
group. have been apprehended and brought to the jurisdiction of the court.

Moreover, accused-appellants bare denials and self-serving assertion that she was a SO ORDERED.
mere job applicant herself certainly cannot prevail over the positive assertions of Officer
Cabal and the complainants who had no ill motive to testify falsely against her.

At any rate, the lack of criminal intent on the part of an accused - assuming ex-gratia
argumenti that accused-appellant was indeed unaware of the illegal nature of the
recruitment business of her co-accused - is hardly a defense in the prosecution for illegal

36
this case and reached the inevitable conclusion that the appellant’s guilt has been proven
beyond reasonable doubt. The findings of fact of the trial court are supported by convincing
and credible evidence upon which Our minds can rest unburdened by any doubt. The said
court has not overlooked any fact of substance and value which, if considered, might affect
the result of this case. We find then no reason to disturb such findings. This is a settled rule in
this jurisdiction.

4. OFFENDED PARTY POSSIBILITY IDENTIFIED APPELLANT. — In the instant case, the offended
party positively recognized the appellant from the time he and his companions barged into
THIRD DIVISION
the kitchen which was then well lit. His face was exposed from the time he dragged her out
of the house to the time he raped her by the bushes and brought her back to the house.
[G.R. No. 97441. September 11, 1992.]
Hence, the appellant was not only clearly and unmistakably seen in the vicinity of the crime,
he was also positively identified by the offended party as her assailant and ravager. Aside
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. DOMINGO CASINILLO, Accused-
from the fact that her testimony is full of sincerity and candor, there is absolutely no proof
Appellant.
that she was improperly motivated to testify against the Appellant.
The Solicitor General for Plaintiff-Appellee.
5. POLICE BLOTTER; NOT NECESSARILY ENTITLED TO FULL CREDIT; REASONS. — Appellant’s
reliance on the police blotter deserves nothing more than the scantest consideration. In the
Arturo B. Ladera for Accused-Appellant.
first place," [t]he entry in the police blotter is not necessarily entitled to full credit for it could
be incomplete and inaccurate, sometimes from either partial suggestions or for want of
suggestion or inquiries, without the aid of which the witness may be unable to recall the
SYLLABUS connected collateral circumstances necessary for the correction of the first suggestion of his
memory and for his accurate recollection of all that pertain to the subject." In the second
place, the entries relied upon by the appellant are sadly wanting in material particulars; this
1. CRIMINAL LAW; RAPE; BASIC PRINCIPLES IN REVIEWING RAPE CASES. — Thus, this Court clearly shows that no effort at all was exerted by the policeman on duty to accurately obtain
has set three (3) basic guiding principles in reviewing rape cases: (1) an accusation for rape the facts of the reported crime. Thirdly, as indicated therein, it is not the offended party, but
can be made with facility; it is difficult to prove, but more difficult for the person accused, rather her mother Consolacion, who is alleged to have personally made the report. Fourthly,
though innocent, to disprove; (2) in view of the intrinsic nature of the crime of rape where there is no evidence that the entries were read to the offended party or that they were
only two (2) persons are usually involved, the testimony of the complainant must be presented to her. Not having been entered by her and there being no sufficient showing that
scrutinized with extreme caution; and (3) the evidence for the prosecution must stand or fall she actively participated in their preparation, these entries cannot fairly or logically bind her.
on its own merits, and cannot be allowed to draw strength from the weakness of the
evidence for the defense. 6. POLICE LINEUPS; NOT ENCOMPASSED IN THE CONSTITUTIONAL RIGHT AGAINST
TESTIMONIAL COMPULSION AND THE RIGHT TO COUNSEL. — The grievance concerning the
2. CONVICTION; ABSOLUTE CERTAINTY OF GUILT NOT DEMANDED BY LAW; ONLY MORAL police lineups is misplaced. The trial court’s finding as to the identification of the accused did
CERTAINTY IS REQUIRED. — Absolute certainty of guilt is not, however, demanded by law for not even consider the said lineups. Moreover, in People v. Olvis, this Court ruled, in effect,
a conviction. The sphere of criminal law does not call for such degree of proof as would that a police lineup is not encompassed in the Constitutional right against testimonial
exclude the possibility of error. Only moral certainty as to the presence of the elements, compulsion and the right to counsel. Thus: ". . . an act, whether testimonial or passive, that
constituting the offense, as well as to the identity of the offender, is required; in short, what would amount to disclosure of incriminatory facts is covered by the inhibition of the
is needed is that degree of proof which produces conviction in an unprejudiced mind. The Constitution. This should be distinguished, parenthetically, from mechanical acts the accused
conscience must be satisfied that on the accused could be laid the responsibility for the is made to execute not meant to unearth undisclosed facts but to ascertain physical
offense charged: that not only did he perpetrate the act, but that it amounted to a crime. attributes determinable by simple observation. This includes requiring the accused to submit
The strongest suspicion must not be permitted to sway judgment; if a reasonable doubt to a test to extract virus from body, or compelling him to expectorate morphine from his
exists, that doubt must be resolved in favor of the accused and he must be acquitted. mouth, or making her submit to a pregnancy test, or a footprinting test, or requiring him to
take part in a police lineup in certain cases. In each case, the accused does not speak his guilt.
3. APPELLANT’S GUILT PROVEN BEYOND REASONABLE DOUBT; FINDINGS OF FACT OF THE It is not a prerequisite therefore that he be provided with the guiding hand of
TRIAL COURT ARE CONVINCING AND CREDIBLE. — Guided by the foregoing principles, this counsel."cralaw virtua1aw library
Court undertook a careful and meticulous review, analysis and evaluation of the evidence in
37
"The undersigned, at the instance of the offended party, accuses DOMINGO CASINILLO, of
7. ALIBI; MUST BE PRESENTED WITH STRONG CORROBORATION; CANNOT PREVAIL OVER THE the crime of RAPE, defined and penalized under Article 335 of the Revised Penal Code,
POSITIVE IDENTIFICATION OF AN ACCUSED. — As to appellant’s defense of alibi, We have committed as follows:chanrob1es virtual 1aw library
time and again ruled that the same remains to be a patently weak defense when
corroborated only by the testimony of the accused’s spouse or parents who would naturally That on or about May 13, 1989, in the Municipality of Mati, Province of Davao Oriental,
be expected to give statements that would free their spouse or son from criminal liability. For Philippines and within the jurisdiction of this Honorable Court, the above-named accused,
alibi to be acceptable, it must be presented with strong corroboration for it is inherently armed with .38 (sic) revolver hand gun and with lewd designs, by means of force, violence
weak and easily fabricated. It cannot prevail over the positive identification of an accused. and intimidation, did then and there wilfully, unlawfully and feloniously have carnal
knowledge of one LETECIA (sic) V. SORIA, a woman, against her will." 4
8. DELIBERATELY SUPPRESSED EVIDENCE; SECTION 3 (e), RULE 131 DOES NOT APPLY IF THE
EVIDENCE CLAIMED TO BE SUPPRESSED IS MERELY CORROBORATIVE OR IS EQUALLY He also filed two (2) separate Informations — one for robbery with rape (Criminal Case No.
AVAILABLE TO THE ACCUSED. — Equally without merit is appellant’s contention that the 1844) and another for robbery in band (Criminal Case No. 1845) — against the appellant and
prosecution deliberately suppressed evidence by not presenting P/Sgt. Arnold Malintad and his co-accused Danilo Casinillo, Rolando Valles and Danilo Valles. The accusatory portions of
Barangay Captain Patricio Cabingatan. The suggested reason, of course, is obvious - their said informations respectively read as follows:jgc:chanrobles.com.ph
testimonies would have been adverse to the prosecution if produced. This rule, embodied in
Section 3 (e), Rule 131 of the Rules of Court, does not apply if the evidence claimed to be "That on or about May 13, 1989, in the Municipality of Mati, Province of Davao Oriental,
suppressed is merely corroborative, or is equally available to the accused because in the Philippines and within the jurisdiction of this Honorable Court, the above-named accused
latter case, the evidence would have the same weight against one party as against the other. armed with .38 (sic) revolver hand gun by means of violence against or intimidation of
In the instant case, the testimonies of Malintad and Cabingatan would have been merely persons and with intent to gain, conspiring, confederating and mutually helping one another,
corroborative; furthermore, there is no showing at all that they were not available to the did then and there willfully, unlawfully and feloniously take, steal and carry away cash
appellant even through compulsory process. amounting to THREE THOUSAND THREE HUNDRED FIFTY (P3,350.00) PESOS, Philippine
Currency, belonging to one PACITA D. DICDICAN, to the damage and prejudice of the owner
thereof in the aforestated sum; and, in pursuance or on the occasion of (sic) the said
DECISION Robbery, the above-named accused, Rolando Valles, armed with said weapon and with lewd
designs, by means of force, violence and intimidation, did then and there willfully, unlawfully
and feloniously have arnal (sic) knowledge of one PACITA D. DICDICAN, a woman, against her
DAVIDE, JR., J.: will." 5

and —
This is an appeal from the Decision 1 of Branch 6 (Mati) of the Regional Trial Court (RTC) of
Davao Oriental in Criminal Case No. 1847, promulgated on 22 October 1990, convicting "That on or about May 13, 1989, in the Municipality of Mati, Province of Davao Oriental,
appellant Domingo Casinillo for the rape of Leticia Soria and sentencing Philippines and within the jurisdiction of this Honorable Court, the above-named accused,
him:jgc:chanrobles.com.ph armed with .38 (sic) caliber revolver and .45 (sic) hand gun pistol, by means of violence
against or intimidation of persons and with intent to gain, conspiring, confederating and
". . . to suffer the imprisonment of Reclusion Perpetua, to pay the offended party the sum of mutually helping one another, did then and there wilfully, unlawfully and feloniously take,
P20,000.00 and P10,000.00 as moral damages and attorney’s fees, respectively, and to pay steal and carry away from one LIBERTAD P. CALLAO cash amounting to FOUR (sic) THOUSAND
the costs of the suit. . . ." 2 TWO HUNDRED PESOS (P4,200.00) PESOS, Philippines (sic) Currency, to the damage and
prejudice of the owner thereof in the aforestated sum." 6
The case originated from a complaint for rape, dated 17 May 1989 and filed before the
Municipal Trial Court of Mati, Davao Oriental by the offended party, Leticia Soria. Two (2) Upon arraignment on 8 August 1989, the appellant entered a plea of not guilty in these three
other complaints for robbery with rape and robbery in band, allegedly committed by the (3) cases. His co-accused entered the same plea in Criminal Cases Nos. 1884 and 1845. 7
appellant and his companions, were also filed with said court. After a preliminary
investigation, said court issued an order finding reasonable ground to hold the accused for Thereafter, the three (3) cases were tried jointly.chanrobles virtual lawlibrary
trial. 3 On 12 July 1989, Provincial Prosecutor Salvador M. Bijis filed against herein appellant
the following Information in Criminal Case No. 1847:chanroblesvirtualawlibrary In its decision promulgated on 22 October 1990, the trial court acquitted all the accused in
Criminal Cases Nos. 1844 and 1845, but convicted appellant in Criminal Case No. 1847. The

38
dispositive portion of the decision reads:jgc:chanrobles.com.ph
Dissatisfied with the foregoing decision, appellant filed his Notice of Appeal on 25 October
"IN VIEW WHEREOF, judgments are hereby rendered:chanrob1es virtual 1aw library 1990. 9

I The antecedent facts that gave rise to this prosecution are succinctly summarized in the Brief
for the Appellee as follows:jgc:chanrobles.com.ph

IN CRIMINAL CASE NO. 1844 "At the time of the incident that gave rise to this prosecution for Rape, complainant Leticia V.
Soria was an 18-year-old barrio lass residing in a one-storey house located at Barangay Danao
FOR: ROBBERY WITH RAPE in Mati, Davao Oriental (TSN, 6 November 1989, pp. 43-45). Her companions in the house at
that time were her mother Consolacion, her married sister Julita Soria and her elder brother
There being no evidentiary basis for a finding of guilt beyond reasonable doubt, Accused Mario Soria (ibid., pp. 45, 50, 52; TSN, 23 October 1989, p. 6).
Domingo Casinillo, Danilo Casinillo, Danilo Valles and Rolando Valles, are hereby acquitted of
the offense under inquiry with costs de oficio. Appellant Domingo Casinillo, on the other hand, was known to complainant since 1988, he
being the uncle of Rosita Dialon, her classmate and friend when she was still studying at Iba
II sometime in 1988 (TSN, 6 November 1989, pp. 46-48; TSN, 13 November 1989, p. 22; TSN, 19
April 1990, p. 23).

IN CRIMINAL CASE NO. 1845 At about 8:30 in the evening of 13 May 1989, while complainant, along with her mother
Consolacion, her brother Mario and her sister Julieta, were resting inside the kitchen of their
FOR: ROBBERY IN BAND house in said locality, somebody suddenly pushed the kitchen door and barged inside the
house, followed by two companions (TSN, 6 November 1989, pp. 45-46, 50, 70; TSN, 13
A reasonable doubt having been engendered in the mind of the Court as to their guilt, November 1989, pp. 8-9; TSN, 21 September 1989, p. 22; TSN, 26 October 1989, pp. 58-59).
Accused Domingo Casinillo, Danilo Casinillo, Danilo Valles and Rolando Valles are hereby By the light of the fluorescent lamp in the kitchen, she recognized the intruders to be
acquitted with costs de officio. appellant, who was armed with a short firearm and wearing a black T-shirt and pants covered
by an orange jacket, and his co-accused Danilo Valles and Rolando Valles (TSN, 6 November
III 1989, pp. 46, 48-50, 52, 70-71; TSN, 13 November 1989, pp. 9-10).

Appellant asked them if other persons were inside the house and, without waiting for an
IN CRIMINAL CASE NO. 1847 answer, proceeded to search the rooms (TSN, 6 November 1989, p. 49; TSN, 26 October
1989, p. 61). When her mother Consolacion asked appellant why he was searching the house,
FOR: RAPE the latter poked a revolver at her head and peremptorily told her to keep quiet or else he
would kill all of them (TSN, 6 November 1989, p. 50; TSN, 21 September 1989, pp. 18-21, 40).
Accused Domingo Casinillo is hereby pronounced guilty beyond reasonable doubt of the
crime of Rape under Article 335 of the Revised Penal Code, and as amended by RA No. 411. Thereafter, appellant took a curtain inside the house, tore it to pieces and tied her mother
Accordingly, said accused is sentenced to suffer the imprisonment of Reclusion Perpetua, to and brother’s hands with it (TSN, 6 November 1989, pp. 51-52). Thereafter, when accused
pay the offended party the sum of P20,000.00 and P10,000.00 as moral damages and Rolando Valles and Danilo Valles brought Mario outside the house, appellant grabbed her
attorney’s fees, respectively, and to pay the costs of the suit. No subsidiary imprisonment is hands and also tied them (TSN, 6 November 1989, pp. 52-54).
imposed in case of insolvency.
Subsequently, appellant forcibly brought complaint (sic) outside the house with a gun poked
SO ORDERED." 8 at her (ibid., pp. 55-56). Appellant then told her they would go to the house of her neighbor,
Emok Ganabe, and that she would be the one to knock on the door (ibid., p. 57). Fearful for
In convicting the appellant, the trial court concluded that his guilt was positively established her life, she went along with him (ibid.).chanrobles virtual lawlibrary
as he was clearly identified by the victim, and ruled that his defense of denial and alibi
cannot prevail over the positive identification made by the offended party who had known On the way and at a distance of about 300 meters away from her house, appellant suddenly
him long before the rape.chanrobles.com:cralaw:red stopped complainant from proceeding further and dragged her towards the bushes (ibid., p.

39
58; TSN, 13 November 1989, pp. 47-48). 19, 36) From the police station, she proceeded to the Provincial Hospital of Davao Oriental
where she was physically examined, by Dra. Virginia Landigan issued (sic) her Medical (sic)
Appellant suddenly boxed complainant twice in the solar plexus which caused her to collapse Certificate (TSN, 6 November 1989, p. 74). (Exh. "A", Folder of Exhs., p. 1) which discloses the
on the ground (TSN, 6 November 1989, p. 58). following findings:chanrobles law library

Thereupon, appellant hugged and kissed her, telling her, ‘if you would only agree to what we ‘Hymenal laceration at 5:00 o’clock position of bleeding;
would do now, then everything would be alright’ (ibid., pp. 58-59). Complainant tried to
wriggle herself free but then appellant hit her hard on the right thigh with his firearm (ibid., Multiple contusion-hematoma at medial aspect of both thighs.’
p. 59). When she continued to resist, appellant boxed her thighs several times which made
her feel weak (ibid.). Appellant poked his gun at her and ordered her to raise her hands. Afterwards, she returned to the police station in Mati, Davao Oriental, where she gave her
Appellant raised her T-shirt and then proceeded to suck her nipples and to kiss her all over Statement relating the incident (TSN, 6 November 1989, p. 75; TSN, 13 November 1989, pp.
the body (ibid., p. 60). Vainly, she tried with all her might to kick appellant but did not hit him 19-20)." 10
(ibid.; TSN, 13 November 1989, p. 43). Appellant pulled down her checkered shorts and black
panty (Exhs. "C" and "D", Envelop. of prosecution exhibits, Crim. Case No. 1847) which made Appellant interposed the defense of alibi. According to him, on 13 May 1989, he was in his
her struggle all the more to free herself from his clutches but appellant boxed her again on house in Dawan, Mati, Davao Oriental together with his wife and son; he alleges that he
both thighs which caused her to feel weaker (ibid., pp. 61, 63). never left this place. 11 His wife (Rosalinda) and father (Guillermo) corroborated his story.

Thereafter, while she cried and begged him to stop, appellant undressed himself and went In his Brief, appellant claims:jgc:chanrobles.com.ph
on top of her (ibid., p. 63). When she crossed her legs, appellant forcibly opened them and
inserted his legs between hers (ibid., p. 64). Appellant then tried to kiss her but she evaded "1. THAT THE LOWER COURT GRAVELY ERRED IN FINDING THAT THE PRIVATE OFFENDED
this by turning her face sidewards. He boxed her again (ibid., pp. 64-65; TSN, 13 November PARTY, LETICIA V. SORIA, POSITIVELY IDENTIFIED THE ACCUSED;
1989, p. 44).
2. THAT THE LOWER COURT GRAVELY ERRED IN RULING THAT THE PRIVATE OFFENDED
Appellant covered complainant’s mouth with one hand and pointed the gun at her throat PARTY, LETICIA V. SORIA, IS CREDIBLE AND THAT HER TESTIMONY IS WORTHY OF BELIEF; AND
with the other (ibid.; TSN, 13 November 1989, p. 40). This time she felt that appellant’s penis
was hard (TSN, 6 November 1989, p. 65). Whenever she resisted or moved her body, 3. THAT THE LOWER COURT GRAVELY ERRED IN DECIDING THAT THE ACCUSED IS GUILTY
appellant would punch her thighs and body, thereby causing her to feel very very weak BEYOND REASONABLE DOUBT." 12
(ibid.). Finally, she felt appellant insert his penis inside her vagina which caused her so much
pain, this being her first sexual experience (ibid., pp. 63, 66; TSN, 13 November 1989, pp. 40, In his joint discussion of these errors, appellant insists that the offended party was not able
42). to positively identify him as evidenced by the 14 May 1988 entries in the Police Blotter 13
which show that the persons who committed the crime of rape were wearing masks of white
Afterwards, appellant ordered her to dress up and she angrily screamed at him, ‘How could I cloth. The particular entry reads:jgc:chanrobles.com.ph
dress up, when my hands are tied!’ (TSN, 6 November 1989, p. 67). He untied her hands and
while dressing up, she felt pain not only in her vagina but also all over her body and noticed "1020H — The person of Consolacion Soria y Villamor, of legal age, married, farmer and a
bloodstains on her T-shirt (ibid., pp. 66-67; TSN, 13 November 1989, pp. 44-45). resident of Danao, this municipality, appeared this (sic) headquarters with the complaint that
her daughter was raped by two unidentified persons wearing a mask (sic) (white cloth) at
Appellant brought her back to her house where she saw her mother, her elder sister and about 8:30 o’clock in the evening of May 13, 1989, inside their house at the bushy grasses,
their neighbors Pacita Dicdican and Libertad Callao (TSN, 6 November 1989, pp. 68-69, TSN, after, the reporter (sic) both hands hagtied (sic). Victim was advised to go to the provincial
13 November 1989, p. 46). Appellant, warned her not to tell anybody that he raped her and hospital. Case was referred to Investigation Section." 14
headed downstairs (TSN, 6 November 1989, pp. 68, 76). After appellant left, however, she
told her mother what happened (ibid., p. 69; TSN, 13 November 1989, p. 46). There was likewise no positive identification because the victim failed to inform the barangay
captain that it was the accused who raped her. She thus perjured herself when she stated in
The following morning, 14 May 1989, she and her mother, accompanied by her brothers her affidavit and during the preliminary investigation before the Municipal Trial Court that
Danilo, Sanito and Mario, together with their aforenamed neighbors reported the rape to she knew and recognized her assailant.chanrobles lawlibrary : rednad
Barangay Captain Patricio Cabingatan who, in turn, brought them to the police headquarters
in Mati, Davao Oriental (TSN, 6 November 1989, pp. 72-74; TSN, 13 November 1989, pp. 17, Appellant also questions the three (3) police "lineups" of the four (4) accused on the ground

40
that the same were conducted without the assistance of counsel; moreover, the accused strength from the weakness of the evidence for the defense. 26
were not informed of their right to counsel. He further claims that these lineups "only help
(sic) to underscore the nagging doubts that plagued the complainants as to the identity of Guided by the foregoing principles, this Court undertook a careful and meticulous review,
the four accused," and "were resorted to because complainants Leticia Soria and Pacita analysis and evaluation of the evidence in this case and reached the inevitable conclusion
Dicdican were unsure of their respective (alleged) assailants." 15 that the appellant’s guilt has been proven beyond reasonable doubt. The findings of fact of
the trial court are supported by convincing and credible evidence upon which Our minds can
Finally, he maintains that the prosecution deliberately failed to present P/Sgt. Arnold rest unburdened by any doubt. The said court has not overlooked any fact of substance and
Malintad, who led the police team that arrested the four (4) accused, and barangay captain value which, if considered, might affect the result of this case. We find then no reason to
Patricio Cabingatan. 16 disturb such findings. This is a settled rule in this jurisdiction. 27

What is then in issue in this appeal is the credibility of the offended party. In the instant case, the offended party positively recognized the appellant from the time he
and his companions barged into the kitchen which was then well lit. His face was exposed
Rape is truly a most detestable crime for it involves not only an intrusion into a woman’s from the time he dragged her out of the house to the time he raped her by the bushes and
privacy, but also a violation of her sensibilities and an assault on her human dignity. Its brought her back to the house. Hence, the appellant was not only clearly and unmistakably
traumatic consequences on the unfortunate victim and gruesome injury to the peace and seen in the vicinity of the crime, he was also positively identified by the offended party as her
order of the community cannot be ignored. 17 Thus, once established, it must be severely assailant and ravager. Aside from the fact that her testimony is full of sincerity and candor,
and impartially punished. 18 there is absolutely no proof that she was improperly motivated to testify against the
appellant. It is difficult to conceive of a reason that would have motivated the offended
However, it is fundamental that an accusation is not synonymous with guilt; 19 in our legal party, a provincial lass, to undergo the embarrassment and humiliation of a public trial
system, every accused is presumed innocent until the contrary is proved. 20 It is therefore, affecting her honor and submit herself to the examination of her private parts other than for
incumbent upon the prosecution to demonstrate the culpability of the accused and the purpose of bringing her defiler to justice. 28 Her testimony deserves full faith and credit.
overthrow the presumption of innocence with proof beyond reasonable doubt. 21 In 29 Besides, she was able to weather the rigorous cross-examination which sought to cast
determining whether or not the prosecution’s evidence meets this standard, it is necessary doubt on her testimony. She was unwavering in her identification of the
for the court to scrutinize the same independently of the defense offered by the accused. It is appellant.chanrobles.com:cralaw:red
only if and when, upon such a review, the court reaches the conclusion that the crime
charged was committed by the very person standing trial may a judgment of conviction be Appellant’s reliance on the police blotter deserves nothing more than the scantest
correctly rendered. consideration. In the first place," [t]he entry in the police blotter is not necessarily entitled to
full credit for it could be incomplete and inaccurate, sometimes from either partial
Absolute certainty of guilt is not, however, demanded by law for a conviction. The sphere of suggestions or for want of suggestion or inquiries, without the aid of which the witness may
criminal law does not call for such degree of proof as would exclude the possibility of error. be unable to recall the connected collateral circumstances necessary for the correction of the
Only moral certainty as to the presence of the elements, constituting the offense, as well as first suggestion of his memory and for his accurate recollection of all that pertain to the
to the identity of the offender, is required; in short, what is needed is that degree of proof subject." 30 In the second place, the entries relied upon by the appellant are sadly wanting in
which produces conviction in an unprejudiced mind. 22 The conscience must be satisfied that material particulars; this clearly shows that no effort at all was exerted by the policeman on
on the accused could be laid the responsibility for the offense charged: that not only did he duty to accurately obtain the facts of the reported crime. Thirdly, as indicated therein, it is
perpetrate the act, but that it amounted to a crime. 23 The strongest suspicion must not be not the offended party, but rather her mother Consolacion, who is alleged to have personally
permitted to sway judgment; 24 if a reasonable doubt exists, that doubt must be resolved in made the report. Fourthly, there is no evidence that the entries were read to the offended
favor of the accused and he must be acquitted.25cralaw:red party or that they were presented to her. Not having been entered by her and there being no
sufficient showing that she actively participated in their preparation, these entries cannot
Furthermore, considering the severity of the penalties prescribed for the offense of rape, fairly or logically bind her.
courts are enjoined to take extreme care in weighing the evidence in order to avoid an
injustice to the accused. Thus, this Court has set three (3) basic guiding principles in The grievance concerning the police lineups is misplaced. The trial court’s finding as to the
reviewing rape cases: (1) an accusation for rape can be made with facility; it is difficult to identification of the accused did not even consider the said lineups. Moreover, in People v.
prove, but more difficult for the person accused, though innocent, to disprove; (2) in view of Olvis, 31 this Court ruled, in effect, that a police lineup is not encompassed in the
the intrinsic nature of the crime of rape where only two (2) persons are usually involved, the Constitutional right against testimonial compulsion 32 and the right to counsel.
testimony of the complainant must be scrutinized with extreme caution; and (3) the evidence Thus:jgc:chanrobles.com.ph
for the prosecution must stand or fall on its own merits, and cannot be allowed to draw

41
". . . an act, whether testimonial or passive, that would amount to disclosure of incriminatory
facts is covered by the inhibition of the Constitution.chanrobles virtual lawlibrary SO ORDERED.

This should be distinguished, parenthetically, from mechanical acts the accused is made to Republic of the Philippines
execute not meant to unearth undisclosed facts but to ascertain physical attributes SUPREME COURT
determinable by simple observation. This includes requiring the accused to submit to a test Manila
to extract virus from body, 33 or compelling him to expectorate morphine from his mouth,
34 or making her submit to a pregnancy test, 35 or a footprinting test, 36 or requiring him to
EN BANC
take part in a police lineup in certain cases. 37 In each case, the accused does not speak his
guilt. It is not a prerequisite therefore that he be provided with the guiding hand of
counsel."cralaw virtua1aw library G.R. No. 16444 September 8, 1920

As to appellant’s defense of alibi, We have time and again ruled that the same remains to be EMETERIA VILLAFLOR, petitioner,
a patently weak defense when corroborated only by the testimony of the accused’s spouse vs.
or parents who would naturally be expected to give statements that would free their spouse RICARDO SUMMERS, sheriff of the City of Manila, respondent.
or son from criminal liability. For alibi to be acceptable, it must be presented with strong
corroboration 38 for it is inherently weak and easily fabricated. 39 It cannot prevail over the Alfredo Calupitan, and Gibbs, McDonough & Johnson for petitioner.
positive identification of an accused. 40 Assistant City of Fiscal Felix for respondent.

Moreover, for the defense of alibi to prosper, it is not enough to prove that the accused was
somewhere else when the crime was committed. It must likewise be undisputably MALCOLM, J.:
demonstrated that it was physically impossible for him to have been at the scene of the
crime at the time the same was committed. 41 Appellant failed to show such physical The petitioner prays that a writ of habeas corpus issue to restore her to her liberty.
impossibility.
The facts are not dispute. In a criminal case pending before the Court of First Instance of the
Equally without merit is appellant’s contention that the prosecution deliberately suppressed city of Manila, Emeteria Villaflor and Florentino Souingco are charged with the crime of
evidence by not presenting P/Sgt. Arnold Malintad and Barangay Captain Patricio Cabingatan. adultery. On this case coming on for trial before the Hon. Pedro Concepcion, Judge of First
The suggested reason, of course, is obvious — their testimonies would have been adverse to Instance, upon the petitioner of the assistant fiscal for the city of Manila, the court ordered
the prosecution if produced. This rule, embodied in Section 3 (e), Rule 131 of the Rules of the defendant Emeteria Villaflor, nor become the petitioner herein, to submit her body to
Court, does not apply if the evidence claimed to be suppressed is merely corroborative, 42 or the examination of one or two competent doctors to determine if she was pregnant or not.
is equally available to the accused 43 because in the latter case, the evidence would have the The accused refused to obey the order on the ground that such examination of her person
same weight against one party as against the other. 44 In the instant case, the testimonies of was a violation of the constitutional provision relating to self-incrimination. Thereupon she
Malintad and Cabingatan would have been merely corroborative; furthermore, there is no was found in contempt of court and was ordered to be committed to Bilibid Prison until she
showing at all that they were not available to the appellant even through compulsory should permit the medical examination required by the court.
process.chanrobles.com : virtual law library
The sole legal issue from the admitted facts is whether the compelling of a woman to permit
Prescinding from all the foregoing, We thus affirm the decision appealed from, except as to
her body to be examined by physicians to determine if she is pregnant, violates that portion
the moral damages which, taking into account the bestiality with which the rape was
of the Philippine Bill of Rights and that portion of our Code of Criminal Procedure which find
committed — leaving a perpetual scar in the memory of the victim which would affect her
their origin in the Constitution of the United States and practically all state constitutions and
future and causing untold outrage to the moral sense of the community — should be
in the common law rules of evidence, providing that no person shall be compelled in any
increased to P40,000.00.
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
WHEREFORE, except as above modified in respect to the moral damages, which is increased
August 29, 1916, section 3; paragraph 3; Code of Criminal Procedure, section 15 [4]; United
to P40,000.00, the decision appealed is hereby AFFIRMED, with costs against the appellant
States Constitution, fifth amendment.) Counsel for petitioner argues that such bodily
Domingo Casinillo.
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
42
the instant case has held with the fiscal; while it is brought to our notice that a judge of the material." (See also, of same general tenor, decision of Mr. Justice Day in Adams vs. New York
same court has held on an identical question as contended for by the attorney for the [1903], 192 U. S., 585.) The Supreme Court of the Philippine Islands, in two decisions, has
accused and petitioner. 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
The authorities are abundant but conflicting. What may be termed the conservative courts process to extract from the defendant's own lips, against his will, an admission of his guilt."
emphasize greatly the humanitarianism of the constitutional provisions and are pleased to (U. S. vs. Tan Teng [1912], 23 Phil., 145; U. S. vs. Ong Siu Hong [1917], 36 Phil., 735, and the
extend the privilege in order that its mantle may cover any fact by which the accused is derivatory principle announced in 16 Corpus Juris, 567, 568, citing the United States Supreme
compelled to make evidence against himself. (Compare State vs. Jacobs [1858], 50 N. C., 259 Court and the Supreme Court of the Philippine Islands as authority.)
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., Although we have stated s proposition previously announced by this court and by the highest
338.) A case concordant with this view and almost directly in point is People vs. McCoy tribunal in the United States, we cannot unconcernedly leave the subject without further
([1873], 45 How. Pr., 216). A woman was charged with the crime of infanticide. The corner consideration. Even in the opinion Mr. Justice Holmes, to which we have alluded, there was
directed two physicians to go to the jail and examine her private parts to determine whether inserted the careful proviso that "we need not consider how far a court would go in
she had recently been delivered of a child. She objected to the examination, but being compelling a man to exhibit himself." Other courts have likewise avoided any attempt to
threatened with force, yielded, and the examination was had. The evidence of these determine the exact location of the dividing line between what is proper and what is
physicians was offered at the trial and ruled out. The court said that the proceeding was in improper in this very broad constitutional field. But here before us is presented what would
violation of the spirit and meaning of the Constitution, which declares that "no person shall seem to be the most extreme case which could be imagined. While the United States
be compelled in any criminal case to be a witness against himself." Continuing, the court Supreme Court could nonchalantly decree that testimony that an accused person put on a
said: "They might as well have sworn the prisoner, and compelled her, by threats, to testify blouse and it fitted him is not a violation of the constitutional provision, while the Supreme
that she had been pregnant, and had been delivered of a child, as to have compelled her, by Court of Nuevada could go so far as to require the defendant to roll up his sleeve in order to
threats, to allow them to look into her person, with the aid of a speculum, to ascertain disclose tattoo marks, and while the Supreme Court of the Philippine Islands could permit
whether she had been pregnant and been delivered of a child. . . . Has this court the right to substances taken from the person of an accused to be offered in evidence, none of these
compel the prisoner now to submit to an examination they are of the opinion she is not a even approach in apparent harshness an order to make a woman, possibly innocent, to
virgin, and has had a child? It is not possible that this court has that right; and it is too clear to disclose her body in all of its sanctity to the gaze of strangers. We can only consistently
admit of argument that evidence thus obtained would be inadmissible against the prisoner." 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
It may be revealing a judicial secret, but nevertheless we cannot refrain from saying that, merely to prohibit testimonial compulsion.
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 So much for the authorities. For the nonce we would prefer to forget them entirely, and here
the tentative recommendation that the court should lay down the general rule that a in the Philippines, being in the agrreable state of breaking new ground, would rather desire
defendant can be compelled to disclose only those parts of the body which are not usually our decision to rest on a strong foundation of reason and justice than on a weak one blind
covered. Buth having disabused our minds of a too sensitive appreciation of the rights of adherence to tradition and precedent. Moreover, we believe that an unbiased consideration
accused persons, and having been able, as we think, to penetrate through the maze of law of the history of the constitutional provisions will disclose that our conclusion is in exact
reports to the policy which lies behind the constitutional guaranty and the common law accord with the causes which led to its adoption.
principle, we have come finally to take our stand with what we believe to be the reason of
the case. 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
In contradistinction to the cases above-mentioned are others which seem to us more thumbscrew and the rack. A legal shield was raised against odious inquisitorial methods of
progressive in nature. Among these can be prominently mentioned decisions of the United interrogating an accused person by which to extort unwilling confessions with the ever
States Supreme Court, and the Supreme Court of these Islands. Thus, the always forward present temptation to commit the crime of perjury. The kernel of the privilege as disclosed
looking jurist, Mr. Justice Holmes, in the late case of Holt vs. United States ([1910], 218 U. S., by the textwriters was testimonial compulsion. As forcing a man to be a witness against
245), in resolving an objection based upon what he termed "an extravagant extension of the himself was deemed contrary to the fundamentals of republican government, the principle
Fifth Amendment," said: "The prohibition of compelling a man in a criminal court to be a was taken into the American Constitutions, and from the United States was brought to the
witness against himself is a prohibition of the use of physical or moral compulsion to extort Philippine Islands, in exactly as wide — but no wider — a scope as it existed in old English
communications from him, not an exclusion of his body as evidence when it may be days. The provision should here be approached in no blindly worshipful spirit, but with a

43
judicious and a judicial appreciation of both its benefits and its abuses. (Read the scholarly corollary to the proposition is that, an ocular inspection of the body of the accused is
articles of Prof. Wigmore in 5 Harvard L. R. [1891], p. 71, and 15 Harvard L. R., 1902, p. 610 permissible. The proviso is that torture of force shall be avoided. Whether facts fall within or
found in 4 Wigmore on Evidence, pp. 3069 et seq., and U. S. vs. Navarro [1904], Phil., 143.) without the rule with its corollary and proviso must, of course, be decided as cases arise.

Perhaps the best way to test the correctness of our position is to go back once more to It is a reasonable presumption that in an examination by reputable and disinterested
elements and ponder on what is the prime purpose of a criminal trial. As we view it, the physicians due care will be taken not to use violence and not to embarass the patient any
object of having criminal laws is to purgue the community of persons who violate the laws to more than is absolutely necessary. Indeed, no objection to the physical examination being
the great prejudice of their fellow men. Criminal procedure, the rules of evidence, and made by the family doctor of the accused or by doctor of the same sex can be seen.
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 Although the order of the trial judge, acceding to the request of the assistant fiscal for an
its endeavor to ascertain the truth. No accused person should be afraid of the use of any examination of the person of the defendant by physicians was phrased in absolute terms, it
method which will tend to establish the truth. For instance, under the facts before us, to use should, nevertheless, be understood as subject to the limitations herein mentioned, and
torture to make the defendant admit her guilt might only result in including her to tell a therefore legal. The writ of habeas corpus prayed for is hereby denied. The costs shall be
falsehood. But no evidence of physical facts can for any substantial reason be held to be taxed against the petitioner. So ordered.
detrimental to the accused except in so far as the truth is to be avoided in order to acquit a
guilty person.
Republic of the Philippines
Obviously a stirring plea can be made showing that under the due process of law cause of the SUPREME COURT
Constitution every person has a natural and inherent right to the possession and control of Manila
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 EN BANC
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 G.R. No. 75885 May 27, 1987
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 BATAAN SHIPYARD & ENGINEERING CO., INC. (BASECO), petitioner,
superior to the complete immunity of a person to be let alone is the inherent which the vs.
public has in the orderly administration of justice. Unfortunately, all too frequently the PRESIDENTIAL COMMISSION ON GOOD GOVERNMENT, CHAIRMAN JOVITO SALONGA,
modesty of witnesses is shocked by forcing them to answer, without any mental evasion, COMMISSIONER MARY CONCEPCION BAUTISTA, COMMISSIONER RAMON DIAZ,
questions which are put to them; and such a tendency to degrade the witness in public COMMISSIONER RAUL R. DAZA, COMMISSIONER QUINTIN S. DOROMAL, CAPT. JORGE B.
estimation does not exempt him from the duty of disclosure. Between a sacrifice of the SIACUNCO, et al., respondents.
ascertainment of truth to personal considerations, between a disregard of the public welfare
for refined notions of delicacy, law and justice cannot hesitate.
Apostol, Bernas, Gumaru, Ona and Associates for petitioner.

The protection of accused persons has been carried to such an unwarranted extent that Vicente G. Sison for intervenor A.T. Abesamis.
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 NARVASA, J.:
spectators. Against such a loose extension of constitutional guaranties we are here prepared
to voice our protest.
Challenged in this special civil action of certiorari and prohibition by a private corporation
known as the Bataan Shipyard and Engineering Co., Inc. are: (1) Executive Orders Numbered
Fully conscious that we are resolving a most extreme case in a sense, which on first 1 and 2, promulgated by President Corazon C. Aquino on February 28, 1986 and March 12,
impression is a shock to one's sensibilities, we must nevertheless enforce the constitutional 1986, respectively, and (2) the sequestration, takeover, and other orders issued, and acts
provision in this jurisdiction in accord with the policy and reason thereof, undeterred by done, in accordance with said executive orders by the Presidential Commission on Good
merely sentimental influences. Once again we lay down the rule that the constitutional Government and/or its Commissioners and agents, affecting said corporation.
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 1. The Sequestration, Takeover, and Other Orders Complained of
44
a. The Basic Sequestration Order Further, you are authorized to request for Military/Security Support from the
Military/Police authorities, and such other acts essential to the achievement of this
The sequestration order which, in the view of the petitioner corporation, initiated all its sequestration order. 1
misery was issued on April 14, 1986 by Commissioner Mary Concepcion Bautista. It was
addressed to three of the agents of the Commission, hereafter simply referred to as PCGG. It b. Order for Production of Documents
reads as follows:
On the strength of the above sequestration order, Mr. Jose M. Balde, acting for the PCGG,
RE: SEQUESTRATION ORDER addressed a letter dated April 18, 1986 to the President and other officers of petitioner firm,
reiterating an earlier request for the production of certain documents, to wit:
By virtue of the powers vested in the Presidential Commission on Good
Government, by authority of the President of the Philippines, you are hereby 1. Stock Transfer Book
directed to sequester the following companies.
2. Legal documents, such as:
1. Bataan Shipyard and Engineering Co., Inc. (Engineering Island Shipyard
and Mariveles Shipyard) 2.1. Articles of Incorporation

2. Baseco Quarry 2.2. By-Laws

3. Philippine Jai-Alai Corporation 2.3. Minutes of the Annual Stockholders Meeting from 1973 to 1986

4. Fidelity Management Co., Inc. 2.4. Minutes of the Regular and Special Meetings of the Board of
Directors from 1973 to 1986
5. Romson Realty, Inc.
2.5. Minutes of the Executive Committee Meetings from 1973 to 1986
6. Trident Management Co.
2.6. Existing contracts with suppliers/contractors/others.
7. New Trident Management
3. Yearly list of stockholders with their corresponding share/stockholdings from
8. Bay Transport 1973 to 1986 duly certified by the Corporate Secretary.

9. And all affiliate companies of Alfredo "Bejo" Romualdez 4. Audited Financial Statements such as Balance Sheet, Profit & Loss and others
from 1973 to December 31, 1985.
You are hereby ordered:
5. Monthly Financial Statements for the current year up to March 31, 1986.
1. To implement this sequestration order with a minimum disruption of these
companies' business activities. 6. Consolidated Cash Position Reports from January to April 15, 1986.

2. To ensure the continuity of these companies as going concerns, the care and 7. Inventory listings of assets up dated up to March 31, 1986.
maintenance of these assets until such time that the Office of the President
through the Commission on Good Government should decide otherwise. 8. Updated schedule of Accounts Receivable and Accounts Payable.

3. To report to the Commission on Good Government periodically. 9. Complete list of depository banks for all funds with the authorized signatories for
withdrawals thereof.

10. Schedule of company investments and placements. 2


45
The letter closed with the warning that if the documents were not submitted within five afterwards, Commissioner Bautista, in representation of the PCGG, authorized another party,
days, the officers would be cited for "contempt in pursuance with Presidential Executive A.T. Abesamis, to operate the quarry, located at Mariveles, Bataan, an agreement to this
Order Nos. 1 and 2." effect having been executed by them on September 17, 1986. 7

c. Orders Re Engineer Island f. Order to Dispose of Scrap, etc.

(1) Termination of Contract for Security Services By another Order of Commissioner Bautista, this time dated June 26, 1986, Mayor
Buenaventura was also "authorized to clean and beautify the Company's compound," and in
A third order assailed by petitioner corporation, hereafter referred to simply as BASECO, is this connection, to dispose of or sell "metal scraps" and other materials, equipment and
that issued on April 21, 1986 by a Capt. Flordelino B. Zabala, a member of the task force machineries no longer usable, subject to specified guidelines and safeguards including audit
assigned to carry out the basic sequestration order. He sent a letter to BASECO's Vice- and verification. 8
President for Finance, 3 terminating the contract for security services within the Engineer
Island compound between BASECO and "Anchor and FAIRWAYS" and "other civilian security g. The TAKEOVER Order
agencies," CAPCOM military personnel having already been assigned to the area,
By letter dated July 14, 1986, Commissioner Ramon A. Diaz decreed the provisional takeover
(2) Change of Mode of Payment of Entry Charges by the PCGG of BASECO, "the Philippine Dockyard Corporation and all their affiliated
companies." 9 Diaz invoked the provisions of Section 3 (c) of Executive Order No. 1,
On July 15, 1986, the same Capt. Zabala issued a Memorandum addressed to "Truck Owners empowering the Commission —
and Contractors," particularly a "Mr. Buddy Ondivilla National Marine Corporation," advising
of the amendment in part of their contracts with BASECO in the sense that the stipulated * * To provisionally takeover in the public interest or to prevent its disposal or
charges for use of the BASECO road network were made payable "upon entry and not dissipation, business enterprises and properties taken over by the government of
anymore subject to monthly billing as was originally agreed upon." 4 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
d. Aborted Contract for Improvement of Wharf at Engineer Island disposed of by the appropriate authorities.

On July 9, 1986, a PCGG fiscal agent, S. Berenguer, entered into a contract in behalf of A management team was designated to implement the order, headed by Capt. Siacunco, and
BASECO with Deltamarine Integrated Port Services, Inc., in virtue of which the latter was given the following powers:
undertook to introduce improvements costing approximately P210,000.00 on the BASECO
wharf at Engineer Island, allegedly then in poor condition, avowedly to "optimize its 1. Conducts all aspects of operation of the subject companies;
utilization and in return maximize the revenue which would flow into the government
coffers," in consideration of Deltamarine's being granted "priority in using the improved 2. Installs key officers, hires and terminates personnel as necessary;
portion of the wharf ahead of anybody" and exemption "from the payment of any charges
for the use of wharf including the area where it may install its bagging equipments" "until the 3. Enters into contracts related to management and operation of the companies;
improvement remains in a condition suitable for port operations." 5 It seems however that
this contract was never consummated. Capt. Jorge B. Siacunco, "Head- (PCGG) BASECO 4. Ensures that the assets of the companies are not dissipated and used effectively
Management Team," advised Deltamarine by letter dated July 30, 1986 that "the new and efficiently; revenues are duly accounted for; and disburses funds only as may
management is not in a position to honor the said contract" and thus "whatever be necessary;
improvements * * (may be introduced) shall be deemed unauthorized * * and shall be at * *
(Deltamarine's) own risk." 6 5. Does actions including among others, seeking of military support as may be
necessary, that will ensure compliance to this order;
e. Order for Operation of Sesiman Rock Quarry, Mariveles, Bataan
6. Holds itself fully accountable to the Presidential Commission on Good
By Order dated June 20, 1986, Commissioner Mary Bautista first directed a PCGG agent, Government on all aspects related to this take-over order.
Mayor Melba O. Buenaventura, "to plan and implement progress towards maximizing the
continuous operation of the BASECO Sesiman Rock Quarry * * by conventional methods;" but

46
h. Termination of Services of BASECO Officers It argues that the order to produce corporate records from 1973 to 1986, which it has
apparently already complied with, was issued without court authority and infringed its
Thereafter, Capt. Siacunco, sent letters to Hilario M. Ruiz, Manuel S. Mendoza, Moises M. constitutional right against self-incrimination, and unreasonable search and seizure. 14
Valdez, Gilberto Pasimanero, and Benito R. Cuesta I, advising of the termination of their
services by the PCGG. 10 c. Re PCGG's Exercise of Right of Ownership and Management

2. Petitioner's Plea and Postulates BASECO further contends that the PCGG had unduly interfered with its right of dominion and
management of its business affairs by —
It is the foregoing specific orders and acts of the PCGG and its members and agents which, to
repeat, petitioner BASECO would have this Court nullify. More particularly, BASECO prays 1) terminating its contract for security services with Fairways & Anchor, without the consent
that this Court- and against the will of the contracting parties; and amending the mode of payment of entry
fees stipulated in its Lease Contract with National Stevedoring & Lighterage Corporation,
1) declare unconstitutional and void Executive Orders Numbered 1 and 2; these acts being in violation of the non-impairment clause of the constitution; 15

2) annul the sequestration order dated April- 14, 1986, and all other orders subsequently 2) allowing PCGG Agent Silverio Berenguer to enter into an "anomalous contract" with
issued and acts done on the basis thereof, inclusive of the takeover order of July 14, 1986 Deltamarine Integrated Port Services, Inc., giving the latter free use of BASECO premises; 16
and the termination of the services of the BASECO executives. 11
3) authorizing PCGG Agent, Mayor Melba Buenaventura, to manage and operate its rock
a. Re Executive Orders No. 1 and 2, and the Sequestration and Takeover quarry at Sesiman, Mariveles; 17
Orders
4) authorizing the same mayor to sell or dispose of its metal scrap, equipment, machinery
While BASECO concedes that "sequestration without resorting to judicial action, might be and other materials; 18
made within the context of Executive Orders Nos. 1 and 2 before March 25, 1986 when the
Freedom Constitution was promulgated, under the principle that the law promulgated by the 5) authorizing the takeover of BASECO, Philippine Dockyard Corporation, and all their
ruler under a revolutionary regime is the law of the land, it ceased to be acceptable when the affiliated companies;
same ruler opted to promulgate the Freedom Constitution on March 25, 1986 wherein under
Section I of the same, Article IV (Bill of Rights) of the 1973 Constitution was adopted 6) terminating the services of BASECO executives: President Hilario M. Ruiz; EVP Manuel S.
providing, among others, that "No person shall be deprived of life, liberty and property Mendoza; GM Moises M. Valdez; Finance Mgr. Gilberto Pasimanero; Legal Dept. Mgr. Benito
without due process of law." (Const., Art. I V, Sec. 1)." 12 R. Cuesta I; 19

It declares that its objection to the constitutionality of the Executive Orders "as well as the 7) planning to elect its own Board of Directors; 20
Sequestration Order * * and Takeover Order * * issued purportedly under the authority of
said Executive Orders, rests on four fundamental considerations: First, no notice and hearing 8) allowing willingly or unwillingly its personnel to take, steal, carry away from petitioner's
was accorded * * (it) before its properties and business were taken over; Second, the PCGG is premises at Mariveles * * rolls of cable wires, worth P600,000.00 on May 11, 1986; 21
not a court, but a purely investigative agency and therefore not competent to act as
prosecutor and judge in the same cause; Third, there is nothing in the issuances which 9) allowing "indiscriminate diggings" at Engineer Island to retrieve gold bars supposed to
envisions any proceeding, process or remedy by which petitioner may expeditiously have been buried therein. 22
challenge the validity of the takeover after the same has been effected; and Fourthly, being
directed against specified persons, and in disregard of the constitutional presumption of 3. Doubts, Misconceptions regarding Sequestration, Freeze and Takeover Orders
innocence and general rules and procedures, they constitute a Bill of Attainder." 13
Many misconceptions and much doubt about the matter of sequestration, takeover and
b. Re Order to Produce Documents freeze orders have been engendered by misapprehension, or incomplete comprehension if
not indeed downright ignorance of the law governing these remedies. It is needful that these
misconceptions and doubts be dispelled so that uninformed and useless debates about them
may be avoided, and arguments tainted b sophistry or intellectual dishonesty be quickly

47
exposed and discarded. Towards this end, this opinion will essay an exposition of the law on Marcos, until the transactions leading to such acquisition by the latter can be
the matter. In the process many of the objections raised by BASECO will be dealt with. disposed of by the appropriate authorities.

4. The Governing Law 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
a. Proclamation No. 3 ineffectual the efforts of the Commission to carry out its task under this order. 28

The impugned executive orders are avowedly meant to carry out the explicit command of the So that it might ascertain the facts germane to its objectives, it was granted power to
Provisional Constitution, ordained by Proclamation No. 3, 23 that the President-in the exercise conduct investigations; require submission of evidence by subpoenae ad
of legislative power which she was authorized to continue to wield "(until a legislature is testificandum and duces tecum; administer oaths; punish for contempt. 29It was given power
elected and convened under a new Constitution" — "shall give priority to measures to also to promulgate such rules and regulations as may be necessary to carry out the purposes
achieve the mandate of the people," among others to (r)ecover ill-gotten properties amassed of * * (its creation). 30
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." 24 c. Executive Order No. 2

b. Executive Order No. 1 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
Executive Order No. 1 stresses the "urgent need to recover all ill-gotten wealth," and regime." It declares that:
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 1) * * the Government of the Philippines is in possession of evidence showing that
abroad." 25 Upon these premises, the Presidential Commission on Good Government was there are assets and properties purportedly pertaining to former Ferdinand E.
created, 26 "charged with the task of assisting the President in regard to (certain specified) Marcos, and/or his wife Mrs. Imelda Romualdez Marcos, their close relatives,
matters," among which was precisely- 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
* * The recovery of all in-gotten wealth accumulated by former President improper or illegal use of funds or properties owned by the government of the
Ferdinand E. Marcos, his immediate family, relatives, subordinates and close Philippines or any of its branches, instrumentalities, enterprises, banks or financial
associates, whether located in the Philippines or abroad, including the takeover or institutions, or by taking undue advantage of their office, authority, influence,
sequestration of all business enterprises and entities owned or controlled by them, connections or relationship, resulting in their unjust enrichment and causing grave
during his administration, directly or through nominees, by taking undue advantage damage and prejudice to the Filipino people and the Republic of the Philippines:"
of their public office and/or using their powers, authority, influence, connections or and
relationship. 27
2) * * said assets and properties are in the form of bank accounts, deposits, trust
In relation to the takeover or sequestration that it was authorized to undertake in the accounts, shares of stocks, buildings, shopping centers, condominiums, mansions,
fulfillment of its mission, the PCGG was granted "power and authority" to do the following residences, estates, and other kinds of real and personal properties in the
particular acts, to wit: Philippines and in various countries of the world." 31

1. To sequester or place or cause to be placed under its control or possession any Upon these premises, the President-
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 1) froze "all assets and properties in the Philippines in which former President
or disappearance which would frustrate or hamper the investigation or otherwise Marcos and/or his wife, Mrs. Imelda Romualdez Marcos, their close relatives,
prevent the Commission from accomplishing its task. subordinates, business associates, dummies, agents, or nominees have any interest
or participation;
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 2) prohibited former President Ferdinand Marcos and/or his wife * *, their close
the Marcos Administration or by entities or persons close to former President relatives, subordinates, business associates, duties, agents, or nominees

48
from transferring, conveying, encumbering, concealing or dissipating said assets or and entities (came to be) owned or controlled by them, during * * (the Marcos)
properties in the Philippines and abroad, pending the outcome of appropriate administration, directly or through nominees, by taking undue advantage of their
proceedings in the Philippines to determine whether any such assets or properties public office and/or using their powers, authority, influence, Connections or
were acquired by them through or as a result of improper or illegal use of or the relationship; 38
conversion of funds belonging to the Government of the Philippines or any of its
branches, instrumentalities, enterprises, banks or financial institutions, or by taking b) otherwise stated, that "there are assets and properties purportedly pertaining to
undue advantage of their official position, authority, relationship, connection or former President Ferdinand E. Marcos, and/or his wife Mrs. Imelda Romualdez
influence to unjustly enrich themselves at the expense and to the grave damage Marcos, their close relatives, subordinates, business associates, dummies, agents
and prejudice of the Filipino people and the Republic of the Philippines; 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
3) prohibited "any person from transferring, conveying, encumbering or otherwise by the Government of the Philippines or any of its branches, instrumentalities,
depleting or concealing such assets and properties or from assisting or taking part enterprises, banks or financial institutions, or by taking undue advantage of their
in their transfer, encumbrance, concealment or dissipation under pain of such office, authority, influence, connections or relationship, resulting in their unjust
penalties as are prescribed by law;" and enrichment and causing grave damage and prejudice to the Filipino people and the
Republic of the Philippines"; 39
4) required "all persons in the Philippines holding such assets or properties,
whether located in the Philippines or abroad, in their names as nominees, agents c) that "said assets and properties are in the form of bank accounts. deposits, trust.
or trustees, to make full disclosure of the same to the Commission on Good accounts, shares of stocks, buildings, shopping centers, condominiums, mansions,
Government within thirty (30) days from publication of * (the) Executive Order, * residences, estates, and other kinds of real and personal properties in the
*. 32 Philippines and in various countries of the world;" 40 and

d. Executive Order No. 14 2) that certain "business enterprises and properties (were) taken over by the
government of the Marcos Administration or by entities or persons close to former
A third executive order is relevant: Executive Order No. 14, 33 by which the PCGG is President Marcos. 41
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 6. Government's Right and Duty to Recover All Ill-gotten Wealth
findings." 34 All such cases, whether civil or criminal, are to be filed "with
the Sandiganbayan which shall have exclusive and original jurisdiction thereof." 35 Executive There can be no debate about the validity and eminent propriety of the Government's plan
Order No. 14 also pertinently provides that civil suits for restitution, reparation of damages, "to recover all ill-gotten wealth."
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 Neither can there be any debate about the proposition that assuming the above described
connection with * * (said Executive Orders Numbered 1 and 2) may be filed separately from factual premises of the Executive Orders and Proclamation No. 3 to be true, to be
and proceed independently of any criminal proceedings and may be proved by a demonstrable by competent evidence, the recovery from Marcos, his family and his
preponderance of evidence;" and that, moreover, the "technical rules of procedure and dominions of the assets and properties involved, is not only a right but a duty on the part of
evidence shall not be strictly applied to* * (said)civil cases." 36 Government.

5. Contemplated Situations But however plain and valid that right and duty may be, still a balance must be sought with
the equally compelling necessity that a proper respect be accorded and adequate protection
The situations envisaged and sought to be governed are self-evident, these being: assured, the fundamental rights of private property and free enterprise which are deemed
pillars of a free society such as ours, and to which all members of that society may without
1) that "(i)ll-gotten properties (were) amassed by the leaders and supporters of the exception lay claim.
previous regime"; 37
* * Democracy, as a way of life enshrined in the Constitution, embraces as its
a) more particularly, that ill-gotten wealth (was) accumulated by former President necessary components freedom of conscience, freedom of expression, and
Ferdinand E. Marcos, his immediate family, relatives, subordinates and close freedom in the pursuit of happiness. Along with these freedoms are included
associates, * * located in the Philippines or abroad, * * (and) business enterprises economic freedom and freedom of enterprise within reasonable bounds and under
49
proper control. * * Evincing much concern for the protection of property, the By the clear terms of the law, the power of the PCGG to sequester property claimed to be "ill-
Constitution distinctly recognizes the preferred position which real estate has gotten" means to place or cause to be placed under its possession or control said property,
occupied in law for ages. Property is bound up with every aspect of social life in a or any building or office wherein any such property and any records pertaining thereto may
democracy as democracy is conceived in the Constitution.The Constitution realizes be found, including "business enterprises and entities,"-for the purpose of preventing the
the indispensable role which property, owned in reasonable quantities and used destruction, concealment or dissipation of, and otherwise conserving and preserving, the
legitimately, plays in the stimulation to economic effort and the formation and same-until it can be determined, through appropriate judicial proceedings, whether the
growth of a solid social middle class that is said to be the bulwark of democracy property was in truth will- gotten," i.e., acquired through or as a result of improper or illegal
and the backbone of every progressive and happy country. 42 use of or the conversion of funds belonging to the Government or any of its branches,
instrumentalities, enterprises, banks or financial institutions, or by taking undue advantage
a. Need of Evidentiary Substantiation in Proper Suit of official position, authority relationship, connection or influence, resulting in unjust
enrichment of the ostensible owner and grave damage and prejudice to the State. 44 And
Consequently, the factual premises of the Executive Orders cannot simply be assumed. They this, too, is the sense in which the term is commonly understood in other jurisdictions. 45
will have to be duly established by adequate proof in each case, in a proper judicial
proceeding, so that the recovery of the ill-gotten wealth may be validly and properly b. "Freeze Order"
adjudged and consummated; although there are some who maintain that the fact-that an
immense fortune, and "vast resources of the government have been amassed by former A "freeze order" prohibits the person having possession or control of property alleged to
President Ferdinand E. Marcos, his immediate family, relatives, and close associates both constitute "ill-gotten wealth" "from transferring, conveying, encumbering or otherwise
here and abroad," and they have resorted to all sorts of clever schemes and manipulations to depleting or concealing such property, or from assisting or taking part in its transfer,
disguise and hide their illicit acquisitions-is within the realm of judicial notice, being of so encumbrance, concealment, or dissipation." 46 In other words, it commands the possessor to
extensive notoriety as to dispense with proof thereof, Be this as it may, the requirement of hold the property and conserve it subject to the orders and disposition of the authority
evidentiary substantiation has been expressly acknowledged, and the procedure to be decreeing such freezing. In this sense, it is akin to a garnishment by which the possessor or
followed explicitly laid down, in Executive Order No. 14. ostensible owner of property is enjoined not to deliver, transfer, or otherwise dispose of any
effects or credits in his possession or control, and thus becomes in a sense an involuntary
b. Need of Provisional Measures to Collect and Conserve Assets Pending Suits depositary thereof. 47

Nor may it be gainsaid that pending the institution of the suits for the recovery of such "ill- c. Provisional Takeover
gotten wealth" as the evidence at hand may reveal, there is an obvious and imperative need
for preliminary, provisional measures to prevent the concealment, disappearance, In providing for the remedy of "provisional takeover," the law acknowledges the apparent
destruction, dissipation, or loss of the assets and properties subject of the suits, or to restrain distinction between "ill gotten" "business enterprises and entities" (going concerns,
or foil acts that may render moot and academic, or effectively hamper, delay, or negate businesses in actual operation), generally, as to which the remedy of sequestration applies, it
efforts to recover the same. being necessarily inferred that the remedy entails no interference, or the least possible
interference with the actual management and operations thereof; and "business enterprises
7. Provisional Remedies Prescribed by Law which were taken over by the government government of the Marcos Administration or by
entities or persons close to him," in particular, as to which a "provisional takeover" is
To answer this need, the law has prescribed three (3) provisional remedies. These are: (1) authorized, "in the public interest or to prevent disposal or dissipation of the
sequestration; (2) freeze orders; and (3) provisional takeover. enterprises." 48 Such a "provisional takeover" imports something more than sequestration or
freezing, more than the placing of the business under physical possession and control, albeit
Sequestration and freezing are remedies applicable generally to unearthed instances of "ill- without or with the least possible interference with the management and carrying on of the
gotten wealth." The remedy of "provisional takeover" is peculiar to cases where "business business itself. In a "provisional takeover," what is taken into custody is not only the physical
enterprises and properties (were) taken over by the government of the Marcos assets of the business enterprise or entity, but the business operation as well. It is in fine the
Administration or by entities or persons close to former President Marcos." 43 assumption of control not only over things, but over operations or on- going activities. But, to
repeat, such a "provisional takeover" is allowed only as regards "business enterprises *
a. Sequestration * taken over by the government of the Marcos Administration or by entities or persons close
to former President Marcos."

d. No Divestment of Title Over Property Seized


50
It may perhaps be well at this point to stress once again the provisional, contingent character ratification of this Constitution, the corresponding judicial action or proceeding
of the remedies just described. Indeed the law plainly qualifies the remedy of take-over by shall be filed within six months from its ratification. For those issued after such
the adjective, "provisional." These remedies may be resorted to only for a particular ratification, the judicial action or proceeding shall be commenced within six
exigency: to prevent in the public interest the disappearance or dissipation of property or months from the issuance thereof.
business, and conserve it pending adjudgment in appropriate proceedings of the primary
issue of whether or not the acquisition of title or other right thereto by the apparent owner The sequestration or freeze order is deemed automatically lifted if no judicial
was attended by some vitiating anomaly. None of the remedies is meant to deprive the action or proceeding is commenced as herein provided. 52
owner or possessor of his title or any right to the property sequestered, frozen or taken over
and vest it in the sequestering agency, the Government or other person. This can be done f. Kinship to Attachment Receivership
only for the causes and by the processes laid down by law.
As thus described, sequestration, freezing and provisional takeover are akin to the
That this is the sense in which the power to sequester, freeze or provisionally take over is to provisional remedy of preliminary attachment, or receivership. 53 By attachment, a sheriff
be understood and exercised, the language of the executive orders in question leaves no seizes property of a defendant in a civil suit so that it may stand as security for the
doubt. Executive Order No. 1 declares that the sequestration of property the acquisition of satisfaction of any judgment that may be obtained, and not disposed of, or dissipated, or lost
which is suspect shall last "until the transactions leading to such acquisition * * can be intentionally or otherwise, pending the action. 54 By receivership, property, real or personal,
disposed of by the appropriate authorities." 49 Executive Order No. 2 declares that the assets which is subject of litigation, is placed in the possession and control of a receiver appointed
or properties therein mentioned shall remain frozen "pending the outcome of appropriate by the Court, who shall conserve it pending final determination of the title or right of
proceedings in the Philippines to determine whether any such assets or properties were possession over it. 55 All these remedies — sequestration, freezing, provisional, takeover,
acquired" by illegal means. Executive Order No. 14 makes clear that judicial proceedings are attachment and receivership — are provisional, temporary, designed for-particular
essential for the resolution of the basic issue of whether or not particular assets are "ill- exigencies, attended by no character of permanency or finality, and always subject to the
gotten," and resultant recovery thereof by the Government is warranted. control of the issuing court or agency.

e. State of Seizure Not To Be Indefinitely Maintained; The Constitutional g. Remedies, Non-Judicial


Command
Parenthetically, that writs of sequestration or freeze or takeover orders are not issued by a
There is thus no cause for the apprehension voiced by BASECO 50 that sequestration, freezing court is of no moment. The Solicitor General draws attention to the writ of distraint and levy
or provisional takeover is designed to be an end in itself, that it is the device through which which since 1936 the Commissioner of Internal Revenue has been by law authorized to issue
persons may be deprived of their property branded as "ill-gotten," that it is intended to bring against property of a delinquent taxpayer. 56 BASECO itself declares that it has not
about a permanent, rather than a passing, transitional state of affairs. That this is not so is manifested "a rigid insistence on sequestration as a purely judicial remedy * * (as it feels)
quite explicitly declared by the governing rules. that the law should not be ossified to a point that makes it insensitive to change." What it
insists on, what it pronounces to be its "unyielding position, is that any change in procedure,
Be this as it may, the 1987 Constitution should allay any lingering fears about the duration of or the institution of a new one, should conform to due process and the other prescriptions of
these provisional remedies. Section 26 of its Transitory Provisions, 51 lays down the relevant the Bill of Rights of the Constitution." 57 It is, to be sure, a proposition on which there can be
rule in plain terms, apart from extending ratification or confirmation (although not really no disagreement.
necessary) to the institution by presidential fiat of the remedy of sequestration and freeze
orders: h. Orders May Issue Ex Parte

SEC. 26. The authority to issue sequestration or freeze orders under Proclamation Like the remedy of preliminary attachment and receivership, as well as delivery of personal
No. 3 dated March 25, 1986 in relation to the recovery of ill-gotten wealth shag property in replevin suits, sequestration and provisional takeover writs may issue ex
remain operative for not more than eighteen months after the ratification of this parte. 58 And as in preliminary attachment, receivership, and delivery of personality, no
Constitution. However, in the national interest, as certified by the President, objection of any significance may be raised to the ex parte issuance of an order of
the Congress may extend said period. sequestration, freezing or takeover, given its fundamental character of temporariness or
conditionality; and taking account specially of the constitutionally expressed "mandate of the
A sequestration or freeze order shall be issued only upon showing of a prima people to recover ill-gotten properties amassed by the leaders and supporters of the
facie case. The order and the list of the sequestered or frozen properties shall previous regime and protect the interest of the people;" 59 as well as the obvious need to
forthwith be registered with the proper court. For orders issued before the avoid alerting suspected possessors of "ill-gotten wealth" and thereby cause that
51
disappearance or loss of property precisely sought to be prevented, and the fact, just as self- Parenthetically, even if the requirement for a prima facie showing of "ill- gotten wealth"
evident, that "any transfer, disposition, concealment or disappearance of said assets and were not expressly imposed by some rule or regulation as a condition to warrant the
properties would frustrate, obstruct or hamper the efforts of the Government" at the just sequestration or freezing of property contemplated in the executive orders in question, it
recovery thereof. 60 would nevertheless be exigible in this jurisdiction in which the Rule of Law prevails and
official acts which are devoid of rational basis in fact or law, or are whimsical and capricious,
8. Requisites for Validity are condemned and struck down. 66

What is indispensable is that, again as in the case of attachment and receivership, there exist 9. Constitutional Sanction of Remedies
a prima facie factual foundation, at least, for the sequestration, freeze or takeover order, and
adequate and fair opportunity to contest it and endeavor to cause its negation or If any doubt should still persist in the face of the foregoing considerations as to the validity
nullification. 61 and propriety of sequestration, freeze and takeover orders, it should be dispelled by the fact
that these particular remedies and the authority of the PCGG to issue them have received
Both are assured under the executive orders in question and the rules and regulations constitutional approbation and sanction. As already mentioned, the Provisional or "Freedom"
promulgated by the PCGG. Constitution recognizes the power and duty of the President to enact "measures to achieve
the mandate of the people to * * * (recover ill- gotten properties amassed by the leaders and
a. Prima Facie Evidence as Basis for Orders supporters of the previous regime and protect the interest of the people through orders of
sequestration or freezing of assets or accounts." And as also already adverted to, Section 26,
Executive Order No. 14 enjoins that there be "due regard to the requirements of fairness and Article XVIII of the 1987 Constitution 67 treats of, and ratifies the "authority to issue
due process." 62Executive Order No. 2 declares that with respect to claims on allegedly "ill- sequestration or freeze orders under Proclamation No. 3 dated March 25, 1986."
gotten" assets and properties, "it is the position of the new democratic government that
President Marcos * * (and other parties affected) be afforded fair opportunity to contest The institution of these provisional remedies is also premised upon the State's inherent
these claims before appropriate Philippine authorities." 63 Section 7 of the Commission's police power, regarded, as t lie power of promoting the public welfare by restraining and
Rules and Regulations provides that sequestration or freeze (and takeover) orders issue upon regulating the use of liberty and property," 68 and as "the most essential, insistent and
the authority of at least two commissioners, based on the affirmation or complaint of an illimitable of powers * * in the promotion of general welfare and the public interest," 69and
interested party, or motu proprio when the Commission has reasonable grounds to believe said to be co-extensive with self-protection and * * not inaptly termed (also) the'law of
that the issuance thereof is warranted. 64 A similar requirement is now found in Section 26, overruling necessity." "70
Art. XVIII of the 1987 Constitution, which requires that a "sequestration or freeze order shall
be issued only upon showing of a prima facie case." 65 10. PCGG not a "Judge"; General Functions

b. Opportunity to Contest It should also by now be reasonably evident from what has thus far been said that the PCGG
is not, and was never intended to act as, a judge. Its general function is to conduct
And Sections 5 and 6 of the same Rules and Regulations lay down the procedure by which a investigations in order to collect evidence establishing instances of "ill-gotten wealth;" issue
party may seek to set aside a writ of sequestration or freeze order, viz: sequestration, and such orders as may be warranted by the evidence thus collected and as
may be necessary to preserve and conserve the assets of which it takes custody and control
SECTION 5. Who may contend.-The person against whom a writ of sequestration or and prevent their disappearance, loss or dissipation; and eventually file and prosecute in the
freeze or hold order is directed may request the lifting thereof in writing, either proper court of competent jurisdiction all cases investigated by it as may be warranted by its
personally or through counsel within five (5) days from receipt of the writ or order, findings. It does not try and decide, or hear and determine, or adjudicate with any character
or in the case of a hold order, from date of knowledge thereof. of finality or compulsion, cases involving the essential issue of whether or not property
should be forfeited and transferred to the State because "ill-gotten" within the meaning of
SECTION 6. Procedure for review of writ or order.-After due hearing or motu the Constitution and the executive orders. This function is reserved to the designated court,
proprio for good cause shown, the Commission may lift the writ or order in this case, the Sandiganbayan. 71 There can therefore be no serious regard accorded to the
unconditionally or subject to such conditions as it may deem necessary, taking into accusation, leveled by BASECO, 72that the PCGG plays the perfidious role of prosecutor and
consideration the evidence and the circumstance of the case. The resolution of the judge at the same time.
commission may be appealed by the party concerned to the Office of the President
of the Philippines within fifteen (15) days from receipt thereof. 11. Facts Preclude Grant of Relief to Petitioner

52
Upon these premises and reasoned conclusions, and upon the facts disclosed by the record,
hereafter to be discussed, the petition cannot succeed. The writs of certiorari and prohibition
5. Jose Francisco 128 shares
prayed for will not be issued.

The facts show that the corporation known as BASECO was owned or controlled by President
6. Manuel S. Mendoza 96 shares
Marcos "during his administration, through nominees, by taking undue advantage of his
public office and/or using his powers, authority, or influence, " and that it was by and
through the same means, that BASECO had taken over the business and/or assets of the
7. Anthony P. Lee 1,248 shares
National Shipyard and Engineering Co., Inc., and other government-owned or controlled
entities.
8. Hilario M. Ruiz 32 shares
12. Organization and Stock Distribution of BASECO

BASECO describes itself in its petition as "a shiprepair and shipbuilding company * *
9. Constante L. Fariñas 8 shares
incorporated as a domestic private corporation * * (on Aug. 30, 1972) by a consortium of
Filipino shipowners and shipping executives. Its main office is at Engineer Island, Port Area,
Manila, where its Engineer Island Shipyard is housed, and its main shipyard is located at
10. Fidelity Management, Inc. 65,882 shares
Mariveles Bataan." 73 Its Articles of Incorporation disclose that its authorized capital stock is
P60,000,000.00 divided into 60,000 shares, of which 12,000 shares with a value of
P12,000,000.00 have been subscribed, and on said subscription, the aggregate sum of
11. Trident Management 7,412 shares
P3,035,000.00 has been paid by the incorporators. 74The same articles Identify the
incorporators, numbering fifteen (15), as follows: (1) Jose A. Rojas, (2) Anthony P. Lee, (3)
Eduardo T. Marcelo, (4) Jose P. Fernandez, (5) Generoso Tanseco, (6) Emilio T. Yap, (7)
Antonio M. Ezpeleta, (8) Zacarias Amante, (9) Severino de la Cruz, (10) Jose Francisco, (11) 12. United Phil. Lines 1,240 shares
Dioscoro Papa, (12) Octavio Posadas, (13) Manuel S. Mendoza, (14) Magiliw Torres, and (15)
Rodolfo Torres.
13. Renato M. Tanseco 8 shares
By 1986, however, of these fifteen (15) incorporators, six (6) had ceased to be stockholders,
namely: (1) Generoso Tanseco, (2) Antonio Ezpeleta, (3) Zacarias Amante, (4) Octavio
Posadas, (5) Magiliw Torres, and (6) Rodolfo Torres. As of this year, 1986, there were twenty 14. Fidel Ventura 8 shares
(20) stockholders listed in BASECO's Stock and Transfer Book. 75Their names and the number
of shares respectively held by them are as follows:
15. Metro Bay Drydock 136,370 shares

1. Jose A. Rojas 1,248 shares


16. Manuel Jacela 1 share

2. Severino G. de la Cruz 1,248 shares


17. Jonathan G. Lu 1 share

3. Emilio T. Yap 2,508 shares


18. Jose J. Tanchanco 1 share

4. Jose Fernandez 1,248 shares


19. Dioscoro Papa 128 shares

53
Some nine months afterwards, or on July 15, 1975, to be precise, BASECO, again with the
intervention of President Marcos, acquired ownership of the rest of the assets of NASSCO
20. Edward T. Marcelo 4 shares
which had not been included in the first two (2) purchase documents. This was accomplished
by a deed entitled "Contract of Purchase and Sale," 79 which, like the Memorandum of
Agreement dated October 9, 1973 supra also bore at the upper right-hand corner of its first
TOTAL 218,819 shares. page, the handwritten notation of President Marcos reading, "APPROVED, July 29, 1973," and
underneath it, his usual full signature. Transferred to BASECO were NASSCO's "ownership
13 Acquisition of NASSCO by BASECO and all its titles, rights and interests over all equipment and facilities including structures,
buildings, shops, quarters, houses, plants and expendable or semi-expendable assets, located
Barely six months after its incorporation, BASECO acquired from National Shipyard & Steel at the Engineer Island, known as the Engineer Island Shops, including all the equipment of
Corporation, or NASSCO, a government-owned or controlled corporation, the latter's the Bataan National Shipyards (BNS) which were excluded from the sale of NBS to BASECO
shipyard at Mariveles, Bataan, known as the Bataan National Shipyard (BNS), and — except but retained by BASECO and all other selected equipment and machineries of NASSCO at J.
for NASSCO's Engineer Island Shops and certain equipment of the BNS, consigned for future Panganiban Smelting Plant." In the same deed, NASSCO committed itself to cooperate with
negotiation — all its structures, buildings, shops, quarters, houses, plants, equipment and BASECO for the acquisition from the National Government or other appropriate Government
facilities, in stock or in transit. This it did in virtue of a "Contract of Purchase and Sale with entity of Engineer Island. Consideration for the sale was set at P5,000,000.00; a down
Chattel Mortgage" executed on February 13, 1973. The price was P52,000,000.00. As partial payment of P1,000,000.00 appears to have been made, and the balance was stipulated to be
payment thereof, BASECO delivered to NASSCO a cash bond of P11,400,000.00, convertible paid at 7% interest per annum in equal semi annual installments over a term of nine (9)
into cash within twenty-four (24) hours from completion of the inventory undertaken years, to commence after a grace period of two (2) years. Mr. Arturo Pacificador again signed
pursuant to the contract. The balance of P41,600,000.00, with interest at seven percent (7%) for NASSCO, together with the general manager, Mr. David R. Ines.
per annum, compounded semi-annually, was stipulated to be paid in equal semi-annual
installments over a term of nine (9) years, payment to commence after a grace period of two 17. Loans Obtained
(2) years from date of turnover of the shipyard to BASECO. 76
It further appears that on May 27, 1975 BASECO obtained a loan from the NDC, taken from
14. Subsequent Reduction of Price; Intervention of Marcos "the last available Japanese war damage fund of $19,000,000.00," to pay for "Japanese made
heavy equipment (brand new)." 80 On September 3, 1975, it got another loan also from the
Unaccountably, the price of P52,000,000.00 was reduced by more than one-half, to NDC in the amount of P30,000,000.00 (id.). And on January 28, 1976, it got still another loan,
P24,311,550.00, about eight (8) months later. A document to this effect was executed on this time from the GSIS, in the sum of P12,400,000.00. 81 The claim has been made that not a
October 9, 1973, entitled "Memorandum Agreement," and was signed for NASSCO by Arturo single centavo has been paid on these loans. 82
Pacificador, as Presiding Officer of the Board of Directors, and David R. Ines, as General
Manager. 77 This agreement bore, at the top right corner of the first page, the word 18. Reports to President Marcos
"APPROVED" in the handwriting of President Marcos, followed by his usual full signature. The
document recited that a down payment of P5,862,310.00 had been made by BASECO, and In September, 1977, two (2) reports were submitted to President Marcos regarding BASECO.
the balance of P19,449,240.00 was payable in equal semi-annual installments over nine (9) The first was contained in a letter dated September 5, 1977 of Hilario M. Ruiz, BASECO
years after a grace period of two (2) years, with interest at 7% per annum. president. 83 The second was embodied in a confidential memorandum dated September 16,
1977 of Capt. A.T. Romualdez. 84 They further disclose the fine hand of Marcos in the affairs
15. Acquisition of 300 Hectares from Export Processing Zone Authority of BASECO, and that of a Romualdez, a relative by affinity.

On October 1, 1974, BASECO acquired three hundred (300) hectares of land in Mariveles a. BASECO President's Report
from the Export Processing Zone Authority for the price of P10,047,940.00 of which, as set
out in the document of sale, P2,000.000.00 was paid upon its execution, and the balance In his letter of September 5, 1977, BASECO President Ruiz reported to Marcos that there had
stipulated to be payable in installments. 78 been "no orders or demands for ship construction" for some time and expressed the fear
that if that state of affairs persisted, BASECO would not be able to pay its debts to the
16. Acquisition of Other Assets of NASSCO; Intervention of Marcos Government, which at the time stood at the not inconsiderable amount of
P165,854,000.00. 85 He suggested that, to "save the situation," there be a "spin-off (of their)
shipbuilding activities which shall be handled exclusively by an entirely new corporation to be
created;" and towards this end, he informed Marcos that BASECO was —
54
* * inviting NDC and LUSTEVECO to participate by converting the NDC shipbuilding 3. Deed of Sales, wherein NASSCO sold to BASECO four (4) parcels of land in
loan to BASECO amounting to P341.165M and assuming and converting a portion "Engineer Island", Port Area, Manila;
of BASECO's shipbuilding loans from REPACOM amounting to P52.2M or a total of
P83.365M as NDC's equity contribution in the new corporation. LUSTEVECO will 4. Transfer Certificate of Title No. 124822 in the name of BASECO, covering
participate by absorbing and converting a portion of the REPACOM loan of Bay "Engineer Island";
Shipyard and Drydock, Inc., amounting to P32.538M.86
5. Contract dated October 9, 1973, between NASSCO and BASECO re-structure and
b. Romualdez' Report equipment at Mariveles, Bataan;

Capt. A.T. Romualdez' report to the President was submitted eleven (11) days later. It 6. Contract dated July 16, 1975, between NASSCO and BASECO re-structure and
opened with the following caption: equipment at Engineer Island, Port Area Manila;

MEMORANDUM: 7. Contract dated October 1, 1974, between EPZA and BASECO re 300 hectares of
land at Mariveles, Bataan;
FOR : The President
8. List of BASECO's fixed assets;
SUBJECT: An Evaluation and Re-assessment of a Performance of a Mission
9. Loan Agreement dated September 3, 1975, BASECO's loan from NDC of
FROM: Capt. A.T. Romualdez. P30,000,000.00;

Like Ruiz, Romualdez wrote that BASECO faced great difficulties in meeting its loan 10. BASECO-REPACOM Agreement dated May 27, 1975;
obligations due chiefly to the fact that "orders to build ships as expected * * did not
materialize." 11. GSIS loan to BASECO dated January 28, 1976 of P12,400,000.00 for the housing
facilities for BASECO's rank-and-file employees. 90
He advised that five stockholders had "waived and/or assigned their holdings inblank," these
being: (1) Jose A. Rojas, (2) Severino de la Cruz, (3) Rodolfo Torres, (4) Magiliw Torres, and (5) Capt. Romualdez also recommended that BASECO's loans be restructured "until such period
Anthony P. Lee. Pointing out that "Mr. Magiliw Torres * * is already dead and Mr. Jose A. when BASECO will have enough orders for ships in order for the company to meet loan
Rojas had a major heart attack," he made the following quite revealing, and it may be added, obligations," and that —
quite cynical and indurate recommendation, to wit:
An LOI may be issued to government agencies using floating equipment,
* * (that) their replacements (be effected) so we can register their names in the that a linkage scheme be applied to a certain percent of BASECO's net
stock book prior to the implementation of your instructions to pass a board profit as part of BASECO's amortization payments to make it justifiable
resolution to legalize the transfers under SEC regulations; for you, Sir. 91

2. By getting their replacements, the families cannot question us later on; and It is noteworthy that Capt. A.T. Romualdez does not appear to be a stockholder or officer of
BASECO, yet he has presented a report on BASECO to President Marcos, and his report
3. We will owe no further favors from them. 87 demonstrates intimate familiarity with the firm's affairs and problems.

He also transmitted to Marcos, together with the report, the following documents: 88 19. Marcos' Response to Reports

1. Stock certificates indorsed and assigned in blank with assignments and President Marcos lost no time in acting on his subordinates' recommendations, particularly
waivers; 89 as regards the "spin-off" and the "linkage scheme" relative to "BASECO's amortization
payments."
2. The articles of incorporation, the amended articles, and the by-laws of BASECO;
a. Instructions re "Spin-Off"

55
Under date of September 28, 1977, he addressed a Memorandum to Secretary Geronimo participation in a shipbuilding corporation to be established in partnership with the
Velasco of the Philippine National Oil Company and Chairman Constante Fariñas of the private sector.
National Development Company, directing them "to participate in the formation of a new
corporation resulting from the spin-off of the shipbuilding component of BASECO along the xxx xxx xxx
following guidelines:
And so, through a simple letter of instruction and memorandum, BASECO's loan
a. Equity participation of government shall be through LUSTEVECO and NDC in the obligation to NDC and REPACOM * * in the total amount of P83.365M and BSD's
amount of P115,903,000 consisting of the following obligations of BASECO which REPACOM loan of P32.438M were wiped out and converted into non-voting
are hereby authorized to be converted to equity of the said new corporation, to wit: preferred shares. 95

1. NDC P83,865,000 (P31.165M loan & P52.2M Reparation) 20. Evidence of Marcos'

2. LUSTEVECO P32,538,000 (Reparation) Ownership of BASECO

b. Equity participation of government shall be in the form of non- voting shares. It cannot therefore be gainsaid that, in the context of the proceedings at bar, the actuality of
the control by President Marcos of BASECO has been sufficiently shown.
For immediate compliance. 92
Other evidence submitted to the Court by the Solicitor General proves that President Marcos
Mr. Marcos' guidelines were promptly complied with by his subordinates. Twenty-two (22) not only exercised control over BASECO, but also that he actually owns well nigh one hundred
days after receiving their president's memorandum, Messrs. Hilario M. Ruiz, Constante L. percent of its outstanding stock.
Fariñas and Geronimo Z. Velasco, in representation of their respective corporations,
executed a PRE-INCORPORATION AGREEMENT dated October 20, 1977. 93 In it, they It will be recalled that according to petitioner- itself, as of April 23, 1986, there were 218,819
undertook to form a shipbuilding corporation to be known as "PHIL-ASIA SHIPBUILDING shares of stock outstanding, ostensibly owned by twenty (20) stockholders. 96 Four of these
CORPORATION," to bring to realization their president's instructions. It would seem that the twenty are juridical persons: (1) Metro Bay Drydock, recorded as holding 136,370 shares;
new corporation ultimately formed was actually named "Philippine Dockyard Corporation (2) Fidelity Management, Inc., 65,882 shares; (3) Trident Management, 7,412 shares; and (4)
(PDC)." 94 United Phil. Lines, 1,240 shares. The first three corporations, among themselves, own an
aggregate of 209,664 shares of BASECO stock, or 95.82% of the outstanding stock.
b. Letter of Instructions No. 670
Now, the Solicitor General has drawn the Court's attention to the intriguing circumstance
Mr. Marcos did not forget Capt. Romualdez' recommendation for a letter of instructions. On that found in Malacanang shortly after the sudden flight of President Marcos, were
February 14, 1978, he issued Letter of Instructions No. 670 addressed to the Reparations certificates corresponding to more than ninety-five percent (95%) of all the outstanding
Commission REPACOM the Philippine National Oil Company (PNOC), the Luzon Stevedoring shares of stock of BASECO, endorsed in blank, together with deeds of assignment of
Company (LUSTEVECO), and the National Development Company (NDC). What is commanded practically all the outstanding shares of stock of the three (3) corporations above mentioned
therein is summarized by the Solicitor General, with pithy and not inaccurate observations as (which hold 95.82% of all BASECO stock), signed by the owners thereof although not
to the effects thereof (in italics), as follows: notarized. 97

* * 1) the shipbuilding equipment procured by BASECO through reparations be More specifically, found in Malacanang (and now in the custody of the PCGG) were:
transferred to NDC subject to reimbursement by NDC to BASECO (of) the amount
of s allegedly representing the handling and incidental expenses incurred by 1) the deeds of assignment of all 600 outstanding shares of Fidelity Management
BASECO in the installation of said equipment (so instead of NDC getting paid on its Inc. — which supposedly owns as aforesaid 65,882 shares of BASECO stock;
loan to BASECO, it was made to pay BASECO instead the amount of P18.285M); 2)
the shipbuilding equipment procured from reparations through EPZA, now in the 2) the deeds of assignment of 2,499,995 of the 2,500,000 outstanding shares of
possession of BASECO and BSDI (Bay Shipyard & Drydocking, Inc.) be transferred to Metro Bay Drydock Corporation — which allegedly owns 136,370 shares of BASECO
LUSTEVECO through PNOC; and 3) the shipbuilding equipment (thus) transferred be stock;
invested by LUSTEVECO, acting through PNOC and NDC, as the government's equity

56
3) the deeds of assignment of 800 outstanding shares of Trident Management Co., third parties in view of last national emergency." 108 He has conveniently omitted, nor has
Inc. — which allegedly owns 7,412 shares of BASECO stock, assigned in he offered to give the details of the transactions adverted to by him, or to explain why he
blank; 98 and had not impressed on the supposed stockholders the primordial importance of convincing
this Court of their present custody of the originals of the stock, or if he had done so, why the
4) stock certificates corresponding to 207,725 out of the 218,819 outstanding stockholders are unwilling to agree to some sort of arrangement so that the originals of their
shares of BASECO stock; that is, all but 5 % — all endorsed in blank. 99 certificates might at the very least be exhibited to the Court. Under the circumstances, the
Court can only conclude that he could not get the originals from the stockholders for the
While the petitioner's counsel was quick to dispute this asserted fact, assuring this Court that simple reason that, as the Solicitor General maintains, said stockholders in truth no longer
the BASECO stockholders were still in possession of their respective stock certificates and have them in their possession, these having already been assigned in blank to then President
had "never endorsed * * them in blank or to anyone else," 100 that denial is exposed by his Marcos.
own prior and subsequent recorded statements as a mere gesture of defiance rather than a
verifiable factual declaration. 21. Facts Justify Issuance of Sequestration and Takeover Orders

By resolution dated September 25, 1986, this Court granted BASECO's counsel a period of 10 In the light of the affirmative showing by the Government that, prima facie at least, the
days "to SUBMIT, as undertaken by him, * * the certificates of stock issued to the stockholders and directors of BASECO as of April, 1986 109 were mere "dummies," nominees
stockholders of * * BASECO as of April 23, 1986, as listed in Annex 'P' of the or alter egos of President Marcos; at any rate, that they are no longer owners of any shares
petition.' 101 Counsel thereafter moved for extension; and in his motion dated October 2, of stock in the corporation, the conclusion cannot be avoided that said stockholders and
1986, he declared inter alia that "said certificates of stock are in the possession of third directors have no basis and no standing whatever to cause the filing and prosecution of the
parties, among whom being the respondents themselves * * and petitioner is still instant proceeding; and to grant relief to BASECO, as prayed for in the petition, would in
endeavoring to secure copies thereof from them." 102 On the same day he filed another effect be to restore the assets, properties and business sequestered and taken over by the
motion praying that he be allowed "to secure copies of the Certificates of Stock in the name PCGG to persons who are "dummies," nominees or alter egos of the former president.
of Metro Bay Drydock, Inc., and of all other Certificates, of Stock of petitioner's stockholders
in possession of respondents." 103 From the standpoint of the PCGG, the facts herein stated at some length do indeed show
that the private corporation known as BASECO was "owned or controlled by former
In a Manifestation dated October 10, 1986,, 104 the Solicitor General not unreasonably President Ferdinand E. Marcos * * during his administration, * * through nominees, by taking
argued that counsel's aforestated motion to secure copies of the stock certificates "confirms advantage of * * (his) public office and/or using * * (his) powers, authority, influence * *,"
the fact that stockholders of petitioner corporation are not in possession of * * (their) and that NASSCO and other property of the government had been taken over by BASECO;
certificates of stock," and the reason, according to him, was "that 95% of said shares * * have and the situation justified the sequestration as well as the provisional takeover of the
been endorsed in blank and found in Malacañang after the former President and his family corporation in the public interest, in accordance with the terms of Executive Orders No. 1
fled the country." To this manifestation BASECO's counsel replied on November 5, 1986, as and 2, pending the filing of the requisite actions with the Sandiganbayan to cause divestment
already mentioned, Stubbornly insisting that the firm's stockholders had not really assigned of title thereto from Marcos, and its adjudication in favor of the Republic pursuant to
their stock. 105 Executive Order No. 14.

In view of the parties' conflicting declarations, this Court resolved on November 27, 1986 As already earlier stated, this Court agrees that this assessment of the facts is correct;
among other things "to require * * the petitioner * * to deposit upon proper receipt with accordingly, it sustains the acts of sequestration and takeover by the PCGG as being in accord
Clerk of Court Juanito Ranjo the originals of the stock certificates alleged to be in its with the law, and, in view of what has thus far been set out in this opinion, pronounces to be
possession or accessible to it, mentioned and described in Annex 'P' of its petition, (and other without merit the theory that said acts, and the executive orders pursuant to which they
pleadings) * * within ten (10) days from notice." 106 In a motion filed on December 5, were done, are fatally defective in not according to the parties affected prior notice and
1986, 107 BASECO's counsel made the statement, quite surprising in the premises, that "it hearing, or an adequate remedy to impugn, set aside or otherwise obtain relief therefrom, or
will negotiate with the owners (of the BASECO stock in question) to allow petitioner to that the PCGG had acted as prosecutor and judge at the same time.
borrow from them, if available, the certificates referred to" but that "it needs a more
sufficient time therefor" (sic). BASECO's counsel however eventually had to confess inability 22. Executive Orders Not a Bill of Attainder
to produce the originals of the stock certificates, putting up the feeble excuse that while he
had "requested the stockholders to allow * * (him) to borrow said certificates, * * some of * Neither will this Court sustain the theory that the executive orders in question are a bill of
* (them) claimed that they had delivered the certificates to third parties by way of pledge attainder. 110 "A bill of attainder is a legislative act which inflicts punishment without judicial
and/or to secure performance of obligations, while others allegedly have entrusted them to
57
trial." 111 "Its essence is the substitution of a legislative for a judicial determination of * * The corporation is a creature of the state. It is presumed to be incorporated for
guilt." 112 the benefit of the public. It received certain special privileges and franchises, and
holds them subject to the laws of the state and the limitations of its charter. Its
In the first place, nothing in the executive orders can be reasonably construed as a powers are limited by law. It can make no contract not authorized by its charter. Its
determination or declaration of guilt. On the contrary, the executive orders, inclusive of rights to act as a corporation are only preserved to it so long as it obeys the laws of
Executive Order No. 14, make it perfectly clear that any judgment of guilt in the amassing or its creation. There is a reserve right in the legislature to investigate its contracts
acquisition of "ill-gotten wealth" is to be handed down by a judicial tribunal, in this case, and find out whether it has exceeded its powers. It would be a strange anomaly to
the Sandiganbayan, upon complaint filed and prosecuted by the PCGG. In the second place, hold that a state, having chartered a corporation to make use of certain franchises,
no punishment is inflicted by the executive orders, as the merest glance at their provisions could not, in the exercise of sovereignty, inquire how these franchises had been
will immediately make apparent. In no sense, therefore, may the executive orders be employed, and whether they had been abused, and demand the production of the
regarded as a bill of attainder. corporate books and papers for that purpose. The defense amounts to this, that an
officer of the corporation which is charged with a criminal violation of the statute
23. No Violation of Right against Self-Incrimination and Unreasonable Searches and Seizures may plead the criminality of such corporation as a refusal to produce its books. To
state this proposition is to answer it. While an individual may lawfully refuse to
BASECO also contends that its right against self incrimination and unreasonable searches and answer incriminating questions unless protected by an immunity statute, it does not
seizures had been transgressed by the Order of April 18, 1986 which required it "to produce follow that a corporation, vested with special privileges and franchises may refuse
corporate records from 1973 to 1986 under pain of contempt of the Commission if it fails to to show its hand when charged with an abuse of such privileges. (Wilson v. United
do so." The order was issued upon the authority of Section 3 (e) of Executive Order No. 1, States, 55 Law Ed., 771, 780 [emphasis, the Solicitor General's])
treating of the PCGG's power to "issue subpoenas requiring * * the production of such books,
papers, contracts, records, statements of accounts and other documents as may be material At any rate, Executive Order No. 14-A, amending Section 4 of Executive Order No. 14 assures
to the investigation conducted by the Commission, " and paragraph (3), Executive Order No. protection to individuals required to produce evidence before the PCGG against any possible
2 dealing with its power to "require all persons in the Philippines holding * * (alleged "ill- violation of his right against self-incrimination. It gives them immunity from prosecution on
gotten") assets or properties, whether located in the Philippines or abroad, in their names as the basis of testimony or information he is compelled to present. As amended, said Section 4
nominees, agents or trustees, to make full disclosure of the same * *." The contention lacks now provides that —
merit.
xxx xxx xxx
It is elementary that the right against self-incrimination has no application to juridical
persons. 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
While an individual may lawfully refuse to answer incriminating questions unless the order (or any information directly or indirectly derived from such testimony, or
protected by an immunity statute, it does not follow that a corporation, vested other information) may be used against the witness in any criminal case, except a
with special privileges and franchises, may refuse to show its hand when charged prosecution for perjury, giving a false statement, or otherwise failing to comply
with an abuse ofsuchprivileges * * 113 with the order.

Relevant jurisprudence is also cited by the Solicitor General. 114 The constitutional safeguard against unreasonable searches and seizures finds no application
to the case at bar either. There has been no search undertaken by any agent or
* * corporations are not entitled to all of the constitutional protections which representative of the PCGG, and of course no seizure on the occasion thereof.
private individuals have. * * They are not at all within the privilege against self-
incrimination, although this court more than once has said that the privilege runs 24. Scope and Extent of Powers of the PCGG
very closely with the 4th Amendment's Search and Seizure provisions. It is also
settled that an officer of the company cannot refuse to produce its records in its One other question remains to be disposed of, that respecting the scope and extent of the
possession upon the plea that they will either incriminate him or may incriminate powers that may be wielded by the PCGG with regard to the properties or businesses placed
it." (Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186; emphasis, the Solicitor under sequestration or provisionally taken over. Obviously, it is not a question to which an
General's). answer can be easily given, much less one which will suffice for every conceivable situation.

a. PCGG May Not Exercise Acts of Ownership


58
One thing is certain, and should be stated at the outset: the PCGG cannot exercise acts of There should be no hasty, indiscriminate, unreasoned replacement or substitution of
dominion over property sequestered, frozen or provisionally taken over. AS already earlier management officials or change of policies, particularly in respect of viable establishments. In
stressed with no little insistence, the act of sequestration; freezing or provisional takeover of fact, such a replacement or substitution should be avoided if at all possible, and undertaken
property does not import or bring about a divestment of title over said property; does not only when justified by demonstrably tenable grounds and in line with the stated objectives of
make the PCGG the owner thereof. In relation to the property sequestered, frozen or the PCGG. And it goes without saying that where replacement of management officers may
provisionally taken over, the PCGG is a conservator, not an owner. Therefore, it can not be called for, the greatest prudence, circumspection, care and attention - should accompany
perform acts of strict ownership; and this is specially true in the situations contemplated by that undertaking to the end that truly competent, experienced and honest managers may be
the sequestration rules where, unlike cases of receivership, for example, no court exercises recruited. There should be no role to be played in this area by rank amateurs, no matter how
effective supervision or can upon due application and hearing, grant authority for the wen meaning. The road to hell, it has been said, is paved with good intentions. The business
performance of acts of dominion. is not to be experimented or played around with, not run into the ground, not driven to
bankruptcy, not fleeced, not ruined. Sight should never be lost sight of the ultimate objective
Equally evident is that the resort to the provisional remedies in question should entail the of the whole exercise, which is to turn over the business to the Republic, once judicially
least possible interference with business operations or activities so that, in the event that the established to be "ill-gotten." Reason dictates that it is only under these conditions and
accusation of the business enterprise being "ill gotten" be not proven, it may be returned to circumstances that the supervision, administration and control of business enterprises
its rightful owner as far as possible in the same condition as it was at the time of provisionally taken over may legitimately be exercised.
sequestration.
d. Voting of Sequestered Stock; Conditions Therefor
b. PCGG Has Only Powers of Administration
So, too, it is within the parameters of these conditions and circumstances that the PCGG may
The PCGG may thus exercise only powers of administration over the property or business properly exercise the prerogative to vote sequestered stock of corporations, granted to it by
sequestered or provisionally taken over, much like a court-appointed receiver, 115 such as to the President of the Philippines through a Memorandum dated June 26, 1986. That
bring and defend actions in its own name; receive rents; collect debts due; pay outstanding Memorandum authorizes the PCGG, "pending the outcome of proceedings to determine the
debts; and generally do such other acts and things as may be necessary to fulfill its mission as ownership of * * (sequestered) shares of stock," "to vote such shares of stock as it may have
conservator and administrator. In this context, it may in addition enjoin or restrain any actual sequestered in corporations at all stockholders' meetings called for the election of directors,
or threatened commission of acts by any person or entity that may render moot and declaration of dividends, amendment of the Articles of Incorporation, etc." The
academic, or frustrate or otherwise make ineffectual its efforts to carry out its task; punish Memorandum should be construed in such a manner as to be consistent with, and not
for direct or indirect contempt in accordance with the Rules of Court; and seek and secure contradictory of the Executive Orders earlier promulgated on the same matter. There should
the assistance of any office, agency or instrumentality of the government. 116 In the case of be no exercise of the right to vote simply because the right exists, or because the stocks
sequestered businesses generally (i.e., going concerns, businesses in current operation), as in sequestered constitute the controlling or a substantial part of the corporate voting power.
the case of sequestered objects, its essential role, as already discussed, is that of The stock is not to be voted to replace directors, or revise the articles or by-laws, or
conservator, caretaker, "watchdog" or overseer. It is not that of manager, or innovator, much otherwise bring about substantial changes in policy, program or practice of the corporation
less an owner. except for demonstrably weighty and defensible grounds, and always in the context of the
stated purposes of sequestration or provisional takeover, i.e., to prevent the dispersion or
c. Powers over Business Enterprises Taken Over by Marcos or Entities or undue disposal of the corporate assets. Directors are not to be voted out simply because the
Persons Close to him; Limitations Thereon power to do so exists. Substitution of directors is not to be done without reason or rhyme,
should indeed be shunned if at an possible, and undertaken only when essential to prevent
Now, in the special instance of a business enterprise shown by evidence to have been "taken disappearance or wastage of corporate property, and always under such circumstances as
over by the government of the Marcos Administration or by entities or persons close to assure that the replacements are truly possessed of competence, experience and probity.
former President Marcos," 117 the PCGG is given power and authority, as already adverted
to, to "provisionally take (it) over in the public interest or to prevent * * (its) disposal or In the case at bar, there was adequate justification to vote the incumbent directors out of
dissipation;" and since the term is obviously employed in reference to going concerns, or office and elect others in their stead because the evidence showed prima facie that the
business enterprises in operation, something more than mere physical custody is connoted; former were just tools of President Marcos and were no longer owners of any stock in the
the PCGG may in this case exercise some measure of control in the operation, running, or firm, if they ever were at all. This is why, in its Resolution of October 28, 1986; 118 this Court
management of the business itself. But even in this special situation, the intrusion into declared that —
management should be restricted to the minimum degree necessary to accomplish the
legislative will, which is "to prevent the disposal or dissipation" of the business enterprise.
59
Petitioner has failed to make out a case of grave abuse or excess of jurisdiction in FELIX SAMSON, Judge of the Second Judicial District, and FRANCISCO JOSE, Provincial Fiscal
respondents' calling and holding of a stockholders' meeting for the election of of Isabela,respondents.
directors as authorized by the Memorandum of the President * * (to the PCGG)
dated June 26, 1986, particularly, where as in this case, the government can, Gregorio P. Formoso and Vicente Formoso for petitioner.
through its designated directors, properly exercise control and management over The respondents in their own behalf.
what appear to be properties and assets owned and belonging to the government
itself and over which the persons who appear in this case on behalf of BASECO ROMUALDEZ, J.:
have failed to show any right or even any shareholding in said corporation.
This is a petition for a writ of prohibition, wherein the petitioner complains that the
It must however be emphasized that the conduct of the PCGG nominees in the BASECO respondent judge ordered him to appear before the provincial fiscal to take dictation in his
Board in the management of the company's affairs should henceforth be guided and own handwriting from the latter.
governed by the norms herein laid down. They should never for a moment allow themselves
to forget that they are conservators, not owners of the business; they are fiduciaries, The order was given upon petition of said fiscal for the purpose of comparing the petitioner's
trustees, of whom the highest degree of diligence and rectitude is, in the premises, required. handwriting and determining whether or not it is he who wrote certain documents supposed
to be falsified.
25. No Sufficient Showing of Other Irregularities
There is no question as to the facts alleged in the complaint filed in these proceedings; but
As to the other irregularities complained of by BASECO, i.e., the cancellation or revision, and the respondents contend that the petitioner is not entitled to the remedy applied for,
the execution of certain contracts, inclusive of the termination of the employment of some inasmuch as the order prayed for by the provincial fiscal and later granted by the court
of its executives, 119 this Court cannot, in the present state of the evidence on record, pass below, and again which the instant action was brought, is based on the provisions of section
upon them. It is not necessary to do so. The issues arising therefrom may and will be left for 1687 of the Administrative Code and on the doctrine laid down in the cases of People vs.
initial determination in the appropriate action. But the Court will state that absent any Badilla (48 Phil., 718); United States vs. Tan Teng (23 Phil., 145); United States vs. Ong Siu
showing of any important cause therefor, it will not normally substitute its judgment for that Hong (36 Phil., 735), cited by counsel for the respondents, and in the case of Villaflor vs.
of the PCGG in these individual transactions. It is clear however, that as things now stand, the Summers (41 Phil., 62) cited by the judge in the order in question.
petitioner cannot be said to have established the correctness of its submission that the acts
of the PCGG in question were done without or in excess of its powers, or with grave abuse of Of course, the fiscal under section 1687 of the Administrative Code, and the proper judge,
discretion. 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
WHEREFORE, the petition is dismissed. The temporary restraining order issued on October constitutional rights of persons cited to appear.
14, 1986 is lifted.
And the petitioner, in refusing to perform what the fiscal demanded, seeks refuge in the
Yap, Fernan, Paras, Gancayco and Sarmiento, JJ., concur. 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


Republic of the Philippines provision invoked by the petitioner prohibits compulsion to execute what is enjoined upon
SUPREME COURT him by the order against which these proceedings were taken.
Manila
Said provision is found in paragraph 3, section 3 of the Jones Law which (in Spanish) reads:
EN BANC "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
G.R. No. 32025 September 23, 1929 section 56.

FRANCISCO BELTRAN, petitioner,


vs.

60
As to the extent of the privilege, it should be noted first of all, that the English text of the Of like character is the case of Sprouse vs. Com. (81 Va., 374,378), where the judge asked the
Jones Law, which is the original one, reads as follows: "Nor shall be compelled in any criminal defendant to write his name during the hearing, and the latter did so voluntarily.
case to be a witness against himself."
But the cases so resolved cannot be compared to the one now before us. We are not
This text is not limited to declaracion but says "to be a witness." Moreover, as we are concerned here with the defendant, for it does not appear that any information was filed
concerned with a principle contained both in the Federal constitution and in the against the petitioner for the supposed falsification, and still less as it a question of the
constitutions of several states of the United States, but expressed differently, we should take defendant on trial testifying and under cross-examination. This is only an investigation prior
it that these various phrasings have a common conception. 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.
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 We have also come upon a case wherein the handwriting or the form of writing of the
immaterial that the witness is protected by one constitution from 'testifying', or by defendant was obtained before the criminal action was instituted against him. We refer to
another from 'furnishing evidence', or by another from 'giving evidence,' or by still the case of People vs. Molineux (61 Northeastern Reporter, 286).
another from 'being a witness.' These various phrasings have a common
conception, in respect to the form of the protected disclosure. What is that Neither may it be applied to the instant case, because there, as in the aforesaid case of
conception? (4 Wigmore on Evidence, p. 863, 1923 ed.) Sprouse vs. Com., the defendant voluntarily offered to write, to furnish a specimen of his
handwriting.
As to its scope, this privilege is not limited precisely to testimony, but extends to all giving or
furnishing of evidence. 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 rights intended to be protected by the constitutional provision that no man the body of said decision referred to (page 307 of the volume cited):
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 The defendant had the legal right to refuse to write for Kinsley. He preferred to
strong and the evidence obscure, that is the duty of courts liberally to construe the accede to the latter's request, and we can discover no ground upon which the
prohibition in favor of personal rights, and to refuse to permit any steps tending writings thus produced can be excluded from the case. (Emphasis ours.)
toward their invasion. Hence, there is the well-established doctrine that the
constitutional inhibition is directed not merely to giving of oral testimony, but For the reason it was held in the case of First National Bank vs. Robert (41 Mich., 709; 3 N.
embraces as well the furnishing of evidence by other means than by word of mouth, W., 199), that the defendant could not be compelled to write his name, the doctrine being
the divulging, in short, of any fact which the accused has a right to hold secret. (28 stated as follows:
R. C. L., paragraph 20, page 434 and notes.) (Emphasis ours.)
The defendant being sworn in his own behalf denied the endorsement.
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 He was then cross-examined the question in regard to his having signed papers not
determining whether he wrote certain documents supposed to be falsified, constitutes in the case, and was asked in particular whether he would not produce signatures
evidence against himself within the scope and meaning of the constitutional provision under made prior to the note in suit, and whether he would not write his name there in
examination. 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
Whenever the defendant, at the trial of his case, testifying in his own behalf, denies that a case extrinsic signatures, for the purpose of comparison by the jury, and we think
certain writing or signature is in his own hand, he may on cross-examination be compelled to that the judge was correct in ruling against it.
write in open court in order that the jury maybe able to compare his handwriting with the
one in question. It is true that the eminent Professor Wigmore, in his work cited (volume 4, page 878), says:

It was so held in the case of Bradford vs. People (43 Pacific Reporter, 1013) inasmuch as the Measuring or photographing the party is not within the privilege. Nor it is
defendant, in offering himself as witness in his own behalf, waived his personal privileges. 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

61
to make specimens of handwriting is no more than requiring him to move his body . It cannot be contended in the present case that if permission to obtain a specimen of the
. ." but he cites no case in support of his last assertion on specimens of petitioner's handwriting is not granted, the crime would go unpunished. Considering the
handwriting. We note that in the same paragraph 2265, where said authors treats circumstance that the petitioner is a municipal treasurer, according to Exhibit A, it should not
of "Bodily Exhibition." and under preposition "1. A great variety of concrete be a difficult matter for the fiscal to obtained genuine specimens of his handwriting. But even
illustrations have been ruled upon," he cites many cases, among them that of supposing it is impossible to obtain specimen or specimens without resorting to the means
People vs. Molineux (61 N. E., 286) which, as we have seen, has no application to complained herein, that is no reason for trampling upon a personal right guaranteed by the
the case at bar because there the defendant voluntary gave specimens of his constitution. It might be true that in some cases criminals may succeed in evading the hand
handwriting, while here the petitioner refuses to do so and has even instituted of justice, but such cases are accidental and do not constitute the raison d' etre of the
these prohibition proceedings that he may not be compelled to do so. privilege. This constitutional privilege exists for the protection of innocent persons.

Furthermore, in the case before us, writing is something more than moving the body, or the With respect to the judgments rendered by this court and cited on behalf of the respondents,
hands, or the fingers; writing is not a purely mechanical act, because it requires the it should be remembered that in the case of People vs. Badilla (48 Phil., 718), it does not
application of intelligence and attention; and in the case at bar writing means that the appear that the defendants and other witnesses were questioned by the fiscal against their
petitioner herein is to furnish a means to determine whether or not he is the falsifier, as the will, and if they did not refuse to answer, they must be understood to have waived their
petition of the respondent fiscal clearly states. Except that it is more serious, we believe the constitutional privilege, as they could certainly do.
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 The privilege not to give self-incriminating evidence, while absolute when claimed,
now before us, the same eminent Professor Wigmore, in his work cited, says (volume 4, page maybe waived by any one entitled to invoke it. (28 R. C. L., paragraph 29, page 442,
864): and cases noted.)

. . . 2264. Production or Inspection of Documents and Chattels. — 1. It follows that The same holds good in the case of United States vs. Tan Teng (23 Phil., 145), were the
the production of documents or chattels by a person (whether ordinary witness or defendant did not opposethe extraction from his body of the substance later used as
party-witness) in response to a subpoena, or to a motion to order production, or to evidence against him.
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 In the case of Villaflor vs. Summers (41 Phil., 62), it was plainly stated that the court
refused under the protection of the privilege; and this is universally conceded. (And preferred to rest its decision on the reason of the case rather than on blind adherence to
he cites the case of People vs. Gardner, 144 N. Y., 119; 38 N.E., 1003) 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
We say that, for the purposes of the constitutional privilege, there is a similarity between court, as being no compulsion of the petitioner therein to furnish evidence by means
one who is compelled to produce a document, and one who is compelled to furnish a of testimonial act. In reality she was not compelled to execute any positive act, much less a
specimen of his handwriting, for in both cases, the witness is required to furnish evidence testimonial act; she was only enjoined from something preventing the examination; all of
against himself. 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, to write and give a specimen of
And we say that the present case is more serious than that of compelling the production of his handwriting for the purpose of comparison. Besides, in the case of Villamor vs. Summers,
documents or chattels, because here the witness is compelled to write and create, by means it was sought to exhibit something already in existence, while in the case at bar, the question
of the act of writing, evidence which does not exist, and which may identify him as the deals with something not yet in existence, and it is precisely sought to compel the petitioner
falsifier. And for this reason the same eminent author, Professor Wigmore, explaining the to make, prepare, or produce by this means, evidence not yet in existence; in short, to create
matter of the production of documents and chattels, in the passage cited, adds: this evidence which may seriously incriminate him.

For though the disclosure thus sought be not oral in form, and though the Similar considerations suggest themselves to us with regard to the case of United States vs.
documents or chattels be already in existence and not desired to be first written Ong Siu Hong (36 Phil., 735), wherein the defendant was not compelled to perform
and created by testimonial act or utterance of the person in response to the any testimonial act, but to take out of his mouth the morphine he had there. It was not
process, still no line can be drawn short of any process which treats him as a compelling him to testify or to be a witness or to furnish, much less make, prepare, or create
witness; because in virtue it would be at any time liable to make oath to the through a testimonial act, evidence for his own condemnation.
identity or authenticity or origin of the articles produced. (Ibid., pp. 864-865.)
(Emphasis ours.)
62
Wherefore, we find the present action well taken, and it is ordered that the respondents and the Secretary of Finance on November 17, 1965, to have the alleged Board Resolution No.
those under their orders desist and abstain absolutely and forever from compelling the 62-A approving the budget, considered null and void because the said plaintiffs never took
petitioner to take down dictation in his handwriting for the purpose of submitting the latter part in the deliberation approving the said Resolution; that for the defendants to continue
for comparison. making disbursements of public funds under the falsified budget, the people and the
government of the Province of Catanduanes will suffer irreparable damage and injury from
Without express pronouncement as to costs. So ordered. which there is no other plain, speedy and adequate remedy in the ordinary course of law
except the instant petition. Plaintiffs pray that pending resolution of the petition on the
Avanceña, C. J., Johnson, Street, Villamor, Johns, and Villa-Real, JJ., concur. merits, a preliminary injunction be issued restraining the defendants from authorizing,
approving and effecting the disbursements of public funds on the basis of the said budget. 2
FIRST DIVISION
On January 14, 1966, a writ of preliminary injunction was issued by the respondent Judge
against the defendants commanding them to desist from authorizing and making any further
G.R. No. L-25966 December 28, 1979
disbursements of funds from the budget in question. On January 17, 1966, the defendants
filed a motion for reconsideration and to dissolve the writ of preliminary injunction. 3 A
FERMIN A. BAGADIONG, petitioner, complaint in intervention 4 was filed on January 21, 1966 by herein respondent Francisco A.
vs. Perfecto praying, among others, that the annual budget of the Province of Catanduanes for
HON. FELICIANO S. GONZALES, Judge of the Court of First Instance of Catanduanes, the fiscal year 1965-1966 be declared null and void ab initio, the same being falsification that
CLEMENTE ABUNDO, RAFAEL VILLANLUNA and FRANCISCO A. PERFECTO, respondents. all original parties to the case be ordered to refund the province all moneys purportedly
appropriated under the falsified budget and disbursed and collected by them, respectively;
and that all the said original parties be condemned, jointly and severally, to pay the Province
of Catanduanes an amount equal to all disbursements under the falsified budget, by way of
exemplary damages.
DE CASTRO, J.:

On January 31, 1966, the respondent judge denied the motion to vacate and lift the writ of
This is a special civil action for certiorari instituted on April 27, 1966 by the petitioner to
preliminary injunction in an order 5 dated January 31, 1966.
annul the order 1 dated April 18, 1966 of respondent Judge of the Court of First Instance of
Catanduanes in Civil Case No. 546, entitled "Clemente Abundo and Rafael Villaluna, plaintiffs,
versus Jorge V. Almojuela, Dominador Monjardin, Fermin A. Bagadiong and Armando Ala, When the Civil Case No. 546 was called for trial on April 18, 1966, counsel for plaintiffs called
defendants, Francisco A. Perfecto, intervenor." Alleged as ground for the petition is that the one of the defendants, the herein petitioner, Fermin A. Bagadiong, to the witness stand as
order was issued with grave abuse of discretion, amounting to lack of jurisdiction. one of the witnesses for the plaintiffs. Counsel for the defendants raised the objection that
the said party cannot be called as a witness for the plaintiffs because it would violate his
constitutional right against self-incrimination. On the other hand, counsel for the plaintiffs
The facts are as follows:
contended that this being purely a civil action, the right against self-incrimination is not
involved, and if any testimony elicited from the herein petitioner would tend to incriminate
On January 12, 1966, the herein plaintiffs-respondents filed a aforementioned Civil Case No. himself, there would be ample time for the herein petitioner to raise the proper objection.
546 for prohibition with preliminary prohibitory and mandatory injunction with the Court of
First Instance of Catanduanes against defendants Jorge V. Almojuela, Dominador Monjardin,
The respondent Judge in his order 6 held that the position taken by the counsel for the
Fermin A. Bagadiong (the herein petitioner) and Armando Ala who are the Governor, Vice
plaintiffs is legally correct, thereby, ruling that the petitioner may testify as a witness for the
Governor, Provincial Treasurer and Provincial Auditor of the Province of Catanduanes,
plaintiffs.
respectively. In the said petition, it is alleged that defendants, including the herein petitioner,
are authorizing, approving and effecting the disbursements of public funds of the province
for purposes stated in the alleged annual Provincial Budget of the Province for the Fiscal Year After a verbal motion to reconsider the aforesaid order was denied by the respondent Judge,
1965-1966 purporting on its face to have been approved by the Provincial Board on August the herein petitioner filed with this Court the instant petition, claiming as earlier stated, that
23, 1965 under Resolution No. 62-A; that the aforesaid budget is falsified document because the respondent Judge acted in excess of his jurisdiction and/or with grave abuse of discretion
the Provincial Board never approved the same, the alleged Provincial Board Resolution No. in allowing the herein petitioner to testify for the respondents in Civil Case No. 546, and that
62-A which is claimed to have approved the said Budget does not exist; that upon discovery there is no appeal, nor any plain, speedy and adequate remedy in the ordinary course of law.
of the anomaly, plaintiffs Clemente Abundo and Rafael Villaluna made representations with
63
After the respondents have filed their answer to the instant petition, as required by this incrimination must be invoked at the proper time, and the proper time to
Court, both parties submitted their respective memoranda in lieu of oral argument, after invoke it is when a question calling for a criminating answer is
which the case was considered submitted for decision. 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 principal issue raised in the instant case is whether or not respondent Judge acted in the witness is self-incriminating or not. As stated in Jones on Evidence
excess of his jurisdiction and with grave abuse of discretion in allowing the herein petitioner (Vol. 6, pp. 4926-4927), a person who has been summoned to testify
to testify as a witness for the herein respondents, despite his claim of violating his right "cannot decline to appear, nor can he decline to be sworn as a witness"
against self-incrimination. and "no claim of privilege can be made until a question calling for a
criminating answer is asked; at that time, and generally speaking, at that
time only, the claim of privilege may properly be imposed." (Emphasis
The petitioner contends that the provision of the Rules of Court which authorizes a party to
supplied).
call the adverse party to the witness stand applies only to purely civil actions where the
defendant does not run the risk of being prosecuted for any offense. Likewise, the petitioner
assets that the right against self-incrimination can only be claimed when the incriminatory In the instant case, petitioner invoked the privilege even prior to any question being
question is being propounded and not before, by a mere witness, but not by a party propounded, and simply declined to take the witness stand. In the above-cited Gonzales
defendant, as in the case at bar. We find no merit to these contentions. case, it will be noted that the privilege against self-incrimination 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
There is no legal impediment for a party to call any of the adverse parties to be his witness,
witness is self-incriminating or not. Moreover, the herein petitioner was being directed to
as clearly provided in Section 6, Rule 132 of the Rules of Court which expressly provides:
take the stand, not in a criminal case where he is an accused but in civil action. This is
expressly permitted by Section 6, Rule 132 of the Rules of Court which authorizes a party to
A party may interrogate any unwilling or hostile witness by leading call any adverse party as his witness.
questions. A party may call on adverse party or an officer, director, or
managing agent of a public or private corporation or of a partnership or
In the later case of Suarez v. Tengco, 2 SCRA 71, 73-74, the following was stated:
association which is an adverse party, and interrogate him by leading
questions and contradict and impeach him in all respects as if he had
been called by the adverse party, and the witness thus called may be Here, petitioner invoked the privilege even prior to any question, and
contradicted and impeached by or on behalf of the adverse party also, simply declined to take the witness stand. Note that in the Gonzales case,
and may be cross-examined by the adverse party only upon the subject- above-cited, the adverse party was directed to take the witness stand in
matter of his examination in chief. proceedings to investigate an alleged failure to pay overtime
compensation, which, under corresponding special laws, carries a penal
sanction. Here, petitioner was being directed to take the stand, not in a
It is in a criminal case, when the accused may not be compelled to testify, or to so much as
criminal case where he is an accused, but in an independent civil action
utter a word, even for his own defense. 7 But while the constitutional guaranty against self-
which, although arising from the same facts involved in a criminal case
incrimination protects a person in all types of cases, be they criminal, civil or administrative,
pending before the same court, is still be regarded by law as an "entirely
8 said privilege, in proceedings other than a criminal case against him who invokes it, is
separate and distinct" action, governed by a corresponding different set
considered an option to refuse to answer incriminating question, and not a prohibition of
of rules (Civil Code of the Phil., Art. 2177).
inquiry.

The almost exact similarity of the instant case and the case just cited leaves no room for
As aptly stated by this Court in the case of Gonzales vs. Secretary of Labor, et al:9
doubt, and there is complete justification therefore that the same ruling must be applied
here.
Except in criminal cases, there in no rule prohibiting a party litigant form
utilizing his adversary as a witness. As a matter of fact, Section 83 of Rule
WHEREFORE, the instant petition to prohibit the respondent judge from directing petitioner
123, Rules of Court, expressly authorizes a party to call an adverse party
to take the witness stand and testify is denied, without prejudice to petitioner's properly
to the witness stand and interrogate him. This rule is, of course, subject
invoking the guaranty against self-incrimination when questions are propounded to him on
to the constitutional injunction not to compel any person to testify
the stand. Costs against the petitioner.
against himself. But it is established that the privilege against self-

64
SO ORDERED. On July 23, 1963, trial commenced before the judge presiding Branch IX of the Court of First
Instance of Rizal in Quezon City.
Republic of the Philippines
SUPREME COURT The trial opened with the following dialogue, which for the great bearing it has on this case,
Manila is here reproduced:.

EN BANC COURT:

G.R. No. L-29169 August 19, 1968 The parties may proceed.

ROGER CHAVEZ, petitioner, FISCAL GRECIA:


vs.
THE HONORABLE COURT OF APPEALS, THE PEOPLE OF THE PHILIPPINES and THE WARDEN Our first witness is Roger Chavez [one of the accused].
OF THE CITY JAIL OF MANILA, respondents.
ATTY. CARBON [Counsel for petitioner Chavez]:
Estanislao E. Fernandez and Fausto Arce for petitioner.
Office of the Solicitor General for respondents.
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.
SANCHEZ, J.:
COURT:
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
On what ground, counsel? .
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 ATTY. CARBON:
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 On the ground that I have to confer with my client. It is really surprising that at this
reason that he was raising purely questions of law. 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
The indictment in the court below — the third amended information — upon which the moment that I come to know about this strategy of the prosecution.
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 COURT (To the Fiscal):
'62 together with its accessories worth P22,200.00. Accused were the following: Petitioner
herein, Roger Chavez, Ricardo Sumilang alias "Romeo Vasquez", Edgardo P. You are not withdrawing the information against the accused Roger Chavez by
Pascual alias"Ging" Pascual, Pedro Rebullo alias "Pita", Luis Asistio alias "Baby" Asistio, making [him a] state witness?.
Lorenzo Meneses alias "Lory" Meneses, Peter Doe, Charlie Doe and Paul Doe.2

FISCAL GRECIA:
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- I am not making him as state witness, Your Honor.
described. I am only presenting him as an ordinary witness.

Upon arraignment, all the accused, except the three Does who have not been identified nor ATTY. CARBON:
apprehended, pleaded not guilty.1äwphï1.ñët
65
As a matter of right, because it will incriminate my client, I object. ATTY. CARBON:

COURT: I submit.

The Court will give counsel for Roger Chavez fifteen minutes within which to confer xxx xxx xxx
and explain to his client about the giving of his testimony.
ATTY. CRUZ [Counsel for defendants Pascual and Meneses]: .
xxx xxx xxx
MAY IT PLEASE THE COURT:
COURT: [after the recess]
This incident of the accused Roger Chavez being called to testify for the
Are the parties ready? . prosecution is something so sudden that has come to the knowledge of this
counsel.
FISCAL:
This representation has been apprised of the witnesses embraced in the
We are ready to call on our first witness, Roger Chavez. information.

ATTY. CARBON: For which reason I pray this court that I be given at least some days to meet
whatever testimony this witness will bring about. I therefore move for
postponement of today's hearing.
As per understanding, the proceeding was suspended in order to enable me to
confer with my client.
COURT:
I conferred with my client and he assured me that he will not testify for the
prosecution this morning after I have explained to him the consequences of what The court will give counsel time within which to prepare his cross-examination of
will transpire. this witness.

COURT: ATTY. CRUZ:

What he will testify to does not necessarily incriminate him, counsel. I labored under the impression that the witnesses for the prosecution in this
criminal case are those only listed in the information.
And there is the right of the prosecution to ask anybody to act as witness on the
witness-stand including the accused. I did not know until this morning that one of the accused will testify as witness for
the prosecution.
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:
court feels that the answer of this witness to the question would incriminate him.
That's the reason why the court will go along with counsels for the accused and will
Counsel has all the assurance that the court will not require the witness to answer give them time within which to prepare for their cross-examination of this witness.
questions which would incriminate him.
The court will not defer the taking of the direct examination of the witness.
But surely, counsel could not object to have the accused called on the witnessstand.
Call the witness to the witness stand.
66
EVIDENCE FOR THE PROSECUTION 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
ROGER CHAVEZ, 31 years old, single, buy and sell merchant, presently detained at Buick car. Asistio however told the two that he had a better idea on how to raise the money.
the Manila Police Department headquarters, after being duly sworn according to His plan was to capitalize on Romeo Vasquez' reputation as a wealthy movie star, introduce
law, declared as follows: 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
ATTY. IBASCO [Counsel for defendant Luis Asistio]:
Johnson Lee who was selling his Thunderbird. 1äwphï1.ñët

WITH THE LEAVE OF THE COURT:


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
This witness, Roger Chavez is one of the accused in this case No. Q-5311. 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
The information alleges conspiracy. Under Rule 123, Section 12, it states: (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,
'The act or declaration of a conspirator relating to the conspiracy and during its known to Chavez for the drafting of the deed of sale. After the deed of sale was drawn up, it
existence, may be given in evidence against the co-conspirator after the conspiracy was signed by Sumilang as the vendee, Dy Sun Hiok the vendor, and Sumilang's driver and
is shown by evidence other than such act or declaration.' Johnson Lee the witnesses thereto.

COURT: 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.
That is premature, counsel. Neither the court nor counsels for the accused know
what the prosecution eventsto establish by calling this witness to the witness stand.
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
ATTY. IBASCO: 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
I submit.
Then, the two Chinese were left alone in the restaurant. For Sumilang, who had left the table
COURT: The Fiscal may proceed.3 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
And so did the trial proceed. It began with the "direct examination" of Roger Chavez by locate Sumilang and Chavez. They went out to the place where the Thunderbird was parked,
"Fiscal Grecia". 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.
Came the judgment of February 1, 1965. The version of the prosecution as found by the
court below may be briefly narrated as follows: 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
A few days before November 12, 1962, Roger Chavez saw Johnson Lee, a Chinese, driving a
share in the transaction. On the 14th of November, the registration of the car was
Thunderbird car. With Ricardo Sumilang (movie actor Romeo Vasquez) in mind, whom he
transferred in the name of Sumilang in Cavite City, and three days later, in the name of
knew was in the market for such a car, Chavez asked Lee whether his car was for sale. Lee
Asistio in Caloocan.
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 From the court's decision, Ricardo Sumilang's version, corroborated in part by Asistio, may be
mortgage his Buick car for P10,000.00 to cover an indebtedness in Pasay City. Upon the condensed as follows:

67
In the last week of September, 1962, Sumilang saw Roger Chavez at a gas station. The latter When Sumilang was ready to leave Eugene's, Johnson Lee turned over to him the deed of
informed him that there was a Thunderbird from Clark Field for sale for a price between sale, the registration papers and the keys to the car. After shaking hands with Lee, Sumilang
P20,000.00 and P22,000.00. Chavez said that it could be held for him with a down payment drove away in the car with his driver at the wheel.
of P10,000.00.
Two or three days afterwards, Sumilang dropped by the Barrio Fiesta on his way to a film
To raise this sum, Sumilang and Chavez, on October 1, went to the house of a certain Nena shooting at Bulacan. He saw Asistio with many companions. Asistio liked his Thunderbird
Hernaez de los Reyes who wrote out a check for P5,000.00 as a loan to Sumilang. That check parked outside. Asistio offered to buy it from him for P22,500.00. As the offer was good, and
was exhibited in court. Sumilang and Chavez then went to Pasay City to see a certain Mario knowing Asistio's and his friends' reputation for always getting what they wanted, Sumilang
Baltazar, an agent of the Pasay City Mayor, and Narsing Cailles, Chief of the Fire Department. consented to the sale. Asistio tendered a down payment of P1,000.00; the balance he
Sumilang asked the two for a P10,000-loan backed up by the P5,000.00-check aforesaid on promised to pay the next day after negotiating with some financing company. Before said
condition that it should not be cashed immediately as there were not enough funds therefor. balance could be paid, the car was impounded.
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 The trial court gave evidence to Sumilang's averment, strengthened by Baltazar's and Cailles'
informed Sumilang that Chavez picked up the money the next day. Four or five days corroborations, that he paid good money for the car. Sumilang was thus cleared. So was
afterwards, Chavez returned P4,000.00 to Sumilang because P6,000.00 was enough for the Asistio whom the trial court believed to be a mere buyer of the car. And so, the prosecution's
deposit. And so, Sumilang gave back the P4,000.00 to Baltazar. theory of conspiracy was discounted.

About the end of October or at the beginning of November, Chavez asked Sumilang for As to the other accused, the court found no case against Pedro Rebullo alias "Pita" and
another P3,000.00. Sumilang sent Chavez to Baltazar and Cailles, with a note requesting that Lorenzo Meneses alias "Lory". The accused "Ging" Pascual was also acquitted for in the first
they accommodate him once more. He also sent a check, again without funds. Baltazar gave place he was not identified by Johnson Lee in court.
the money after verifying the authenticity of the note.
As to Roger Chavez, however, the court had this to say: "Roger Chavez does not offer any
On November 14, Chavez appeared at Sumilang's house with the news that the car was ready defense. As a matter of fact, his testimony as witness for the prosecution establishes his guilt
if Sumilang was ready with the rest of the money. So Sumilang got P9,000.00 from his mother beyond reasonable doubt."5 The trial court branded him "a self-confessed culprit".6 The court
and another P4,000.00 from his aparador. He immediately gave P6,000.00 to Chavez, further continued:
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.
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
The purchase price finally agreed upon between Sumilang and Johnson Lee was P21,000.00, fabrications which he expected would easily stick together what with the
plus P500.00 agents commission at the expense of the buyer. Sumilang told Lee that he newspaper notoriety of one and the sensationalism caused by the other. But Roger
already paid part of the price to Chavez. 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
At Eugene's, Chavez asked Sumilang for the balance. Sumilang accommodated. There, very different from those charged in this information, the Court would be too
Sumilang, also saw a friend, "Ging" Pascual. In the course of their conversation at the bar, gullible if it were to give full credence to his words even if they concerned a man no
Sumilang mentioned the proposed transaction thru Chavez. Pascual warned that Chavez was less notorious than himself.7
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. 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.
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 The sum of all these is that the trial court freed all the accused except Roger Chavez who was
sign the receipt as witnesses. And they did. This receipt was offered as an exhibit by the found guilty beyond reasonable doubt of the crime of qualified theft. He was accordingly
prosecution and by Sumilang. 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

68
subsidiary imprisonment in case of insolvency, to undergo the accessory penalties prescribed It has been said that forcing a man to be a witness against himself is at war with "the
by law, and to pay the costs. The Thunderbird car then in the custody of the NBI was ordered fundamentals of a republican government"; 10 that [i]t may suit the purposes of despotic
to be turned over to Ricardo Sumilang, who was directed to return to Asistio the sum of power but it can not abide the pure atmosphere of political liberty and personal
P1,000.00 unless the latter chose to pay P21,500.00, representing the balance of the contract freedom."11 Mr. Justice Abad Santos recounts the historical background of this constitutional
price for the car. 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,
The foregoing sentence was promulgated on March 8, 1965. Roger Chavez appealed to the which has long obtained in the continental system, and, until the expulsion of the Stuarts
Court of Appeals. 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
On April 18, 1968, the Court of Appeals required Atty. Natividad Marquez, counsel for Roger
always ranked high in the scale of incriminating evidence, if an accused person be asked to
Chavez, to show cause within ten days from notice why Chavez' appeal should not be
explain his apparent connection with a crime under investigation, the ease with which the
considered abandoned and dismissed. Reason for this is that said lawyer received notice to
questions put to him may assume an inquisitorial character, the temptation to press, the
file brief on December 28, 1967 and the period for the filing thereof lapsed on January 27,
witness unduly, to browbeat him if he be timid or reluctant, to push him into a corner, and to
1968 without any brief having been filed.
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
On May 13, 1968, Atty. Marquez registered a detailed written explanation. She also stated the system so odious as to give rise to a demand for its total abolition. The change in the
that if she were allowed to file appellant's brief she would go along with the factual English criminal procedure in that particular seems to be founded upon no statute and no
findings of the court below but will show however that its conclusion is erroneous.8 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
On May 14, 1968, the Court of Appeals, despite the foregoing explanation, resolved to American jurisprudence. So deeply did the iniquities of the ancient system impress
dismiss the appeal. A move to reconsider was unavailing. For, on June 21, 1968, the Court of themselves upon the minds of the American colonists that the states, with one accord, made
Appeals, through a per curiam resolution, disposed to maintain its May 14 resolution a denial of the right to question an accused person a part of their fundamental law, so that a
dismissing the appeal, directed the City Warden of Manila where Chavez is confined by virtue maxim which in England was a mere rule of evidence, became clothed in this country with
of the warrant of arrest issued by the Court of Appeals, to turn him over to Muntinlupa the impregnability of a constitutional enactment." (Brown vs. Walker, 161 U.S., 591, 597; 40
Bilibid Prisons pending execution of the judgment below, and ordered remand of the case to Law. ed., 819, 821)." 12 Mr. Justice Malcolm, in expressive language, tells us that this maxim
the Quezon City court for execution of judgment. 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
It was at this stage that the present proceedings were commenced in this Court. 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
Upon the petitions, the return, and the reply, and after hearing on oral arguments, we now accused persons to submit to judicial examinations, and to give testimony regarding the
come to grips with the main problem presented. offenses with which they were charged."

We concentrate attention on that phase of the issues which relates petitioner's assertion So it is then that this right is "not merely a formal technical rule the enforcement of which is
that he was compelled to testify against himself. For indeed if this one question is resolved in left to the discretion of the court"; it is mandatory; it secures to a defendant a valuable and
the affirmative, we need not reach the others; in which case, these should not be pursued substantive right; 15 it is fundamental to our scheme of justice. Just a few months ago, the
here. 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
1. Petitioner's plea on this score rests upon his averment, with proof, of violation of his right well as the innocent and foresighted." 16
— 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. It is in this context that we say that the constitutional guarantee may not be treated with
He asks us to consider the constitutional injunction that "No person shall be compelled to be unconcern. To repeat, it is mandatory; it secures to every defendant a valuable and
a witness against himself,"9 fully echoed in Section 1, Rule 115, Rules of Court where, in all substantive right. Tañada and Fernando (Constitution of the Philippines, 4th ed., vol. I, pp.
criminal prosecutions, the defendant shall be entitled: "(e) To be exempt from being a 583-584) take note of U.S. vs. Navarro, supra, which reaffirms the rule that the constitutional
witness against himself." . proscription was established on broad grounds of public policy and humanity; of policy
69
because it would place the witness against the strongest temptation to commit perjury, and And there is the right of the prosecution to ask anybody to act as witness on the
of humanity because it would be to extort a confession of truth by a kind of duress every witness-stand including the accused.
species and degree of which the law abhors. 17
If there should be any question that is incriminating then that is the time for
Therefore, the court may not extract from a defendant's own lips and against his will an counsel to interpose his objection and the court will sustain him if and when the
admission of his guilt. Nor may a court as much as resort to compulsory disclosure, directly or court feels that the answer of this witness to the question would incriminate him.
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 Counsel has all the assurance that the court will not require the witness to answer
silent, unless he chooses to take the witness stand — with undiluted, unfettered exercise of questions which would incriminate him.
his own free, genuine will.
But surely, counsel could not object to have the accused called on the witness
Compulsion as it is understood here does not necessarily connote the use of violence; it may stand.
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
Paraphrasing Chief Justice Marshall in Aaron Burr's Trial, Robertsons Rep. I, 208, 244, quoted
judgment would in our opinion be sufficient. So is moral coercion "tending to force testimony
in VIII Wigmore, p. 355, 25 While a defendant's knowledge of the facts remains concealed
from the unwilling lips of the defendant." 18
within his bosom, he is safe; but draw it from thence, and he is exposed" — to conviction.

2. With the foregoing as guideposts, we now turn to the facts. Petitioner is a defendant in a
The judge's words heretofore quoted — "But surely counsel could not object to have the
criminal case. He was called by the prosecution as the first witness in that case to testify for
accused called on the witness stand" — wielded authority. By those words, petitioner was
the People during the first day of trial thereof. Petitioner objected and invoked the privilege
enveloped by a coercive force; they deprived him of his will to resist; they foreclosed choice;
of self-incrimination. This he broadened by the clear cut statement that he will not
the realities of human nature tell us that as he took his oath to tell the truth, the whole truth
testify. But petitioner's protestations were met with the judge's emphatic statement that it
and nothing but the truth, no genuine consent underlay submission to take the witness
"is the right of the prosecution to ask anybody to act as witness on the witness
stand. Constitutionally sound consent was absent.
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. 3. Prejudice to the accused for having been compelled over his objections to be a witness for
The foregoing situation molds a solid case for petitioner, backed by the Constitution, the law, the People is at once apparent. The record discloses that by leading questions Chavez, the
and jurisprudence. 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
Petitioner, as accused, occupies a different tier of protection from an ordinary witness.
he himself proceeded to narrate the same anew in open court. He identified the Thunderbird
Whereas an ordinary witness may be compelled to take the witness stand and claim the
car involved in the case. 27
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 The decision convicting Roger Chavez was clearly of the view that the case for the People was
would be to incriminate him. 21 The rule positively intends to avoid and prohibit the certainly built primarily around the admissions of Chavez himself. The trial court described Chavez as
inhuman procedure of compelling a person "to furnish the missing evidence necessary for his the "star witness for the prosecution". Indeed, the damaging facts forged in the decision
conviction." 22 This rule may apply even to a co-defendant in a joint trial.23 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
And the guide in the interpretation of the constitutional precept that the accused shall not be
sale"; that Chavez "testimony as witness for the prosecution establishes his guilt beyond
compelled to furnish evidence against himself "is not the probability of the evidence but it is
reasonable doubt and that Chavez is "a self-confessed culprit". 1äwphï1.ñët
the capability of abuse." 24 Thus it is, that it was undoubtedly erroneous for the trial judge to
placate petitioner with these words:.
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
What he will testify to does not necessarily incriminate him, counsel.
now that he has waived his right. He did not volunteer to take the stand and in his own

70
defense; he did not offer himself as a witness; on the contrary, he claimed the right upon jurisdictional prerequisite to a Federal Court's authority. When this right is properly
being called to testify. If petitioner nevertheless answered the questions inspite of his fear of waived, the assistance of Counsel is no longer a necessary element of the Court's
being accused of perjury or being put under contempt, this circumstance cannot be counted jurisdiction to proceed to conviction and sentence. If the accused, however, is not
against him. His testimony is not of his own choice. To him it was a case of compelled represented by Counsel and has not competently and intelligently waived his
submission. He was a cowed participant in proceedings before a judge who possessed the constitutional right, the Sixth Amendment stands as a jurisdictional bar to a valid
power to put him under contempt had he chosen to remain silent. Nor could he escape conviction and sentence depriving him of his liberty. A court's jurisdiction at the
testifying. The court made it abundantly clear that his testimony at least on direct beginning of trial may be lost "in the course of the proceedings" due to failure to
examination would be taken right then and thereon the first day of the trial. 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
It matters not that, after all efforts to stave off petitioner's taking the stand became fruitless, constitutional guaranty, and whose life or liberty is at stake. If this requirement of
no objections to questions propounded to him were made. Here involve is not a mere the Sixth Amendment is not complied with, the court no longer has jurisdiction to
question of self-incrimination. It is a defendant's constitutional immunity from being called to proceed. The judgment of conviction pronounced by a court without jurisdiction is
testify against himself. And the objection made at the beginning is a continuing void, and one imprisoned thereundermay obtain release of habeas corpus. 41
one. 1äwphï1.ñët
Under our own Rules of Court, to grant the remedy to the accused Roger Chavez whose case
There is therefore no waiver of the privilege. "To be effective, a waiver must be certain presents a clear picture of disregard of a constitutional right is absolutely proper. Section 1 of
and unequivocal, and intelligently, understandably, and willingly made; such waiver following Rule 102 extends the writ, unless otherwise expressly provided by law, "to all cases of illegal
only where liberty of choice has been fully accorded. After a claim a witness cannot properly confinement or detention by which any person is deprived of his liberty, or by which the
be held to have waived his privilege on vague and uncertain evidence." 28 The teaching rightful custody of any person is withheld from the person entitled thereto.
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 Just as we are about to write finis to our task, we are prompted to restate that: "A void
presume acquiescence in the loss of fundamental rights." A waiver is ordinarily an intentional judgment is in legal effect no judgment. By it no rights are divested. From it no rights can be
relinquishment or abandonment of a known right or privilege." Renuntiatio non praesumitur. 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
The foregoing guidelines, juxtaposed with the circumstances of the case heretofore adverted void. The parties attempting to enforce it may be responsible as trespassers. ... " 42
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 6. Respondents' return 43 shows that petitioner is still serving under a final and valid
gives protection - even to the guilty. 30 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
5. The course which petitioner takes is correct. Habeas corpus is a high prerogative writ. 31 It that petitioner herein is entitled to liberty thru habeas corpus only with respect to Criminal
is traditionally considered as an exceptional remedy to release a person whose liberty is Case Q-5311 of the Court of First Instance of Rizal, Quezon City Branch, under which he was
illegally restrained such as when the accused's constitutional rights are disregarded. 32 Such prosecuted and convicted.
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 Upon the view we take of this case, judgment is hereby rendered directing the respondent
judgment of conviction may be challenged by collateral attack, which precisely is the function Warden of the City Jail of Manila or the Director of Prisons or any other officer or person in
of habeas corpus. 35 This writ may issue even if another remedy which is less effective may be custody of petitioner Roger Chavez by reason of the judgment of the Court of First Instance
availed of by the defendant. 36Thus, failure by the accused to perfect his appeal before the of Rizal, Quezon City Branch, in Criminal Case Q-5311, entitled "People of the Philippines,
Court of Appeals does not preclude a recourse to the writ. 37 The writ may be granted upon a plaintiff, vs. Ricardo Sumilang, et al., accused," to discharge said Roger Chavez from
judgment already final. 38 For, as explained in Johnson vs. Zerbst, 39 the writ of habeas corpus custody, unless he is held, kept in custody or detained for any cause or reason other than the
as an extraordinary remedy must be liberally given effect 40 so as to protect well a person said judgment in said Criminal Case Q-5311 of the Court of First Instance of Rizal, Quezon City
whose liberty is at stake. The propriety of the writ was given the nod in that case, involving a Branch, in which event the discharge herein directed shall be effected when such other cause
violation of another constitutional right, in this wise: or reason ceases to exist.

Since the Sixth Amendment constitutionally entitles one charged with crime to the No costs. So ordered.
assistance of Counsel, compliance with this constitutional mandate is an essential
71
Republic of the Philippines plea, at the same time stating that at the next scheduled hearing, on February 12, 1965,
SUPREME COURT petitioner-appellee would be called upon to testify as such witness, unless in the meantime
Manila he could secure a restraining order from a competent authority.

EN BANC 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
G.R. No. L-25018 May 26, 1969 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
ARSENIO PASCUAL, JR., petitioner-appellee, character. With his assertion that he was entitled to the relief demanded consisting of
vs. perpetually restraining the respondent Board from compelling him to testify as witness for
BOARD OF MEDICAL EXAMINERS, respondent-appellant, SALVADOR GATBONTON and his adversary and his readiness or his willingness to put a bond, he prayed for a writ of
ENRIQUETA GATBONTON, intervenors-appellants. preliminary injunction and after a hearing or trial, for a writ of prohibition.

Conrado B. Enriquez for petitioner-appellee. On February 9, 1965, the lower court ordered that a writ of preliminary injunction issue
Office of the Solicitor General Arturo A. Alafriz, Assistant Solicitor General Antonio A. Torres against the respondent Board commanding it to refrain from hearing or further proceeding
and Solicitor Pedro A. Ramirez for respondent-appellant. with such an administrative case, to await the judicial disposition of the matter upon
Bausa, Ampil and Suarez for intervenors-appellants. petitioner-appellee posting a bond in the amount of P500.00.

FERNANDO, J.: 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-
The broad, all-embracing sweep of the self-incrimination clause,1 whenever appropriately incrimination being available only when a question calling for an incriminating answer is
invoked, has been accorded due recognition by this Court ever since the adoption of the asked of a witness. It further elaborated the matter in the affirmative defenses interposed,
Constitution.2 Bermudez v. Castillo,3 decided in 1937, was quite categorical. As we there stating that petitioner-appellee's remedy is to object once he is in the witness stand, for
stated: "This Court is of the opinion that in order that the constitutional provision under respondent "a plain, speedy and adequate remedy in the ordinary course of law," precluding
consideration may prove to be a real protection and not a dead letter, it must be given a the issuance of the relief sought. Respondent Board, therefore, denied that it acted with
liberal and broad interpretation favorable to the person invoking it." As phrased by Justice grave abuse of discretion.
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 There was a motion for intervention by Salvador Gatbonton and Enriqueta Gatbonton, the
served." 4 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
Even more relevant, considering the precise point at issue, is the recent case of Cabal v. answer in intervention was duly filed by them on March 23, 1965 sustaining the power of
Kapunan,5where it was held that a respondent in an administrative proceeding under the respondent Board, which for them is limited to compelling the witness to take the stand, to
Anti-Graft Law 6 cannot be required to take the witness stand at the instance of the be distinguished, in their opinion, from the power to compel a witness to incriminate himself.
complainant. So it must be in this case, where petitioner was sustained by the lower court in They likewise alleged that the right against self-incrimination cannot be availed of in an
his plea that he could not be compelled to be the first witness of the complainants, he being administrative hearing.
the party proceeded against in an administrative charge for malpractice. That was a correct
decision; we affirm it on appeal. 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
Arsenio Pascual, Jr., petitioner-appellee, filed on February 1, 1965 with the Court of First the petitioner to act and testify as a witness for the complainant in said investigation without
Instance of Manila an action for prohibition with prayer for preliminary injunction against the his consent and against himself." Hence this appeal both by respondent Board and
Board of Medical Examiners, now respondent-appellant. It was alleged therein that at the intervenors, the Gatbontons. As noted at the outset, we find for the petitioner-appellee.
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 1. We affirm the lower court decision on appeal as it does manifest fealty to the principle
respondent in such malpractice charge. Thereupon, petitioner-appellee, through counsel, announced by us in Cabal v. Kapunan. 8 In that proceeding for certiorari and prohibition to
made of record his objection, relying on the constitutional right to be exempt from being a annul an order of Judge Kapunan, it appeared that an administrative charge for unexplained
witness against himself. Respondent-appellant, the Board of Examiners, took note of such a wealth having been filed against petitioner under the Anti-Graft Act,9the complainant
72
requested the investigating committee that petitioner be ordered to take the witness stand, deference accorded an individual even those suspected of the most heinous crimes is given
which request was granted. Upon petitioner's refusal to be sworn as such witness, a charge due weight. To quote from Chief Justice Warren, "the constitutional foundation underlying
for contempt was filed against him in the sala of respondent Judge. He filed a motion to the privilege is the respect a government ... must accord to the dignity and integrity of its
quash and upon its denial, he initiated this proceeding. We found for the petitioner in citizens." 14
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 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,
It was noted in the opinion penned by the present Chief Justice that while the matter whether physical or mental, current judicial opinion places equal emphasis on its
referred to an a administrative charge of unexplained wealth, with the Anti-Graft Act identification with the right to privacy. Thus according to Justice Douglas: "The Fifth
authorizing the forfeiture of whatever property a public officer or employee may acquire, Amendment in its Self-Incrimination clause enables the citizen to create a zone of privacy
manifestly out proportion to his salary and his other lawful income, there is clearly the which government may not force to surrender to his detriment." 15 So also with the
imposition of a penalty. The proceeding for forfeiture while administrative in character thus observation of the late Judge Frank who spoke of "a right to a private enclave where he may
possesses a criminal or penal aspect. The case before us is not dissimilar; petitioner would be lead a private life. That right is the hallmark of our democracy." 16 In the light of the above, it
similarly disadvantaged. He could suffer not the forfeiture of property but the revocation of could thus clearly appear that no possible objection could be legitimately raised against the
his license as a medical practitioner, for some an even greater deprivation. 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
To the argument that Cabal v. Kapunan could thus distinguished, it suffices to refer to an cannot, consistently with the self-incrimination clause, compel the person proceeded against
American Supreme Court opinion highly persuasive in character. 10 In the language of Justice to take the witness stand without his consent.
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 WHEREFORE, the decision of the lower court of August 2, 1965 is affirmed. Without
individuals, and that it should not be watered down by imposing the dishonor of disbarment pronouncement as to costs.
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.
Republic of the Philippines
2. The appeal apparently proceeds on the mistaken assumption by respondent Board and SUPREME COURT
intervenors-appellants that the constitutional guarantee against self-incrimination should be Baguio
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 EN BANC
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 G.R. No. 100295 April 26, 1994
which could lead to other evidence that might be so used." If that were all there is then it
becomes diluted.lawphi1.ñet PLACIDO L. MAPA, JR., and J. LORENZO VERGARA, petitioners,
vs.
The constitutional guarantee protects as well the right to silence. As far back as 1905, we had SANDIGANBAYAN, respondent.
occasion to declare: "The accused has a perfect right to remain silent and his silence cannot
be used as a presumption of his guilt." 12Only last year, in Chavez v. Court of Estelito P. Mendoza for Placido L. Mapa, Jr.
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
Filemon Flores for J. Lorenzo Vergara.
witness stand — with undiluted, unfettered exercise of his own free genuine will."
PUNO, J.:
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
The denial of the right to be free from further prosecution of a cooperative witness who has
unpunished and that the truth must be revealed, such desirable objectives should not be
been granted immunity is the core issue posed in this petition. On balance are important
accomplished according to means or methods offensive to the high sense of respect
rights in conflict: the right of an individual who has surrendered his constitutional prerogative
accorded the human personality. More and more in line with the democratic creed, the
73
to be silent to the State to be exempt from further prosecution; the right of the State to damage and prejudice of the Government in the amount of FOUR HUNDRED MILLION
prosecute all persons who appear to have committed a crime and its prerogative to revoke (P400,000,000.00) PESOS, and such other amounts as may be awarded by the Court.
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 CONTRARY TO LAW.
extended by the PCGG to an accused.
Except for petitioner Araneta, all the accused in Criminal Case
First, the facts. No. 11960 were arraigned. Their trial started on September 20, 1988.

On January 20, 1987, petitioners Placido L. Mapa and Lorenzo Vergara, together with In the interim, the late President Ferdinand E. Marcos and Mrs. Imelda R. Marcos were
Gregorio Ma. Araneta III, Fernando Balatbat, Ramon Aviado, Jr., Dominador Lopez, Jr., charged in New York with violations of the Racketeer Influenced and Corrupt Organization
Fernando Maramag, Jr., and Jose Crisanto, Jr., were charged with violation of the Anti-Graft Act (RICO) by transporting to the United States and concealing the investment of money
and Corrupt Practices Act (R.A. 3019) as amended, docketed as Case No. 11960 in the through cronies and offshore organizations. To insure the conviction of the Marcoses, the
respondent court, as follows: 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
That on or about and during the period from March 1985 and March 1986, in Metro Severina Rivera and by United States Prosecutor Charles La Bella. Petitioner Mapa was
Manila, Philippines, and within the jurisdiction of the Honorable Sandiganbayan, interviewed on November 14, 1988 and August 11, 1989 also by Prosecutor La Bella at the
accused Placido L. Mapa, Jr., J. Lorenzo Vergara, Ramon F. Aviado, Jr., Dominador Lopez, behest of former Secretary of Justice Sedfrey Ordonez and former PCGG Chairman Mateo
Jr., Fernando Maramag, Jr., Jose C. Crisanto, Jr., acting in various capacities as Caparas. After their interviews, petitioners were requested to testify in the said RICO cases
management officials of the Philippine National Bank (PNB), National Investment and against the former First Couple. They were promised immunity from further criminal
Development Corporation (NIDC) and/or Pantranco North Express Inc. (PNEI), all prosecution. They agreed.
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 On May 16, 1990, the Philippine Government through the PCGG, and the petitioners
responsibilities, and with intent to gain, conspiring and confederating with one another formalized their separate agreements in writing. The agreement with petitioner Mapa
and with accused Gregorio Ma. Araneta III, son-in-law of former President Ferdinand E. provided:
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 WHEREAS, REPUBLIC has requested MAPA to make himself available as a witness in
manifest partiality and evident bad faith, without proper board resolution and in the case entitled "United States of America vs. Ferdinand E. Marcos, et al.," more
disregard of better offers, promote and facilitate the sale of a major portion of the particularly in the on-going trial of the case;
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 WHEREAS, MAPA is a defendant or respondent in several civil and criminal cases
North Express Transport, Inc. (NETI), which the accused knew to be a newly organized which the REPUBLIC has filed or intends to file in relation to this participation in
paper corporation with a purported paid-up capital of only FIVE MILLION various contracts that are alleged to have resulted in the accumulation of ill-gotten
(P5,000,000.00) PESOS and owned and controlled by accused Gregorio Ma. Araneta III, wealth by Ferdinand and Imelda Marcos in violation of Philippine laws, rules and
by misleading, inducing and/or unduly influencing the Board of Directors of PNB, NIDC regulations;
and PNEI into approving a Memorandum of Agreement and later a Purchase Agreement
with manifestly and grossly disadvantageous terms and conditions which made possible WHEREAS, on the basis of MAPA's express intent to make himself available as
the premature delivery of said PNEI assets to NETI without any down payment, and witness in the case entitled "United States of America vs. Ferdinand E. Marcos, et
which, inter alia, allowed NETI to operate PNEI's franchises and utilize, even before the al.," and in light of REPUBLIC's re-appraisal of the civil and criminal cases which it
execution of the said Purchase Agreement, not only the PNEI assets subject of the has filed or intends to file against MAPA under the terms and conditions herein
proposed sale, but also other utility buses and properties of PNEI not covered by the below set forth.
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
NOW, THEREFORE, for and in consideration of the foregoing premises, the parties
MILLION SIX HUNDRED EIGHTY-NINE THOUSAND, ONE HUNDRED EIGHTY
agree as follows:
(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

74
1. MAPA shall make himself available as a witness in the case entitled "United NOW, THEREFORE, for and in consideration of the foregoing premises, the parties
States of America vs. Ferdinand E. Marcos, et al." agree as follows:

2. In consideration of the same, REPUBLIC grants MAPA immunity from 1. VERGARA shall make himself available as a witness in the case entitled "United
investigation, prosecution and punishment for any offense with reference to which States of America vs. Ferdinand E. Marcos, et al."
his testimony and information are given, including any offense and commission of
which any information, directly or indirectly derived from such testimony or other 2. In consideration of the same, REPUBLIC grants VERGARA immunity from
information is used as basis thereof, except a prosecution for perjury and/or giving investigation, prosecution and punishment for any offense with reference to which
false testimony. his testimony and information are given, including any offense and commission of
which any information, directly or indirectly derived from such testimony or other
3. Likewise, in consideration of such cooperation, and in light of REPUBLIC’s review information is used as basis thereof, except a prosecution for perjury and/or giving
of the cases both civil and criminal which it has filed or intends to file against MAPA false testimony.
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 3. Likewise, in consideration of such cooperation, and in light of REPUBLIC’s review
PCGG initiated civil cases and criminal proceeding or investigation. 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 MAPA on the basis of and
relying on MAPA's promise of cooperation as described herein. In case of breach of 4. The immunity has been granted by the REPUBLIC to VERGARA on the basis of
his commitment to fully cooperate and make himself available as a witness in the and relying on VERGARA's promise of cooperation as described herein. In case of
case entitled "United States of America vs. Ferdinand E. Marcos, et al.", the breach of h is commitment to fully cooperate and make himself available as a
immunity herein granted shall forthwith be deemed revoked, and of no force and witness in the case entitled "United States of America vs. Ferdinand E. Marcos, et
effect. 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 5. The parties agree that the grant of immunity from civil and criminal prosecution
investigations has been undertaken in the exercise of the PCGG's authority under to VERGARA and his exclusion from Criminal Case No. 11960 has been undertaken
Executive Order Nos. 1, 2, 14 and 14-A. Accordingly, nothing herein shall be in the exercise of the PCGG's authority under Executive Orders Nos. 1, 2, 14 and 14-
construed as an admission by MAPA of any criminal or civil liability. A. Accordingly, nothing herein shall be construed as a admission by VERGARA of
any criminal liability.
The agreement with petitioner Vergara stated:
On the same day, May 16, 1990, former PCGG Chairman Mateo Caparas wrote to petitioner
WHEREAS, REPUBLIC has requested VERGARA to make himself available as a Mapa the following letter:
witness in the case entitled "United States of America vs. Ferdinand E. Marcos, et Dear Sir:
al.," more particularly in the on-going trial of the case;
With reference to the agreement executed between yourself and the Republic of the
WHEREAS, Vergara is a defendant in Criminal Case No. 11960 entitled "People vs. Philippines on May 16, 1990, we would like to confirm
Gregorio Ma. Araneta, et al.", now pending before the Sandiganbayan, Second that among the criminal cases which the Republic agrees to cause the dismissal of the case
Division; 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
WHEREAS, on the basis of VERGARA’s express intent to make himself available as process of closing its evidence with the submission of its offer of documentary evidence and
witness in the case entitled "United States of America vs. Ferdinand E. Marcos, et that it is your intention thereupon to submit a Motion to Dismiss for failure of the
al.," and in the light of REPUBLIC's re-appraisal of VERGARA's participation in prosecution to prove its case. We affirm that if, because of the situation of the case, it would
Criminal Case No. 11960, the REPUBLIC approved to grant immunity to VERGARA not be possible for the Republic to file the necessary motion to cause the dismissal thereof,
under the terms and conditions hereinbelow set forth. then we shall upon submission of your Motion to Dismiss offer no objection to its favorable
consideration by the court in relation to you.

75
We also affirm our understanding that we shall arrange with the U.S. prosecutors the grant Case No. 11960 make the immunity granted to them inapplicable to Criminal Case
of immunity in your favor no less broad or extensive than that granted to Mr. Jaime C. Laya. No. 11960?

Very truly yours, 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
(SGD.) M.A.T. Caparas 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?
A similar letter was sent to petitioner Vergara.
2.00.c. Does the fact that the prosecution in the RICO cases did not actually present
The petitioners complied with their respective undertaking. They travelled to New York to petitioners as witnesses abrogate the immunity granted to them?
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 2.00.d. Was the immunity granted to petitioners too late considering that when it
prosecutors decided not to call them to the witness stand. The result was a debacle for the was granted, the prosecution in Criminal Case
US prosecutors and the PCGG. Mrs.Imelda Marcos was acquitted by the jury. Earlier, former No. 11960 had already rested its case?"
President Marcos was delisted as an accused as he died in the course of the proceedings.
The proceedings before us took a new wrinkle with the appointment of Atty. David Castro as
The legal struggle shifted back to the prosecution of petitioners in Criminal Case No. 11960 Chairman of PCGG. In its Comment dated January 6, 1992, the PCGG somersaulted from its
before the respondent court. On the basis of the immunity granted to them, petitioners filed stance supporting the petitioners. Its Comment states:
a Joint Motion to Dismiss on October 22, 1990. Deputized PCGG prosecutors Vivencio B.
Dionido and Angel J. Parazo filed a Manifestation interposing no objection to petitioners' 1. The Presidential Commission on Good Government has indeed granted Messrs.
Motion, viz: Placido L. Mapa, Jr., and Jesus Lorenzo Vergara immunity from investigation,
prosecution and punishment for any offense for which civil and criminal cases have
That herein accused Placido L. Mapa, Jr. and J. Lorenzo Vergara were granted been or to be filed against them within the purview of Executive Orders Nos. 1, 2,
immunity by the Presidential Commission on Good Government from criminal 14 and 14-A but such immunity is conditional.
liability arising from cases which PCGG had or intends to file against them;
2. The conditions for giving such immunity is the cooperation said petitioners shall
The PCGG, therefore, interposes no objection to the Joint Motion to Dismiss filed give to said Commission by way of information and testimony in cases now pending
by accused Placido L. Mapa, Jr. and J. Lorenzo Vergara in Criminal Case No. 11960- or to be filed before the Sandiganbayan against other defendants therein to prove
PCGG by reason of the immunity aforestated. the latter's acquisition or accumulation of property or properties in violation of
existing laws.
Despite PCGG's concurrence, the respondent court denied the Joint Motion to Dismiss, by a
vote of 4-1. 1Petitioners were undaunted. On April 8, 1991, they filed a Motion for 3. Failure on the part of petitioners Placido Mapa, Jr. and Jesus Vergara to testify in
Reconsideration. This was followed on May 23, 1991, by a Supplement to the Motion for favor of the government and against other defendants on matters referred to in
Reconsideration. The deputized prosecutors again filed a Manifestation reiterating PCGG's the immediately preceding paragraph nullifies the immunity granted to both
acquiescence to petitioners' Motion for Reconsideration. Respondent court, however, defendants (emphasis supplied).
refused to budge from its prior position. It denied petitioners' motions.
It reiterated its breakaway from petitioners in its Comment to the Reply of petitioners dated
Hence, this recourse where petitioners charge the respondent court with grave abuse of June 10, 1992, where it adopted the respondent Sandiganbayan's questioned Resolution and
discretion in denying their Motion to Dismiss and Motion for Reconsideration. They pose the Concurring Opinions dated
following issues: 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,
2.00.a. Does the fact that the information provided by petitioners to the after applying the test of compliance and the standard of reasonableness with the rigid
Presidential Commission on Good Government (PCGG) did not refer to Criminal 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.

76
We find merit in the petition. 1. The information must refer to consummated violations of any of the above-
mentioned provisions of law, rules and regulations;
The practice of granting government, its officials, and some accused or respondents
immunity from suits, has a long history. 2. The information and testimony are necessary for the conviction of the accused
public officer;
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 3. Such information and testimony are not yet in the possession of the State;
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 4. Such information and testimony can be corroborated on its material points; and
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 5. The informant or witness has not been previously convicted of a crime involving
punishable by not more than six years imprisonment, be privileged from arrest while the moral turpitude.
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 Likewise, under PD No. 1886, the Agrava Fact Finding Board, created to conduct a fact-finding
any committee thereof." Mr. Justice Isagani A. Cruz explains the rationale for this immunity inquiry in the Aquino-Galman double murder case, was given the power to compel testimony
in the following manners: ". . . The first is intended to ensure representation of the of a witness. In exchange for his testimony, such a witness was extended transactional
constituents of the member of the Congress by preventing attempts to keep him from immunity from later prosecution. Section 5 of said PD No. 1886 states:
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 No person shall be excused from attending and testifying or from producing books,
inability to support his statements with the usual evidence required in the court of justice. In records, correspondence, documents, or other evidence in obedience to a
other words, he is given more leeway than the ordinary citizen in the ventilation of matters subpoena issued by the Board on the ground that his testimony or the evidence
that ought to be divulged for the public good."3 The President was also immunized from suit required of him may tend to incriminate him or subject him to penalty or
during his tenure in the 1973 Constitution. 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
Aside from the Constitution, Congress has enacted laws giving immunity to witnesses to he is compelled, after having invoked his privilege against self-incrimination to
facilitate the solution of crimes with high political, social and economic impact against the testify or produce evidence, except that such individual so testifying shall not be
people. Some of these statutory grants are related in the impugned Resolution. Thus, PD 749 exempt from prosecution and punishment for perjury committed in so testifying,
provides: 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.
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 Indeed, as early as April 16, 1951, R.A. 602, establishing a minimum wage law, extended
amended; Section 345 of the Internal Revenue Code and Section 3604 of the Tariff transactional immunity to persons who testify or produce books, papers or other records and
and Customs Code and other provisions of the said codes penalizing abuse or documents before the Secretary of Labor or a Wage Board. A similar but not identical power
dishonesty on the part of the public officials concerned; and other laws, rules and is given to the prosecution under section 9, Rule 119 of the 1985 Rules on Criminal Procedure
regulations punishing acts of graft, corruption and other forms of official abuse; to discharge an accused to be utilized as a state witness.
and who willingly testified, such violator shall be exempt from prosecution or
punishment for the offense with reference to which his information and testimony Our immunity statutes are of American origin. In the United States, there are two types of
were given, and may plead or prove the giving of such information and testimony statutory immunity granted to a witness. They are the transactional immunity and the used-
in bar of such prosecution: Provided, That this immunity may be enjoyed even in and-derivative-use immunity. Transactional immunity is broader in the scope of its
cases where the information and the testimony are given against a person who is protection. By its grant, a witness can no longer be prosecuted for any offense whatsoever
not a public official but who is a principal or accomplice, or accessory in the arising out of the act or transaction. 4 In contrast, by the grant of use-and-derivative-use
commission of any of the above-mentioned violations: Provided, further, That this immunity,
immunity may be enjoyed by such informant or witness notwithstanding that he a witness is only assured that his or her particular testimony and
offered or gave bribe or gift to the public official or is an accomplice for such gift or evidence derived from it will not be used against him or her in a subsequent
bribe-giving; And, Provided, finally, That the following conditions concur: prosecution. 5 In Kastigar vs. US, 6 the rationale of these immunity grants is well
explained, viz:
77
The power of government to compel persons to testify in court or before grand The witness may not refuse to comply with the order on the basis of his privilege
juries and other governmental agencies is firmly established in Anglo-American against self-incrimination; but no testimony or other information compelled under
jurisprudence . . . The power to compel testimony, and the corresponding duty to the order (or any information directly or indirectly derived from such testimony, or
testify, are recognized in the Sixth Amendment requirements that an accused be other information) may be used against the witness in any criminal case, except a
confronted with the witnesses against him, and have compulsory process for prosecution for perjury, giving a false statement, or otherwise failing to comply
obtaining witnesses in his favor. . . with the other.'

xxx xxx xxx Sec. 3. Section 5 of Executive Order No. 14 dated May 7, 1986 is hereby amended
to read as follows:
But the power to compel testimony is not absolute. There are a number of
exemptions from the testimonial duty, the most important Sec. 5. The Presidential Commission on Good Government is authorized to grant
of which is the Fifth Amendment privilege against compulsory immunity from criminal prosecution to any person who provides information or
self-incrimination. The privilege reflects a complex of our fundamental values and testifies in any investigation conducted by such Commission to establish the
aspirations, and marks an important advance in the development of our liberty. It unlawful manner in which any respondent, defendant or accused has acquired or
can be asserted in any proceeding, civil or criminal, administrative or judicial, accumulated the property or properties in question in any case where such
investigatory or adjudicatory; and it protects against any disclosures that the information or testimony is necessary to ascertain or prove the latter's guilt or his
witness reasonably believes could be used in a criminal prosecution or could lead civil liability. The immunity thereby granted shall be continued to protect the
to other evidence that might be so used. This Court has been zealous to safeguard witness who repeats such testimony before the Sandiganbayan when required to
the values that underlie the privilege. do so by the latter or by the Commission.

Immunity statutes, which have historical roots deep in Anglo-American There are obvious differences between the powers granted to the PCGG under sections 4
jurisprudence, are not incompatible with these values. Rather, they seek a rational and 5. Section 4 deals with the power which PCGG can use to compel an unwilling witness to
accommodation between the imperatives of the privilege and the legitimate testify. On the other hand, section 5 speaks of the power which PCGG can wield to secure
demands of government to compel citizens to testify. The existence of these information from a friendly witness. Under section 4, the hostile witness compelled to testify
statutes reflects the importance of testimony, and the fact that many offenses are is not immunized from prosecution. He can still be prosecuted but "no testimony or other
of such a character that the only persons capable of giving useful testimony are information compelled under the order (or any information directly or indirectly derived
those implicated in the crime. Indeed, their origins were in the context of such from such testimony or other information) may be used against the witness in any criminal
offenses, and their primary use has been to investigate such offenses . . . (E)very case . . . ." In contrast, under section 5, the friendly witness is completely immunized from
State in the Union, as well as the District of Columbia and Puerto Rico, has one of prosecution.
more such statutes. The commentators, and this Court on several occasions, have
characterized immunity statutes as essential to the effective enforcement of The case at bench involves an exercise of power by PCGG under
various criminal statutes. . . 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
We shall now examine the powers granted to PCGG by Executive Order No. 14, as amended, US prosecutor La Bella. Due to their cooperation, they were extended immunity from
to grant immunity from criminal prosecution. The pertinent sections provide: 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
xxx xxx xxx 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.
Sec. 2. Section 4 of Executive Order No. 14 dated May 7, 1986 is hereby amended
to read as follows: 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
Sec. 4. A witness may refuse on the basis of his privilege against self-incrimination, court. To be sure, we have grappled with this once slippery issue in the case of Republic vs.
to testify or provide other information in a proceeding before the Sandiganbayan if Sandiganbayan, 173 SCRA 76, 80-81, and we held:
the witness believes that such testimony or provision of information would tend to
incriminate him or subject him to prosecution. Upon such refusal, the We first ascertain whether or not the Sandiganbayan has jurisdiction to look into
Sandiganbayan may order the witness to testify or provide information. the validity of the immunity granted by the PCGG to Jose Y. Campos which was
78
extended to his son, petitioner-intervenor herein, the respondent court to review the exercise of discretion by the PCGG granting a section 5
Jose Campos, Jr. 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.
xxx xxx xxx Legitimate power can not arise from a vacuum.

The powers of the PCGG are not unlimited. Its jurisdiction over cases involving ill- We observe that in contrast to our other laws on immunity, section 5 of E.O. No. 14, as
gotten wealth must be within the parameters stated in Executive Order No. 14. amended, confers on the PCGG the power to grant immunity alone and on its own authority.
Necessarily, the jurisdiction of the Sandiganbayan which is tasked to handle the ill- The exercise of the power is not shared with any other authority. Nor is its exercise subject to
gotten wealth cases must include the jurisdiction to determine whether or not the the approval or disapproval of another agency of government. The basic reason for vesting
PCGG exceeded its power to grant immunity pursuant to the provisions of the power exclusively on the PCGG lies in the principles of separation of power. The decision
Executive Order No.14. 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
It should also be noted that the respondent court has already acquired jurisdiction to try and higher objective. It is a deliberate renunciation of the right of the State to prosecute all who
decide Case No. 11960 where petitioners stand accused of violating RA 3019. It has started appear to be guilty of having committed a crime. Its justification lies in the particular need of
receiving the evidence of the prosecution against the petitioners. Petitioners, with the the State to obtain the conviction of the more guilty criminals who, otherwise, will probably
conformity of PCGG, then claimed their immunity via a motion to dismiss addressed to the elude the long arm of the law. Whether or not the delicate power should be exercised, who
respondent court. The motion to dismiss is thus a mere incident well within the jurisdiction should be extended the privilege, the timing of its grant, are questions addressed solely to
of the respondent court to resolve. 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.
The next issue is a finer and more difficult one, i.e., gauging the range of the power of the In reviewing the exercise of prosecutorial discretion in these areas, the jurisdiction of the
respondent court to review the exercise of discretion of the PCGG granting immunity to respondent court is limited. For the business of a court of justice is to be an impartial
petitioners pursuant to section 5 of E.O. No. 14, as amended. 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
Respondent court, thru the Solicitor General, pushes the proposition that said power of are not for neutral courts to rectify, any more than courts should correct the blunders of the
review is plenary in reach. It is urged that its plenitude and panoply empower the respondent defense. For fairness demands that courts keep the scales of justice at equipoise between
court to reverse the grant of immunity made by the PCGG by supplanting the latter's and among all litigants. Due process demands that courts should strive to maintain the legal
judgment. The submission will warrant the respondent court in examining the intrinsic playing field perfectly even and perpetually level.
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 Prescinding from these baseline propositions, we hold that in reviewing the grant of a section
property or properties in question. Likewise, it will give a warrant to the respondent court to 5 immunity made by the PCGG to the petitioners, the power of the respondents court can go
change the judgment made by the PCGG that the witness' information or testimony is no further than to pass upon its procedural regularity. The respondent court should only
"necessary" to ascertain or prove the guilt or civil liability of the respondent, defendant or ascertain: (a) whether the person claiming immunity has provided information or testimony
accused. 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
We are not prepared to concede the correctness of this proposition. Neither the text nor the would establish the unlawful manner in which the respondent, defendant or accused has
texture of E.O. No. 14, as amended, lends color to the suggested interpretation. Section 5 of acquired or accumulated the property or properties in question; and (c) whether in the bona
E.O. No. 14, as amended, vests no such role in respondent court. In instances, where the fide judgment of the PCGG, such information or testimony is necessary to ascertain or prove
intent is to endow courts of justice with the power to review and reverse tactical moves of the guilt or civil liability of the respondent, defendant or accused. Respondent court cannot
the prosecution, the law confers the power in clear and certain language. Thus, under section substitute its judgment to the discretion of the PCGG without involving itself in prosecution
9 of Rule 119, the prosecution in the exercise of its discretion may tactically decide to and without ceasing to be a court catering untilted justice.
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 Applying this standard, we hold that the respondent court committed grave abuse of
court if the prosecution fails to prove that it has satisfied the requirements of the rule on discretion when it denied petitioners' motion to dismiss based on a claim of immunity
discharge of a witness. The rule is crafted as to leave no iota of doubt on the power of the granted by the PCGG under section 5 of E.O. 14, as amended.
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
79
The records show that petitioners provided information to the PCGG relating to the We also rule that there was nothing irregular when PCGG granted a section 5 immunity to
prosecution of the RICO cases against the Marcoses in New York. They gave the information petitioners while they were already undergoing trial in Criminal Case No. 11960. Section 5 of
in the course of interviews conducted by PCGG lawyers Kendall and Severina Rivera and US E.O. 14, as amended, does not prohibit the PCGG from granting immunity to persons already
prosecutor Charles charged in court and undergoing trial. As long as the privilege of immunity so given will in the
La Bella. They collaborated with the prosecution. 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
Sec. 5 requires that the information should relate to "any case" which PCGG can prosecute as and releases one from liability, and as it inures to the benefit of an accused, it can be invoked
mandated by the Constitution and E.O. Nos. 1, 2, 14 and 14-A. It does not limit said at any time after its acquisition and before his final conviction. Our regard for the rights of an
information to be given only in a case where the informant is himself an accused or a accused dictates this result. Thus, we have consistently held that laws that decriminalize an
respondent. Such a reading adopted by the respondent court is unduly restrictive of the act or a grant of amnesty may be given retroactive effect. They constitute a bar against the
intendment of section 5 of E.O. further prosecution of their beneficiaries' regardless of the appearance of their guilt. To be
No. 14, as amended, even as it is clearly in contravention of its plain language. 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
It is also fairly established that the pieces of information given by the petitioners would in the against the petitioners in said criminal case. The records show that petitioners Mapa was
judgment of the PCGG, establish the "unlawful manner" with which the Marcoses acquired granted immunity not only because of the information he gave to the prosecution but also ".
or accumulated their properties and were "necessary" to prove their guilt. The totality of the . . in light of Republic's review of the cases both civil and criminal which it has filed or intends
circumstances of the case established this element. Thus, after their interview, the PCGG was to file against . . ." him. Similarly, petitioner Vergara was granted immunity ". . . in light of
obviously convinced of the evidentiary value of the information given by the petitioners. It Republic's reviewof Vergara's participation in Criminal Case No. 11960 . . . ." After reviewing
forthwith signed and sealed an agreement with petitioners extending them immunity from its evidence against the petitioners, PCGG appears to have sensed the sterility of its efforts of
prosecution. In the case of petitioner Mapa, "the Republic shall cause the dismissal or continuing their prosecution. Its former chairman, M.A.T. Caparas, learned that petitioners
exclusion of MAPA as party defendant or respondent in all PCGG initiated civil cases and would file a Motion to Dismiss Criminal Case No. 11960 after PCGG rest its evidence, "for
criminal proceeding or investigation." In the case of petitioner Vergara, "the Republic shall failure of the prosecution to prove its case." In his May 16, 1990 letters to the petitioners, he
cause the dismissal of Vergara from Criminal Case No. 11960." This commitment was assured them that "we shall . . . offer no objection to its favorable consideration." This is a
reiterated by former Chairman Mateo Caparas of PCGG in his May 16, 1990 letters to the patent admission that petitioners' Motion to Dismiss has merit and that the PCGG cannot
petitioners, as related above. The parties' agreements were then implemented. Petitioners prove its case against the petitioners in Criminal Case No. 11960.
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 Finally, we reject respondent court's ruling that the grant of section 5 immunity must be
that the pieces of information given by petitioners would establish the "unlawful manner" strictly construed against the petitioners. It simplistically characterized the grant as special
with which the Marcoses acquired their wealth. privilege, as if it was gifted by the 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-
Contrary to the ruling of the respondent court, the failure of petitioners to testify in the RICO vis immunity statutes.
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 The days of inquisitions brought about the most despicable abuses against human rights. Not
of E.O. No. 14, as amended, their duty was to give information to the prosecution, and they the least of these abuses is the expert use of coerced confessions to send to the guillotine
did. Under their Memorandum of Agreement, they promised to make themselves available even the guiltless. To guard against the recurrence of this totalitarian method, the right
as witnesses in the said RICO cases, and they did. Petitioners were ready to testify but they against self-incrimination was ensconced in the fundamental laws of all civilized countries.
were not called to testify by the US prosecutors of the RICO case. Their failure to testify was Over the years, however, came the need to assist government in its task of containing crime
not of their own making. It was brought about by the decision of the US prosecutors who for peace and order is a necessary matrix of public welfare. To accommodate
may have thought that their evidence was enough to convict the Marcoses. Since petitioners' the need, the right against self-incrimination was stripped of its absoluteness. Immunity
failure to testify was not of their own choosing nor was it due to any fault of their own, statutes in varying shapes were enacted which would allow government to compel a witness
justice and equity forbid that they be penalized by the withdrawal of their immunity. Indeed, to testify despite his plea of the right
initially, the PCGG itself adopted the posture that the immunity of petitioners stayed and against self-incrimination. To insulate these statutes from the virus of unconstitutionality, a
should not be disturbed. It joined the motion to dismiss filed by petitioners in the respondent witness is given what has come to be known as transactional or a use-derivative-use
court. When the respondent court denied the motion, PCGG stuck to its previous position as immunity, as heretofore discussed. Quite clearly, these immunity statutes are not a bonanza
it again joined the petitioners in their motion for reconsideration. It is only in this petition for from government. Those given the privilege of immunity paid a high price for it — the
review on certiorari that PCGG, after a change of Chairman, flip-flopped in its position. surrender of their precious right to be silent. Our hierarchy of values demands that the right

80
against self-incrimination and the right to be silent should be accorded greater respect and HONORABLE JUDGE ERNANI C. PAÑ;O Regional Trial Court, Quezon City, Branch LXXXVIII,
protection. Laws that tend to erode the force of these preeminent rights must necessarily be HONORABLE CITY FISCAL OF QUEZON CITY, respondents.
given a liberal interpretation in favor of the individual. The government has a right to solve
crimes but it must do it, rightly. G.R. No. 75122-49 December 18, 1986

IN VIEW WHEREOF, the resolutions of the respondent court dated March 7, and June 3, 1991 ELINOR ABAD, petitioner,
are annulled and set aside and the Amended Information against the petitioners in Criminal vs.
Case No. 11960 is ordered dismissed. No costs. 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
SO ORDERED. JR., in his capacity as Trial Fiscal Regional Trial Court, Branch 139, Makati, respondents.

Republic of the Philippines G.R No. 75812-13 December 18, 1986


SUPREME COURT
Manila AMABLE R. AGUILUZ VII and SYLVIA V. AGUILUZ, spouses, petitioners,
vs.
EN BANC 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
G.R. No. L-63419 December 18, 1986 Manila, respondent.

FLORENTINA A. LOZANO, petitioner, G.R No. 75765-67 December 18, 1986


vs.
THE HONORABLE ANTONIO M. MARTINEZ, in his capacity as Presiding Judge, Regional Trial LUIS M. HOJAS, petitioner,
Court, National Capital Judicial Region, Branch XX, Manila, and the HONORABLE JOSE B. vs.
FLAMINIANO, in his capacity as City Fiscal of Manila, respondents. HON. JUDGE SENEN PENARANDA, Presiding Judge, Regional Trial Court of Cagayan de Oro
City, Branch XX, HONORABLE JUDGE ALFREDO LAGAMON, Presiding Judge, Regional Trial
G.R. No. L-66839-42 December 18, 1986 Court of Cagayan de Oro City, Branch XXII, HONORABLE CITY FISCAL NOLI T. CATHI, City
Fiscal of Cagayan de Oro City, respondents.
LUZVIMINDA F. LOBATON petitioner,
vs. G.R. No. 75789 December 18, 1986
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 THE PEOPLE OF THE PHILIPPINES, petitioner,
BATANGAS, and MARIA LUISA TORDECILLA, respondents. vs.
HON. DAVID G. NITAFAN, Presiding Judge, Regional Trial Court, National Capital Judicial
G.R No. 71654 December 18, 1986 Region, Branch 52, Manila and THELMA SARMIENTO, respondents.

ANTONIO DATUIN and SUSAN DATUIN, petitioners, R.R. Nogales Law Office for petitioner in G.R. No. 63419, G.R. Nos. 74524-25, G.R. Nos. 75812-
vs. 13, G.R. Nos. 75765-67 and counsel for respondent in G.R. No. 75789.
HONORABLE JUDGE ERNANI C. PANO, Regional Trial Court, Quezon City, Branch LXXXVIII,
HONORABLE ClTY FISCAL OF QUEZON CITY, respondents. Pio S. Canta for petitioner in G.R. Nos. 66839-42.

G.R. No. 74524-25 December 18, 1986 Hermogenes Datuin, Jr. for petitioner in G.R. No. 71654.

OSCAR VIOLAGO, petitioner, Abinoja, Tabalingcos, Villalon & Associates for petitioner in G.R. Nos. 75122-49.
vs.

81
The Solicitor General for respondent in G.R. No. 63419, G.R. Nos. 66839-42, G.R. No. 71654, check nor more than double said amount, but in no case to exceed P200,000.00, or both such
G.R. Nos. 74524-25, G.R. Nos. 75122-49, G.R. Nos. 75812-13, G.R. Nos. 75765-67 and counsel fine and imprisonment at the discretion of the court. 3
for petitioner in G.R. No. 75789.
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
YAP, J.: within a period of ninety (90) days from the date appearing thereon, for which reason it is
dishonored by the drawee bank. 4
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 An essential element of the offense is "knowledge" on the part of the maker or drawer of the
these petitions for decision. The question is definitely one of first impression in our check of the insufficiency of his funds in or credit with the bank to cover the check upon its
jurisdiction. 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
These petitions arose from cases involving prosecution of offenses under the statute. The refused by the drawee because of insufficient funds in or credit with such bank when
defendants in those cases moved seasonably to quash the informations on the ground that presented within ninety (90) days from the date of the check. 5 To mitigate the harshness of
the acts charged did not constitute an offense, the statute being unconstitutional. The the law in its application, the statute provides that such presumption shall not arise if within
motions were denied by the respondent trial courts, except in one case, which is the subject five (5) banking days from receipt of the notice of dishonor, the maker or drawer makes
of G. R. No. 75789, wherein the trial court declared the law unconstitutional and dismissed arrangements for payment of the check by the bank or pays the holder the amount of the
the case. The parties adversely affected have come to us for relief. check.

As a threshold issue the former Solicitor General in his comment on the petitions, maintained Another provision of the statute, also in the nature of a rule of evidence, provides that the
the posture that it was premature for the accused to elevate to this Court the orders denying introduction in evidence of the unpaid and dishonored check with the drawee bank's refusal
their motions to quash, these orders being interlocutory. While this is correct as a general to pay "stamped or written thereon or attached thereto, giving the reason therefor, "shall
rule, we have in justifiable cases intervened to review the lower court's denial of a motion to constitute prima facie proof of "the making or issuance of said check, and the due
quash. 1 In view of the importance of the issue involved here, there is no doubt in our mind presentment to the drawee for payment and the dishonor thereof ... for the reason written,
that the instant petitions should be entertained and the constitutional challenge to BP 22 stamped or attached by the drawee on such dishonored check." 6
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 The presumptions being merely prima facie, it is open to the accused of course to present
a delay in the disposition of cases involving the enforcement of the statute. proof to the contrary to overcome the said presumptions.

For the purpose of resolving the constitutional issue presented here, we do not find it II
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 BP 22 is aimed at putting a stop to or curbing the practice of issuing checks that are
of checks, whether present dated or postdated, or whether issued in payment of pre-existing worthless, i.e. checks that end up being rejected or dishonored for payment. The practice, as
obligations or given in mutual or simultaneous exchange for something of value. discussed later, is proscribed by the state because of the injury it causes to t public interests.

I 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
BP 22 punishes a person "who makes or draws and issues any check on account or for value, within the context of crimes against property punished as "estafa" or crimes involving fraud
knowing at the time of issue that he does not have sufficient funds in or credit with the and deceit. The focus of these penal provisions is on the damage caused to the property
drawee bank for the payment of said check in full upon presentment, which check is rights of the victim.
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, The Penal Code of Spain, which was in force in the Philippines from 1887 until it was replaced
ordered the bank to stop payment." The penalty prescribed for the offense is imprisonment by the Revised Penal Code in 1932, contained provisions penalizing, among others, the act of
of not less than 30 days nor more than one year or a fine or not less than the amount of the defrauding another through false pretenses. Art. 335 punished a person who defrauded
another "by falsely pretending to possess any power, influence, qualification, property,
82
credit, agency or business, or by means of similar deceit." Although no explicit mention was With the intention of remedying the situation and solving the problem of how to bring
made therein regarding checks, this provision was deemed to cover within its ambit the checks issued in payment of pre-existing debts within the ambit of Art. 315, an amendment
issuance of worthless or bogus checks in exchange for money. 7 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:
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 (d) By postdating a check, or issuing a check in payment of an obligation when the
to the issuance of worthless checks. The amendment penalized any person who 1) issues a offender had no funds in the bank, or his funds deposited therein were not
check in payment of a debt or for other valuable consideration, knowing at the time of its sufficient to cover the amount of the check. The failure of the drawer of the check
issuance that he does not have sufficient funds in the bank to cover its amount, or 2) to deposit the amount necessary to cover his check within three (3) days from
maliciously signs the check differently from his authentic signature as registered at the bank receipt of notice from the bank and/or the payee or holder that said check has
in order that the latter would refuse to honor it; or 3) issues a postdated check and, at the been dishonored for lack or insufficiency of funds shall be puma facie evidence of
date set for its payment, does not have sufficient deposit to cover the same.8 deceit constituting false pretense or fraudulent act.

In 1932, as already adverted to, the old Penal Code was superseded by the Revised Penal However, the adoption of the amendment did not alter the situation materially. A divided
Code. 9 The above provisions, in amended form, were incorporated in Article 315 of the Court held in People vs. Sabio, Jr. 12 that Article 315, as amended by Republic Act 4885, does
Revised Penal Code defining the crime of estafa. The revised text of the provision read as not cover checks issued in payment of pre-existing obligations, again relying on the concept
follows: 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.
Art. 315. Swindling (estafa).—Any person who shall defraud another by any of the
means mentioned hereinbelow shall be punished by: 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
xxx xxx xxx cope with the real problem and to deal effectively with the evil that it was intended to
eliminate or minimize.
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: 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
(a) By using fictitious name, or falsely pretending to possess power, dealing with the problem of bouncing or worthless checks, without attaching the law's
influence, qualifications, property, credit, agency, business or imaginary umbilical cord to the existing penal provisions on estafa. BP 22 addresses the problem
transactions, or by means of other similar deceits; directly and frontally and makes the act of issuing a worthless check malum prohibitum. 14

xxx xxx xxx The question now arises: Is B P 22 a valid law?

(d) By postdating a check, or issuing a check in payment of an obligation Previous efforts to deal with the problem of bouncing checks within the ambit of the law on
the offender knowing that at the time he had no funds in the bank, or the estafa did not evoke any constitutional challenge. In contrast, BP 22 was challenged
funds deposited by him were not sufficient to cover the amount of the promptly.
cheek without informing the payee of such circumstances.
Those who question the constitutionality of BP 22 insist that: (1) it offends the constitutional
The scope of paragraph 2 (d), however, was deemed to exclude checks issued in payment of provision forbidding imprisonment for debt; (2) it impairs freedom of contract; (3) it
pre-existing obligations. 10 The rationale of this interpretation is that in estafa, the deceit contravenes the equal protection clause; (4) it unduly delegates legislative and executive
causing the defraudation must be prior to or simultaneous with the commission of the fraud. powers; and (5) its enactment is flawed in that during its passage the Interim Batasan
In issuing a check as payment for a pre-existing debt, the drawer does not derive any violated the constitutional provision prohibiting amendments to a bill on Third Reading.
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 The constitutional challenge to BP 22 posed by petitioners deserves a searching and
not defrauded by means of any "prior" or "simultaneous" deceit perpetrated on him by the thorough scrutiny and the most deliberate consideration by the Court, involving as it does
drawer of the check. the exercise of what has been described as "the highest and most delicate function which
belongs to the judicial department of the government." 15
83
As we enter upon the task of passing on the validity of an act of a co-equal and coordinate upon the defendant for the wrong he has done and are considered as punishment, nor to
branch of the government, we need not be reminded of the time-honored principle, deeply fines and penalties imposed by the courts in criminal proceedings as punishments for crime."
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 The law involved in Ganaway was not a criminal statute but the Code of Procedure in Civil
with diffidence or timidity. Where it is clear that the legislature has overstepped the limits of Actions (1909) which authorized the arrest of the defendant in a civil case on grounds akin to
its authority under the constitution we should not hesitate to wield the axe and let it fall those which justify the issuance of a writ of attachment under our present Rules of Court,
heavily, as fall it must, on the offending statute. 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
III 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,
Among the constitutional objections raised against BP 22, the most serious is the alleged however, refrained from declaring the statutory provision in question unconstitutional.
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 Closer to the case at bar is People v. Vera Reyes,23 wherein a statutory provision which made
states, "No person shall be imprisoned for debt or non-payment of a poll tax." 16 Petitioners illegal and punishable the refusal of an employer to pay, when he can do so, the salaries of
insist that, since the offense under BP 22 is consummated only upon the dishonor or non- his employees or laborers on the fifteenth or last day of every month or on Saturday every
payment of the check when it is presented to the drawee bank, the statute is really a "bad week, was challenged for being violative of the constitutional prohibition against
debt law" rather than a "bad check law." What it punishes is the non-payment of the check, imprisonment for debt. The constitutionality of the law in question was upheld by the Court,
not the act of issuing it. The statute, it is claimed, is nothing more than a veiled device to it being within the authority of the legislature to enact such a law in the exercise of the police
coerce payment of a debt under the threat of penal sanction. 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
First of all it is essential to grasp the essence and scope of the constitutional inhibition agreed upon for their services, thus causing them financial difficulties. "The law was viewed
invoked by petitioners. Viewed in its historical context, the constitutional prohibition against not as a measure to coerce payment of an obligation, although obviously such could be its
imprisonment for debt is a safeguard that evolved gradually during the early part of the effect, but to banish a practice considered harmful to public welfare.
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 IV
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 Has BP 22 transgressed the constitutional inhibition against imprisonment for debt? To
breach of a contract could be enforced against the person or body of the debtor by writ of answer the question, it is necessary to examine what the statute prohibits and punishes as an
capias ad satisfaciendum. By means of this writ, a debtor could be seized and imprisoned at offense. Is it the failure of the maker of the check to pay a debt? Or is it the making and
the instance of the creditor until he makes the satisfaction awarded. As a consequence of the issuance of a worthless check in payment of a debt? What is the gravamen of the offense?
popular ground swell against such a barbarous practice, provisions forbidding imprisonment This question lies at the heart of the issue before us.
for debt came to be generally enshrined in the constitutions of various states of the Union. 17
The gravamen of the offense punished by BP 22 is the act of making and issuing a worthless
This humanitarian provision was transported to our shores by the Americans at the turn of check or a check that is dishonored upon its presentation for payment. It is not the non-
t0he century and embodied in our organic laws. 18 Later, our fundamental law outlawed not payment of an obligation which the law punishes. The law is not intended or designed to
only imprisonment for debt, but also the infamous practice, native to our shore, of throwing coerce a debtor to pay his debt. The thrust of the law is to prohibit, under pain of penal
people in jail for non-payment of the cedula or poll tax. 19 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
The reach and scope of this constitutional safeguard have been the subject of judicial punishes the act not as an offense against property, but an offense against public order.
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 Admittedly, the distinction may seem at first blush to appear elusive and difficult to
covered by the constitutional guaranty has a well-defined meaning. Organic provisions conceptualize. But precisely in the failure to perceive the vital distinction lies the error of
relieving from imprisonment for debt, were intended to prevent commitment of debtors to those who challenge the validity of BP 22.
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 It may be constitutionally impermissible for the legislature to penalize a person for non-
therein do not arise from any contract entered into between the parties but are imposed payment of a debt ex contractu But certainly it is within the prerogative of the lawmaking
84
body to proscribe certain acts deemed pernicious and inimical to public welfare. Acts mala in constitute the funds against which among others, commercial papers like checks, are drawn.
se are not the only acts which the law can punish. An act may not be considered by society as The magnitude of the amount involved amply justifies the legitimate concern of the state in
inherently wrong, hence, not malum in se but because of the harm that it inflicts on the preserving the integrity of the banking system. Flooding the system with worthless checks is
community, it can be outlawed and criminally punished as malum prohibitum. The state can like pouring garbage into the bloodstream of the nation's economy.
do this in the exercise of its police power.
The effects of the issuance of a worthless check transcends the private interests of the
The police power of the state has been described as "the most essential, insistent and parties directly involved in the transaction and touches the interests of the community at
illimitable of powers" which enables it to prohibit all things hurtful to the comfort, safety and large. The mischief it creates is not only a wrong to the payee or holder, but also an injury to
welfare of society. 24 It is a power not emanating from or conferred by the constitution, but the public. The harmful practice of putting valueless commercial papers in circulation,
inherent in the state, plenary, "suitably vague and far from precisely defined, rooted in the multiplied a thousand fold, can very wen pollute the channels of trade and commerce, injure
conception that man in organizing the state and imposing upon the government limitations the banking system and eventually hurt the welfare of society and the public interest. As
to safeguard constitutional rights did not intend thereby to enable individual citizens or aptly stated — 30
group of citizens to obstruct unreasonably the enactment of such salutary measures to
ensure communal peace, safety, good order and welfare." 25 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
The enactment of BP 22 is a declaration by the legislature that, as a matter of public policy, him in the same category with the honest man who is unable to pay his debts, and
the making and issuance of a worthless check is deemed public nuisance to be abated by the for whom the constitutional inhibition against' imprisonment for debt, except in
imposition of penal sanctions. cases of fraud was intended as a shield and not a sword.

It is not for us to question the wisdom or impolicy of the statute. It is sufficient that a In sum, we find the enactment of BP 22 a valid exercise of the police power and is not
reasonable nexus exists between means and end. Considering the factual and legal repugnant to the constitutional inhibition against imprisonment for debt.
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 This Court is not unaware of the conflicting jurisprudence obtaining in the various states of
bouncing checks per day was close to 200 million pesos, and thereafter when overdrafts the United States on the constitutionality of the "worthless check" acts. 31 It is needless to
were banned by the Central Bank, it averaged between 50 minion to 80 million pesos a warn that foreign jurisprudence must be taken with abundant caution. A caveat to be
day. 26 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
By definition, a check is a bill of exchange drawn on a bank and payable on demand. 27 It is a 22 was not lifted bodily from any existing statute. Furthermore, we have to consider that
written order on a bank, purporting to be drawn against a deposit of funds for the payment judicial decisions must be read in the context of the facts and the law involved and, in a
of all events, of a sum of money to a certain person therein named or to his order or to cash broader sense, of the social economic and political environment—in short, the milieu—under
and payable on demand. 28 Unlike a promissory note, a check is not a mere undertaking to which they were made. We recognize the wisdom of the old saying that what is sauce for the
pay an amount of money. It is an order addressed to a bank and partakes of a representation goose may not be sauce for the gander.
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 As stated elsewhere, police power is a dynamic force that enables the state to meet the
assurance that the instrument wig be paid upon presentation. For this reason, checks have exigencies of changing times. There are occasions when the police power of the state may
become widely accepted as a medium of payment in trade and commerce. Although not even override a constitutional guaranty. For example, there have been cases wherein we
legal tender, checks have come to be perceived as convenient substitutes for currency in held that the constitutional provision on non-impairment of contracts must yield to the
commercial and financial transactions. The basis or foundation of such perception is police power of the state. 32 Whether the police power may override the constitutional
confidence. If such confidence is shakes the usefulness of checks as currency substitutes inhibition against imprisonment for debt is an issue we do not have to address. This bridge
would be greatly diminished or may become nit Any practice therefore tending to destroy has not been reached, so there is no occasion to cross it.
that confidence should be deterred for the proliferation of worthless checks can only create
havoc in trade circles and the banking community. We hold that BP 22 does not conflict with the constitutional inhibition against imprisonment
for debt.
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 V
two. 29 These de deposit thirds consists of currency in circulation. ma deposits in the banks
85
We need not detain ourselves lengthily in the examination of the other constitutional Reading (the amendment period), amendments were proposed orally and approved by the
objections raised by petitioners, some of which are rather flimsy. 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
We find no valid ground to sustain the contention that BP 22 impairs freedom of contract. clear from the records that the text of the second paragraph of Section 1 of BP 22 is the text
The freedom of contract which is constitutionally protected is freedom to enter into "lawful" which was actually approved by the body on Second Reading on February 7, 1979, as
contracts. Contracts which contravene public policy are not lawful. 33 Besides, we must bear reflected in the approved Minutes for that day. In any event, before the bin was submitted
in mind that checks can not be categorized as mere contracts. It is a commercial instrument for final approval on Third Reading, the Interim Batasan created a Special Committee to
which, in this modem day and age, has become a convenient substitute for money; it forms investigate the matter, and the Committee in its report, which was approved by the entire
part of the banking system and therefore not entirely free from the regulatory power of the body on March 22, 1979, stated that "the clause in question was ... an authorized
state. 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 petitioners'
Neither do we find substance in the claim that the statute in question denies equal claim that in the enactment of BP 22 the provisions of Section 9 (2) of Article VIII of the 1973
protection of the laws or is discriminatory, since it penalizes the drawer of the check, but not Constitution were violated.
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 WHEREFORE, judgment is rendered granting the petition in G.R. No. 75789 and setting aside
the check there would be no crime. This argument is tantamount to saying that, to give equal the order of the respondent Judge dated August 19, 1986. The petitions in G.R. Nos. 63419,
protection, the law should punish both the swindler and the swindled. The petitioners' 66839-42, 71654, 74524-25, 75122-49, 75812-13 and 75765-67 are hereby dismissed and the
posture ignores the well-accepted meaning of the clause "equal protection of the laws." The temporary restraining order issued in G.R. Nos. 74524-25 is lifted. With costs against private
clause does not preclude classification of individuals, who may be accorded different petitioners.
treatment under the law as long as the classification is no unreasonable or arbitrary. 34
SO ORDERED.
It is also suggested that BP 22 constitutes undue or improper 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 Republic of the Philippines
applied to the present case, the power to define the offense sought to be punished and to SUPREME COURT
prescribe the penalty. By no stretch of logic or imagination can it be said that the power to Manila
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 THIRD DIVISION
remotely, as undue delegation of executive power. The suggestion that the statute
unlawfully delegates its enforcement to the offended party is farfetched. G.R. No. L-80838 November 29, 1988

Lastly, the objection has been raised that Section 9 (2) of Article VII of the 1973 Constitution ELEUTERIO C. PEREZ, petitioner,
was violated by the legislative body when it enacted BP 22 into law. This constitutional vs.
provision prohibits the introduction of amendments to a bill during the Third Reading. It is COURT OF APPEALS and THE PEOPLE OF THE PHILIPPINES, respondents.
claimed that during its Third Reading, the bill which eventually became BP 22 was amended
in that the text of the second paragraph of Section 1 of the bill as adopted on Second
Esteban C. Manuel for petitioner.
Reading was altered or changed in the printed text of the bill submitted for approval on Third
Reading.
The Solicitor General for respondents.
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 CORTES, J.:

86
Petitioner Eleuterio Perez raises both procedural and substantive issues in this petition to giving this court jurisdiction over applications for writs of certiorari and prohibition
review the decision of respondent Court of Appeals in CA-G.R. CR No. 04789 dated October "whether or not in aid of its appellate jurisdiction," was never meant to authorize
8, 1987 and its resolution of November 12, 1987 denying his motion for reconsideration. the filing of petitions which, conformably to Rule 65, Sec. 4, should be filed with the
Regional Trial Courts because they relate to acts of inferior courts. The purpose of
The facts of this case are undisputed. BP 129 is to enable this Court to take cognizance of petitions which, because of the
limitation imposed by the requirement that the petition must be "in aid of its
On October 21, 1974 Yolanda Mendoza filed a criminal complaint against Eleuterio Perez for appellate jurisdiction" could or only be filed before with the Supreme Court
Consented Abduction docketed as Criminal Case No. 618 of the Court of First Instance of (Diocese of Cabanatuan v. Delizo, AC-G.R. SP No. 06410, Oct. 28, 1985; Uy v.
Pampanga, Branch VI. The accused pleaded not guilty and trial on the merits ensued. On June Antonio, AC G.R R. SP No. 05568, March 7, 1985; De Guzman v. Andres, AC-G.R. SP
28, 1980 a judgment of conviction was rendered against Perez. No. 04494, Oct. 25, 1984). [Rollo p. 70.]

On appeal, the Court of Appeals reversed, and acquitted Perez of the crime of Consented Complying with this, Perez filed a petition for certiorari and prohibition with the Regional
Abduction. In said decision, promulgated on October 29, 1982, the Court of Appeals made Trial Court of Pampanga docketed as Special Civil Case No. 7623. Upon evaluation of the
the following statement: case, the court dismissed this petition and Perez' motion for reconsideration.

xxx xxx xxx Petitioner Perez thereafter filed a petition for review with the Court of Appeals. In a decision
dated October 8, 1987 this petition was denied, being inappropriate, aside from the fact that
This is not to say that the appellant did nothing wrong. With promises of marriage, the decision sought to be reviewed had become final and executory. As explained by the
appellant succeeded in having sexual intercourse with her, twice, that night before Court of Appeals:
they returned. She was seduced by appellant, as it turned out that he made those
promises just to accomplish his lewd designs That was "seduction xxx xxx xxx
and not abduction," as explained by Justice Ramon Aquino. (Rollo, p. 40.)
... it is to be observed that what petitioner filed in the Regional Trial Court was an
xxx xxx xxx original petition for certiorari and prohibition which was dismissed by the Regional
Trial Court of San Fernando, Pampanga. The appropriate remedy for such dismissal
Subsequent to petitioner's acquittal complainant Yolanda Mendoza filed another criminal is an appeal from said decision (by filing a notice of appeal with the RTC
complaint against Perez on July 22, 1983, this time for Qualified Seduction, docketed as concerned), and not a petition for review. Under the 1983 Interim Rules of Court,
Criminal Case No. 83-8228 of the Municipal Trial Court of Pampanga, Branch VI. * Petitioner all appeals, except in habeas corpus cases and in the cases where a record on
Perez filed a motion to quash invoking double jeopardy and waiver and/or estoppel on the appeal is required, must be taken within fifteen (15) days from notice of the
part of the complainant. However, this motion and petitioner's motion for reconsideration judgment, order, resolution or award appealed from. (par. 19).<äre||anº•1àw> An
were denied. appeal from the Regional Trial Courts to the Court of Appeals in actions or
proceedings originally filed in the former shall be taken by filing a notice of
Whereupon, petitioner Perez filed a petition for certiorari and prohibition with the Supreme appeal with the court that rendered the judgment or order appealed from (par. 20,
Court docketed as G.R. No. 68122 questioning the denial of his motions to quash and for 1983 Interim Rules of Court) ...
reconsideration filed with the Municipal Trial Court in Criminal Case No.
83-8228. In a resolution of the Second Division dated August 8, 1984, the Court referred the For not having filed a notice of appeal with the Regional Trial Court of San
case to the Intermediate Appellate Court. Fernando, Pampanga, the decision of said court in the petition for certiorari and
prohibition ... has become final and executory (CIR v. Visayan Electric Co., 19 SCRA
On December 16, 1985 the Intermediate Appellate Court dismissed the petition, without 696, 698) on July 12, 1987, fifteen (15) days after receipt by petitioner of the
prejudice to its refiling in the proper Regional Trial Court. Said the Intermediate Appellate decision of said court on May 18, 1987, deducting the period during which his
Court: motion for reconsideration of said decision was pending resolution before said
court. ... Petitioner might plead liberality in the interpretation of the rules of
procedure, but this plea cannot be conceded because it involves the appellate
As the order sought to be annulled is that of an inferior court, the petition in this
jurisdiction of this Court. It has been repeatedly held that compliance with the
case should have been filed with the appropriate Regional Trial Court in accordance
manner and period for perfecting an appeal is mandatory and jurisdictional
with Rule 65, Sec. 4. We have already ruled in several cases that BP 129, See. 9, in
Garganta vs. Cabangon, 109 Phil. 150 [1960]; Bilbao vs. Republic, 80 SCRA, 177
87
[1977]; Volkschen Labor Union vs. National Labor Relations Commission, 98 SCRA From a denial of a petition for certiorari and prohibition by the trial court, as in this case, the
314, 322 [1980]) [Rollo, pp. 93-94.] losing party's remedy is an ordinary appeal to the Court of Appeals by filing a notice of appeal
with the court that rendered the judgment or order appealed from [Sec. 20, Interim Rules of
Petitioner's motion for reconsideration was denied. Hence, this petition for review. Court.] Failure to appeal within fifteen (15) days from rendition of judgment renders the
appealed decision final and executory.
I. Petitioner claims that what he filed with the Regional Trial Court was not an original
petition for certiorari and prohibition but an appeal from the resolutions of the Municipal A petition for review of a judgment of the regional trial court is proper only when the
Trial Court in Criminal Case No. 83-8228 denying his motions to quash and for judgment sought to be reviewed is an appeal from the final judgment or order of a municipal,
reconsideration. Hence, when the Regional Trial Court dismissed his certiorari and metropolitan or municipal circuit trial court [Sec. 22 (b), Interim Rules of Court].
prohibition case, he invoked the proper remedy which is a petition for review.
Petitioner likewise faults the respondent Court of Appeals for dismissing his petition for
There is no merit in petitioner's claim. certiorari which "gave rise to the confusion caused by the case being tossed around from one
court to another ending in its dismissal on mere technicality, thereby depriving [him] of his
Well-established is the rule that appeal is not the proper remedy from a denial of a motion to right to constitutional due process" [Rollo, p. 133.]
quash [People v. Macandog, G.R. Nos. 18601-2, January 31, 1963, 7 SCRA 195; Newsweek,
Inc. v. Intermediate Appellate Court, G.R. No. 63559, May 30, 1986,142 SCRA 171; Milo v. Petitioner's assertion that he was consequently denied due process in unfounded.
Salanga, G.R. No. 37007, July 20, 1987, 152 SCRA 113.] This is so because an order denying a Respondent court did not foreclose his right to seek his remedy elsewhere as it is clear from
motion to quash is an interlocutory order and does not finally dispose of a case. Under the its decision that "the petition for certiorari and prohibition is DISMISSED, without prejudice
Rules on Criminal Procedure prior to its amendment in 1985, ** after the denial of to its refiling in the proper Regional Trial Court" [Rollo. p. 70.] Thus, petitioner was never
defendant's motion to quash, he should immediately enter his plea and go to trial and, if denied recourse to the appropriate court. On the contrary, the Intermediate Appellate Court
convicted, raise on appeal the same question covered by his motion to quash [See Sec. 1 of pointed the direction for petitioner to take.
Rule 117 of the Rules of Court and Chuatoco v. Aragon, G.R. No. 20316, January 30, 1 968, 22
SCRA 346.] II. Petitioner invokes double jeopardy to question the filing against him of an information for
Qualified Seduction after he was acquitted for Consented Abduction.
Further, the record shows that what petitioner actually filed was a special civil action for
certiorari and prohibition as evidenced by his prayer for (1) the annulment and setting aside The rule on double jeopardy is that, "No person shall be twice put in jeopardy of punishment
of the municipal trial judge's resolutions of April 11, 1984 and June 11, 1984 denying his for the same offense" [Article IV, Sec. 22 of the 1973 Constitution, Article III, Sec 21 of the
motions to quash and for reconsideration, respectively, and, (2) the prohibition of the same 1987 Constitution.] The term "same offense" means Identical offense or any attempt to
judge from further taking cognizance of the criminal case for Qualified Seduction [Annexes commit the same or frustration thereof or any offense which necessarily includes or is
"K" and "L".] necessarily included in the offense charged in the former complaint or information. The rule
on double jeopardy under the Rules of Court is explicit:
A special civil action for certiorari is an original or independent action and not a continuation
or a part of the trial resulting in the rendition of the judgment complained of [Palomares v. Sec. 7. Former conviction or acquittal; double jeopardy.—When an
Jimenez, 90 Phil. 773, 776 (1952).] The same holds true in case of a special civil action for accused has been convicted or acquitted, or the case against him
prohibition. These writs may be issued by the Supreme Court, the Court of Appeals and the dismissed or otherwise terminated without his express consent by a
Regional Trial Court [Art. X, Sec. 5 (1) of the 1987 Constitution and Secs. 9 (1) and 21 (1) of court of competent jurisdiction, upon a valid complaint or information or
Batas Pambansa Blg. 129.] other formal charge sufficient in form and substance to sustain a
conviction and after the accused had pleaded to the charge, the
In a special civil action for certiorari, the petitioner seeks to annul or modify the proceedings conviction or acquittal of the accused or the dismissal of the case shall be
of any tribunal, board, or officer exercising judicial functions that has acted without or in a bar to another prosecution for the offense charged, or for any attempt
excess of jurisdiction, or with grave abuse of discretion [Rule 65, sec. 1.] On the other hand, to commit the same or frustration thereof, or for any offense which
in a petition for prohibition directed against any tribunal, corporation, board, or person necessarily includes or is necessarily included in the offense charged in
whether exercising judicial or ministerial functions who has acted without or in excess of the former complaint or information. [Sec. 9, Rule 117 of the Rules of
jurisdiction or with grave abuse of discretion, the petitioner prays that judgment be rendered Court Procedure, now Sec. 7, Rule 117 of the 1985 Rules on Criminal
commanding the respondent to desist from further proceeding in the action or matter Procedure.]
specified in the petition [Rule 65, Sec. 2]
88
xxx xxx xxx An examination of the elements of these two crimes would show that although they may
have arisen from the same set of facts, they are not Identical offenses as would make
There is no question that petitioner was validly charged with the crime of Consented applicable the rule on double jeopardy.
Abduction before a court of competent jurisdiction. That he had been arraigned and had
pleaded not guilty to the charge for which he was subsequently acquitted is likewise There are similar elements between Consented Abduction and Qualified Seduction, namely:
undisputed. In the case at bar, the only issue posed by petitioner relates to the Identity of (1) that the offended party is a virgin, and, (2) that she must be over twelve (12) and under
the two offenses of Consented Abduction and Qualified Seduction. eighteen (18) years of age. However, two elements differentiate the two crimes. Consented
Abduction, in addition to the two common elements, requires that: (1) the taking away of the
In support of his argument that the filing of the subsequent information for Qualified offended party must be with her consent, after solicitation or cajolery from the offender,
Seduction is barred by his acquittal in the case for Consented Abduction, petitioner maintains and, (2) the taking away of the offended party must be with lewd designs. On the other hand,
that since the same evidence would support charges for both offenses a trial and conviction an information for Qualified Seduction also requires that: (1) the crime be committed by
for one, after he was acquitted for the other, would constitute double jeopardy. Stated abuse of authority, confidence or relationship, and, (2) the offender has sexual intercourse
otherwise, petitioner would rely on the "same evidence" test in support of his claim of with the woman.
double jeopardy.
Moreover, the very nature of these two offenses would negate any Identity between them.
It is true that the two offenses for which petitioner was charged arose from the same facts. As this Court has stated:
This, however, does not preclude the filing of another information against him if from those
facts, two distinct offenses, each requiring different elements, arose. As this Court stated: xxx xxx xxx

xxx xxx xxx ... the gravamen of the offense of the abduction of a woman with her own consent,
who is still under the control of her parents or guardians is "the alarm and
A single act may be an offense against two statutes and if each statute requires perturbance to the parents and family" of the abducted person, and the
proof of an additional fact which the other does not, an acquittal or conviction infringement of the rights of the parent or guardian. But-in cases of seduction, the
under either statute does not exempt the defendant from prosecution and gravamen of the offense is the wrong done the young woman who is seduced. ...
conviction under the other. [U.S. v. Capurro, 7 Phil. 24, 34 (9106) citing In re Hans [U.S. v. Jayme, 24 Phil. 90, 94 (1913).]
Neilsen (131 U.S. 176); Emphasis supplied.]
xxx xxx xxx
xxx xxx xxx
III. Finally, petitioner avers that the complaint for Qualified Seduction is barred by waiver
The plea of double jeopardy cannot therefore be accorded merit, as the two and/or estoppel on the part of Yolanda Mendoza, the latter having opted to consider the
indictments are perfectly distinct in point of law howsoever closely they may appear case as Consented Abduction. He also alleges that her delay of more than nine (9) years
to be connected in fact. It is a cardinal rule that the protection against double before filing the second case against him is tantamount to pardon by the offended party.
jeopardy may be invoked only for the same offense or Identical offense. A single act
may offend against two (or more) entirely distinct and unrelated provisions of law, Petitioner's stance is unmeritorious. The complainant's filing of a subsequent case against
and if one provision requires proof of an additional fact or element which the other him belies his allegation that she has waived or is estopped from filing the second charge
does not, an acquittal or conviction or a dismissal of the information under one against petitioner. Neither could she be deemed to have pardoned him, for the rules require
does not bar prosecution under the other. Phrased elsewise, where two different that in cases of seduction, abduction, rape and acts of lasciviousness, pardon by the offended
laws (or articles of the same code) define two crimes, prior jeopardy as to one of party, to be effective, must be expressly given [Rule 110, Sec. 4 of the Rules of Court, Ruled
them is no obstacle to a prosecution of the other, although both offenses arise from 110, Sec. 5 of the 1985 Rules on Criminal Procedure.] Moreover the length of time it took her
the same facts, if each crime involves some important act which is not an essential to file the second case is of no moment considering that she filed it within the ten (10)-year
element of the other. [People v. Doriquez, G.R. Nos. 24444-45, July 29, 1968, 24 prescriptive period provided by Article 90 par. 3 of the Revised Penal Code for crimes
SCRA 163, 171-172; Emphasis supplied.] punishable by a correctional penalty such as Qualified Seduction [See Article 24 of the
Revised Penal Code.]
xxx xxx xxx
WHEREFORE, the petition is DENIED and the decision of the Court of Appeals is hereby
AFFIRMED.
89
SO ORDERED. 3. Patricio Quitalig — Less than nine (9) days

Republic of the Philippines and incapacitated them from performing their customary labor for the same period
SUPREME COURT of time.
Manila
which was filed on 10 September 1985 with the Regional Trial Court of Pasig, Metro Manila
THIRD DIVISION and docketed therein as Criminal Case No. 64294 and assigned to Branch 68 thereof; and (b)
an Information for violation of paragraph 2 of Article 275 of the Revised Penal Code on
G.R. No. 93475 June 5, 1991 Abandonment of one's victim reading as follows:

ANTONIO A. LAMERA, petitioner, That on or about the 14th day of March, 1985, in the Municipality of Pasig, Metro
vs. Manila, Philippines, and within the jurisdiction of this Honorable Court the above-
THE HONORABLE COURT OF APPEALS and THE PEOPLE OF THE PHILIPPINES, respondents. named accused, being the driver of an owner-type jeep with Plate No. NCC-313 UV
Pil. '85 which hit and bumped a motorized tricycle with Plate No. NA-6575-MC '85
Esmeraldo U. Guloy for petitioner. driven by Ernesto Reyes and as a consequence of which Paulino Gonzal and Ernesto
Reyes sustained physical injuries and lost consciousness, did then and there
DAVIDE, JR., J.: wilfully, unlawfully and feloniously abandoned (sic) them and failed (sic) to help or
render assistance to them, without justifiable reason.
At around 8:30 o'clock in the evening of 14 March 1985, along Urbano Street, Pasig, Metro
Manila, an owner-type jeep, then driven by petitioner, allegedly "hit and bumped" a tricycle which was filed on 14 November 1985 with the Metropolitan Trial Court of Pasig (Branch 71)
then driven by Ernesto Reyes resulting in damage to the tricycle and injuries to Ernesto Reyes and was docketed as Criminal Case No. 2793.
and Paulino Gonzal.1
On 29 June 1987 the Metropolitan Trial Court of Pasig rendered its decision in Criminal Case
As a consequence thereof, two informations were filed against petitioner: (a) an Information No. 2793 finding the petitioner guilty of the crime of Abandonment of one's victim as defined
for reckless imprudence resulting in damage to property with multiple physical injuries under and penalized under paragraph 2 of Article 275 of the Revised Penal Code and sentenced him
Article 365 of the Revised Penal Code reading as follows: to suffer imprisonment for a period of six (6) months of arresto mayor and to pay the costs.

That on or about the 14th day of March, 1985, in the Municipality of Pasig, Metro Petitioner appealed from said Decision to the Regional Trial Court of Pasig, Metro Manila
Manila, Philippines and within the jurisdiction of this Honorable Court the above- which docketed the appeal as Criminal Case No. 70648.
named accused, being then the driver and person in charge of an Owner Jeep
Toyota bearing Plate No. NCC-313 UV Pilipinas '85, and without due regard to In the meantime, on 27 April 1989, petitioner was arraigned in Criminal Case No. 64294
traffic laws, rules and regulations and without taking the necessary care and before Branch 68 of the Regional Trial Court of Pasig. He entered a plea of not guilty.2
precautions to avoid damage to property and injuries to persond (sic), did, then
and there willfully, unlawfully and feloniously drive, manage and opefate (sic) said Petitioner's appeal, Criminal Case No. 70648, was decided on 31 July 1989. The court
Owner Jeep in a careless, reckless, negligent and imprudent manner, as a result of affirmed with modification the decision appealed from. The modification consisted merely in
which said motor vehicle being then driven and operated by him, hit and bumped a the reduction of the penalty of imprisonment from six (6) to two (2) months.3
tricycle SUZUki (sic) bearing Plate No. NA-6575 MC Pilipinas '85, driven by Ernesto
Reyes y Esguerra and owned by Ernesto Antonel, thereby causing damage to the Still unsatisfied with the new verdict, petitioner filed with the Court of Appeals on 31 August
Suzuki tricycle in the amount of P7,845.00; and due to the impact the driver and 1989 a petition for its review, docketed as C.A.-G.R. CR No. 07351, assigning therein the
the passengers of a (sic) tricycle Suzuki, sustained physical injuries which required following alleged errors:
medical attendance as stated opposite their respective names to wit:
I
1. Ernesto Reyes — More than thirty (30) days
THE RESPONDENT HON. JUDGED (SIC) ERRED IN AFFIRMING THE FINDING OF THE
2. Paulino Gonzal — More than thirty (30) days METROPOLITAN TRIAL COURT OF PASIG, METRO MANILA, THAT "THE TRICYCLE

90
DRIVEN BY ERNESTO REYES WAS BUMPED BY THE JEEP DRIVEN BY THE Phil. Law Dictionary, 1972 ed., p. 7 citing De La Cruz v. Capital Insurance & Surety
PETITIONER." Co., 17 SCRA 559). Consequently, it is enough to show that petitioner accidentally
injured the passengers of the tricycle and failed to help or render them assistance.
II There is no need to prove that petitioner was negligent and that it was his
negligence that caused the injury. If the factor of criminal negligence is involved,
THE RESPONDENT HON. JUDGE ERRED IN AFFIRMING THE FINDING OF THE Article 365 of the Revised Penal Code will come into play. The last paragraph of Art.
METROPOLITAN TRIAL COURT OF PASIG. METRO MANILA, THAT THE PETITIONER, 365 provides that "the penalty next higher in degree to those provided for in this
"LOSING PRESENCE OF MIND AS THE BLOODY SCENARIO WOULD INDUCE IN THE article shall be imposed upon the offender who fails to lend on the spot to the
AVERAGE MOTORIST, HE (SIC) OPTED, PERHAPS INSTINCTIVELY TO HIDE IDENTITY, injured party such help as may be in his bands to give." Petitioner was charged
APPREHENSIVE MAY BE OVER THE ENORMITY OF HIS MISDEMEANOR AND THUS under par. 2 of Art. 275 not under Art. 365 of the Revised Penal Code.
DECIDED (SIC) TO WITHHOLD ASSISTANCE TO HIS FALLEN VICTIMS."
His motion to reconsider the above decision wherein he strongly urged for reconsideration
III because:

THE RESPONDENT HON. JUDGE ERRED IN DECLARING THAT, "AS THE PRESIDING xxx xxx xxx
JUDGE OF THE METROPOLITAN TRIAL COURT HAD THE OPPORTUNITY TO OBSERVE
THE DEMEANOR OF THE WITNESSES, IT IS DIFFICULT TO DISMISS THE FINDINGS OF . . . We find it hard to visualize that the accused may be penalized twice for an
FACT OF SAID COURT GIVING CREDENCE TO PROSECUTION'S WITNESSES" FOR NOT "accident" and another for "recklessness", both of which arose from the same act.
BEING (SIC) SUPPORTED BY SUBSTANTIAL EVIDENCE AND CLEARLY THE LAW AND We submit that there could not be a valid charge under Article 275, when, as in the
JURISPRUDENCE. case at bar, there is already a pending charge for reckless imprudence under Article
365 of the Revised Penal Code. It is our view that the charge under Article 275
IV presupposes that there is no other charge for reckless imprudence.

THE RESPONDENT HON. JUDGED (SIC) ERRED IN AFFIRMING THE JUDGMENT OF having been denied in the Resolution of 17 May 1990,6 petitioner filed the instant petition.7
THE METROPOLITAN TRIAL COURT OF PASIG, METRO MANILA, FINDING THE
PETITIONER GUILTY OF THE CRIME OF ABANDONMENT UNDER ART. 275, PAR. 2, Before Us he raises this sole issue:
OF THE REVISED PENAL CODE AND SENTENCING HIM TO SUFFER THE PENALTY OF
TWO (2) MONTHS AND ONE (1) DAY OF ARRESTO MAYOR AND TO PAY THE COSTS. Could there be a valid charge for alleged abandonment under Article 275, par. 2 of
the Revised Penal Code which provides as basis for prosecution. "2. Anyone who
V shall fail to help another whom he has accidentallywounded or injured" when, he
was previously charged with "reckless imprudence resulting in damage to property
THE RESPONDENT HON. JUDGE ERRED IN NOT DECLARING NULL AND VOID ALL THE with multiple physical injuries" under Article 265 (sic) of the Revised Penal Code?8
PROCEEDINGS IN THE METROPOLITAN TRIAL COURT OF PASIG AND ALL THE
PROCEEDINGS BEFORE IT.4 He maintains the negative view and supports it with the argument that "[f]or the same act,
that is, the vehicular collision, one could not be indicted in two separate informations at the
The Court of Appeals found no merit in the petition and dismissed it in its Decision same time based on "accident" and "recklessness', for there is a world of difference between
promulgated on 9 November 1989.5 Pertinently, it ruled: "reckless imprudence" and "accidentally'." As expanded by him:

We cannot sustain the contention of the petitioner that par. 2 of Art. 275 of the . . . since petitioner is facing a criminal charge for reckless imprudence pending
Revised Penal Code does not apply to him since the evidence allegedly shows that before Branch 68 of the Regional Trial Court of Pasig, Metro Manila . . . which
it was Ernesto Reyes, the tricycle driver, who negligentlycaused the accident. offense carries heavier penalties under Article 365 of the Revised Penal Code, he
Petitioner misses the import of the provision. The provision punishes the failure to could no longer be charged under Article 275, par. 2, for abandonment . . . for
help or render assistance to another whom the offender accidentally wounded or having allegedly failed "to help or render assistance to another whom he
injured. Accidental means that which happens by chance or fortuitously, without has accidentally wounded or injured".9
intention and design and which is unexpected, unusual and unforeseen (Moreno,

91
In Our resolution of 1 August 1990 We required respondents to comment on the petition. element of the
other.13
In its Comment filed on 10 September 1990, respondent People of the Philippines, through
the Office of the Solicitor General, putting the issue squarely, thus: In People vs. Bacolod, supra., from the act of firing a shot from a sub-machine gun which
caused public panic among the people present and physical injuries to one, informations for
. . . whether or not prosecution for negligence under Article 365 of the Revised physical injuries through reckless imprudence and for serious public disturbance were filed.
Penal Code is a bar to prosecution for abandonment under Article 275 of the same Accused pleaded guilty and was convicted in the first and he sought to dismiss the second on
Code. the ground of double jeopardy. We ruled:

answers it in the negative because said Articles penalize different and distinct offenses. The The protection against double jeopardy is only for the same offense. A simple act
rule on double jeopardy, which petitioner has, in effect, invoked, does not, therefore, apply may be an offense against two different provisions of law and if one provision
pursuant to existing jurisprudence. Hence, the petition should be dismissed for lack of merit. requires proof of an additional fact which the other does not, an acquittal or
conviction under one does not bar prosecution under the other.
In Our resolution of 13 March 1991 We gave due course to the petition and required the
parties to submit simultaneously their respective memoranda. Petitioner submitted his on 22 Since the informations were for separate offenses — the first against a person and the
April 199110 while the People moved that its Comment be considered as its memorandum. second against public peace and order — one cannot be pleaded as a bar to the other under
the rule on double jeopardy.
We agree with the Solicitor General that the petitioner is actually invoking his right against
double jeopardy.1âwphi1 He, however, failed to directly and categorically state it in his The two informations filed against petitioner are clearly for separate offenses.1âwphi1 The
petition or deliberately obscured it behind a suggestion of possible resultant absurdity of the first, Criminal Case No. 64294, for reckless imprudence (Article 365), falls under the sole
two informations. The reason seems obvious. He forgot to raise squarely that issue in the chapter (Criminal Negligence) of Title Fourteen (Quasi Offenses) of Book Two of the Revised
three courts below. In any case, to do so would have been a futile exercise. When he was Penal Code. The second, Criminal Case No. 2793, for Abandonment of one's victim (par. 2,
arraigned, tried, and convicted in the Metropolitan Trial Court of Pasig in Criminal Case No. Art. 275), falls under Chapter Two (Crimes Against Security) of Title Nine (Crimes Against
2793, he was not yet arraigned in Criminal Case No. 64294 before the Regional Trial Court. As Personal Liberty and Security) of Book Two of the same Code.
stated above, the judgment of conviction in the former was rendered on 29 June 1987, while
his arraignment in the latter took place only on 27 April 1989. Among the conditions for Quasi offenses under Article 365 are committed by means of culpa. Crimes against Security
double jeopardy to attach is that the accused must have been arraigned in the previous are committed by means of dolo.14
case.11 In People vs. Bocar, supra., We ruled:
Moreover, in Article 365, failure to lend help to one's victim is neither an offense by itself nor
Legal jeopardy attaches only (a) upon a valid indictment, (b) before a competent an element of the offense therein penalized. Its presence merely increases the penalty by
court, (c) after arraignment, (d) a valid plea having been entered, and (e) the case one degree. The last paragraph of the Article specifically provides:
was dismissed or otherwise terminated without the express consent of the
accused. 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
Moreover, he is charged for two separate offenses under the Revised Penal Code. In People help as may be in hand to give.
vs. Doriquez,12 We held:
Such being the case, it must be specifically alleged in the information. The information
It is a cardinal rule that the protection against double jeopardy may be invoked against petitioner in this case does not so allege.
only for the same offense or identical offenses. A simple act may offend against
two (or more) entirely distinct and unrelated provisions of law, and if one provision Upon the other hand, failure to help or render assistance to another whom one has
requires proof of an additional fact or element which the other does not, an accidentally wounded or injured is an offense under paragraph 2 of Article 275 of the same
acquittal or conviction or a dismissal of the information under one does not bar code which reads:
prosecution under the other. Phrased elsewhere, where two different laws (or
articles of the same code) defines two crimes, prior jeopardy as to one of them is The penalty of arresto mayor shall be imposed upon:
no obstacle to a prosecution of the other, although both offenses arise from the
same facts, if each crime involves some important act which is not an essential
92
xxx xxx xxx 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
2. Anyone who shall fail to help or render assistance to another whom he has No. 266, dated 12 August 1976 and 8 November 1976, respectively, quashing an information
accidentally wounded or injured. for theft filed against private respondent Manuel Opulencia on the ground of double
jeopardy and denying the petitioner's motion for reconsideration.
The foregoing distinctions satisfy the guidelines We made in People vs. Relova, et
al.,15 wherein We held: 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
It is perhaps important to note that the rule limiting the constitutional protection Batangas City, searched and examined the premises of the Opulencia Carpena Ice Plant and
against double jeopardy to a subsequent prosecution for the same offense is not to Cold Storage owned and operated by the private respondent Manuel Opulencia. The police
be understood with absolute literalness. The identity of offenses that must be discovered that electric wiring, devices and contraptions had been installed, without the
shown need not be absolute identity: the first and second offenses may be necessary authority from the city government, and "architecturally concealed inside the walls
regarded as the "same offense" where the second offense necessarily includes the of the building" 1owned by the private respondent. These electric devices and contraptions
first offense or is necessarily included in such first offense or where the second were, in the allegation of the petitioner "designed purposely to lower or decrease the
offense is an attempt to commit the first or a registration thereof. Thus, for the readings of electric current consumption in the electric meter of the said electric [ice and
constitutional plea of double jeopardy to be available, not all the technical cold storage] plant." 2 During the subsequent investigation, Manuel Opulencia admitted in a
elements constituting the first offense need be present in the technical definition written statement that he had caused the installation of the electrical devices "in order to
of the second offense. The law here seeks to prevent harassment of an accused lower or decrease the readings of his electric meter. 3
person by multiple prosecutions for offenses which though different from one
another are nonetheless each constituted by a common set or overlapping sets of On 24 November 1975, an Assistant City Fiscal of Batangas City filed before the City Court of
technical elements. 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
Undoubtedly then, no constitutional, statutory or procedural obstacle barred the filing of the by a fine "ranging from Five Pesos (P5.00) to Fifty Pesos (P50.00) or imprisonment, which
two informations against petitioner. shall not exceed thirty (30) days, or both, at the discretion of the court." 4 This information
reads as follows:
WHEREFORE, for lack of merit, the Petition is DENIED without pronouncements as to costs.
The undersigned, Assistant City Fiscal, accuses Manuel Opulencia y Lat of violation
SO ORDERED. of Sec. 3 (b) in relation to Sec. 6 (d) and Sec. 10 Article II, Title IV of ordinance No. 1,
Republic of the Philippines S. 1974, with damage to the City Government of Batangas, and penalized by the
SUPREME COURT said ordinance, committed as follows:
Manila
That from November, 1974 to February, 1975 at Batangas City, Philippines and
FIRST DIVISION within the jurisdiction of this Honorable Court, the above-named accused, with
intent to defraud the City Government of Batangas, without proper authorization
G.R. No. L-45129 March 6, 1987 from any lawful and/or permit from the proper authorities, did then and there
wilfully, unlawfully and feloniously make unauthorized installations of electric
PEOPLE OF THE PHILIPPINES, petitioner, wirings and devices to lower or decrease the consumption of electric fluid at the
vs. Opulencia Ice Plant situated at Kumintang, Ibaba, this city and as a result of such
THE HONORABLE BENJAMIN RELOVA, in his capacity as Presiding Judge of the Court of First unathorized installations of electric wirings and devices made by the accused, the
Instance of Batangas, Second Branch, and MANUEL OPULENCIA, respondents. City Government of Batangas was damaged and prejudiced in the total amount of
FORTY ONE THOUSAND, SIXTY TWO PESOS AND SIXTEEN CENTAVOS (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
FELICIANO, J.:
amount of P41,062.16, Philippine currency.

93
The accused Manuel Opulencia pleaded not guilty to the above information. On 2 February the city government of Batangas. If the charge had meant illegal electric
1976, he filed a motion to dismiss the information upon the grounds that the crime there installations only, it could have alleged illegal connections which were done at one
charged had already prescribed and that the civil indemnity there sought to be recovered instance on a particular date between November, 1974, to February 21, 1975. But
was beyond the jurisdiction of the Batangas City Court to award. In an order dated 6 April as the information states "that from November, 1974 to February 1975 at Batangas
1976, the Batangas City Court granted the motion to dismiss on the ground of prescription, it City, Philippines, and within the jurisdiction of this Honorable Court, the above-
appearing that the offense charged was a light felony which prescribes two months from the named accused with intent to defraud the City Government of Batangas,
time of discovery thereof, and it appearing further that the information was filed by the fiscal without proper authorization from any lawful and/or permit from the proper
more than nine months after discovery of the offense charged in February 1975. authorities, did then and there wilfully, unlawfully and feloniously make
unauthorized installations of electric wirings and devices, etc." (Emphasis supplied),
Fourteen (14) days later, on 20 April 1976, the Acting City Fiscal of Batangas City filed before it was meant to include the P 41,062.16 which the accused had, in effect,
the Court of First Instance of Batangas, Branch 11, another information against Manuel defrauded the city government. The information could not have meant that from
Opulencia, this time for theft of electric power under Article 308 in relation to Article 309, November 1974 to 21 February 1975, he had daily committed unlawful
paragraph (1), of the Revised Penal Code. This information read as follows: installations.

The undersigned Acting City Fiscal accuses Manuel Opulencia y Lat of the crime of When, therefore, he was arraigned and he faced the indictment before the City
theft, defined and penalized by Article 308, in relation to Article 309, paragraph (1) Court, he had already been exposed, or he felt he was exposed to consequences of
of the Revised Penal Code, committed as follows: 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)
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 A Motion for Reconsideration of the above-quoted Order filed by the petitioner was denied
and without the knowledge and consent of the Batangas Electric Light System, did by the respondent Judge in an Order dated 18 November 1976.
then and there, wilfully, unlawfully and feloniously take, steal and appropriate
electric current valued in the total amount of FORTY ONE THOUSAND, SIXTY TWO On 1 December 1976, the present Petition for certiorari and mandamus was filed in this
PESOS AND SIXTEEN CENTAVOS (P41,062.16) Philippine Currency, to the damage Court by the Acting City Fiscal of Batangas City on behalf of the People.
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 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
The above information was docketed as Criminal Case No. 266 before the Court of First offense. The petitioner stresses that the first information filed before the City Court of
Instance of Batangas, Branch II. Before he could be arraigned thereon, Manuel Opulencia Batangas City was one for unlawful or unauthorized installation of electrical wiring and
filed a Motion to Quash, dated 5 May 1976, alleging that he had been previously acquitted of devices, acts which were in violation of an ordinance of the City Government of Batangas.
the offense charged in the second information and that the filing thereof was violative of his Only two elements are needed to constitute an offense under this City Ordinance: (1) that
constitutional right against double jeopardy. By Order dated 16 August 1976, the respondent there was such an installation; and (2) no authority therefor had been obtained from the
Judge granted the accused's Motion to Quash and ordered the case dismissed. The gist of Superintendent of the Batangas City Electrical System or the District Engineer. The petitioner
this Order is set forth in the following paragraphs: urges that the relevant terms of the City Ordinance — which read as follows:

The only question here is whether the dismissal of the first case can be properly Section 3.-Connection and Installation
pleaded by the accused in the motion to quash.
(a) x x x
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 (b) The work and installation in the houses and building and their connection with
Sec. 10 Article II, Title IV of Ordinance No. 1, s. 1974, with damage to the City the Electrical System shall be done either by the employee of the system duly
Government of Batangas, etc. " (Emphasis supplied). The first case, as it appears, authorized by its Superintendent or by persons adept in the matter duly authorized
was not simply one of illegal electrical connections. It also covered an amount of by the District Engineer. Applicants for electrical service permitting the works of
P41,062.16 which the accused, in effect, allegedly with intent to defraud, deprived
94
installation or connection with the system to be undertaken by the persons not 4. By tightening the screw of the rotary blade to slow down the rotation of the
duly authorized therefor shall be considered guilty of violation of the ordinance. same. 7

would show that: The petitioner concludes that:

The principal purpose for (sic) such a provision is to ensure that electrical The unauthorized installation punished by the ordinance [of Batangas City] is not
installations on residences or buildings be done by persons duly authorized or the same as theft of electricity [under the Revised Penal Code]; that the second
adept in the matter, to avoid fires and accidents due to faulty electrical wirings. It is offense is not an attempt to commit the first or a frustration thereof and that the
primarily a regulatory measure and not intended to punish or curb theft of electric second offense is not necessarily included in the offense charged in the first
fluid which is already covered by the Revised Penal Code. 5 inforrnation 8

The gist of the offense under the City Ordinance, the petitioner's argument continues, is the The above arguments made by the petitioner are of course correct. This is clear both from
installing of electric wiring and devices without authority from the proper officials of the city the express terms of the constitutional provision involved — which reads as follows:
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 No person shall be twice put in jeopardy of punishment for the same offense. If an
to appropriate and steal electric fluid. 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;
In contrast, the petitioner goes on, the offense of theft under Article 308 of the Revised Article IV (22), 1973 Constitution) 9
Penal Code filed before the Court of First Instance of Batangas in Criminal Case No. 266 has
quite different essential elements. These elements are: 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
1. That personal property be taken; 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
2. That the personal property (taken) belongs to another; 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
3. That the taking be done with intent of gain;
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
4. That the taking be done without the consent of the owner; and 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
5. That the taking be accomplished without violence against or intimidation of acts. This was made clear sometime ago in Yap vs. Lutero. 11
persons or force upon things. 6
In Yap, petitioner Manuel Yap was charged in Criminal Case No. 16054 of the Municipal Court
The petitioner also alleges, correctly, in our view, that theft of electricity can be effected of Iloilo City, with violation of Article 14 of Ordinance No. 22, Series of 1951, in relation to
even without illegal or unauthorized installations of any kind by, for instance, any of the Ordinance No. 15, Series of 1954, of the City of Iloilo. The information charged him with
following means: having "wilfully, unlawfully and feloniously drive[n] and operate[d]" an automobile —
"recklessly and without reasonable caution thereby endangering other vehicles and
1. Turning back the dials of the electric meter; 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
2. Fixing the electric meter in such a manner that it will not register the actual Vehicle Law (Act No. 3992 as amended by Republic Act No. 587) committed by driving and
electrical consumption; 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
3. Under-reading of electrical consumption; and 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
95
acquitted Yap in Criminal Case No. 16054. Yap then instituted a petition for certiorari in the jeopardy — be convicted of the same act charged in case No. 16054, in which he
Court of First Instance of Iloilo to set aside the order of the respondent municipal judge. The has already been acquitted. The information in case No. 16054 alleges,
Court of First Instance of Iloilo having reversed the respondent municipal judge and having substantially, that on the date and in the place therein stated, petitioner herein
directed him to desist from continuing with Criminal Case No. 16443, the respondent Judge had wilfully, unlawfully and feloniously driven and operated "recklessly and
brought the case to the Supreme Court for review on appeal. In affirming the decision without reasonable caution" an automobile described in said information. Upon
appealed from and holding that the constitutional protection against double jeopardy was the other hand, the information in case No. 16443, similarly states that, on the
available to petitioner Yap, then Associate Justice and later Chief Justice Roberto Concepcion same date and in the same place, petitioner drove and operated the
wrote: 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
To begin with, the crime of damage to property through reckless driving — with amended by Republic Act No. 587, and existing city ordinances." Thus, if the
which Diaz stood charged in the court of first instance — is a violation of the theories mentioned in the second information were not established by the
Revised Penal Code (third paragraph of Article 365), not the Automobile Law (Act evidence, petitioner could be convicted in case No. 16443 of the very same
No. 3992, as amended by Republic Act No. 587). Hence, Diaz was not twice accused violation of municipal ordinance charged in case No. 16054, unless he pleaded
of a violation of the same law. Secondly, reckless driving and certain crimes double jeopardy.
committed through reckless driving are punishable under different provisions of
said Automobile Law. Hence — from the view point of Criminal Law, as It is clear, therefore, that the lower court has not erred eventually sustaining the
distinguished from political or Constitutional Law — they constitute, strictly, theory of petitioner herein.
different offenses, although under certain conditions, one offense may include the
other, and, accordingly, once placed in jeopardy for one, the plea of double Put a little differently, where the offenses charged are penalized either by different sections
jeopardy may be in order as regards the other, as in the Diaz case. (Emphases in the of the same statute or by different statutes, the important inquiry relates to the identity of
original) 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
Thirdly, our Bill of Rights deals with two (2) kinds of double jeopardy. The first charged. In contrast, where one offense is charged under a municipal ordinance while the
sentence of clause 20, section 1, Article III of the Constitution, ordains that "no other is penalized by a statute, the critical inquiry is to the identity of the acts which the
person shall be twice put in jeopardy of punishment for the same offense." accused is said to have committed and which are alleged to have given rise to the two
(Emphasis in the original) The second sentence of said clause provides that "if an offenses: the constitutional protection against double jeopardy is available so long as the acts
act is punishable by a law and an ordinance, conviction or acquittal under either which constitute or have given rise to the first offense under a municipal ordinance are the
shall constitute a bar to another prosecution for the same act." Thus, the first same acts which constitute or have given rise to the offense charged under a statute.
sentence prohibits double jeopardy of punishment for the same offense, whereas
the second contemplates double jeopardy of punishment for the same act. Under The question may be raised why one rule should exist where two offenses under two
the first sentence, one may be twice put in jeopardy of punishment of the same act different sections of the same statute or under different statutes are charged, and another
provided that he is charged with different offenses, or the offense charged in one rule for the situation where one offense is charged under a municipal ordinance and another
case is not included in or does not include, the crime charged in the other case. The offense under a national statute. If the second sentence of the double jeopardy provision had
second sentence applies, even if the offenses charged are not the same, owing to not been written into the Constitution, conviction or acquittal under a municipal ordinance
the fact that one constitutes a violation of an ordinance and the other a violation of would never constitute a bar to another prosecution for the same act under a national
a statute. If the two charges are based on one and the same act conviction or statute. An offense penalized by municipal ordinance is, by definition, different from an
acquittal under either the law or the ordinance shall bar a prosecution under the offense under a statute. The two offenses would never constitute the same offense having
other. 12 Incidentally, such conviction or acquittal is not indispensable to sustain been promulgated by different rule-making authorities — though one be subordinate to the
the plea of double jeopardy of punishment for the same offense. So long as other — and the plea of double jeopardy would never lie. The discussions during the 1934-
jeopardy has attached under one of the informations charging said offense, the 1935 Constitutional Convention show that the second sentence was inserted precisely for the
defense may be availed of in the other case involving the same offense, even if purpose of extending the constitutional protection against double jeopardy to a situation
there has been neither conviction nor acquittal in either case. which would not otherwise be covered by the first sentence. 13

The issue in the case at bar hinges, therefore, on whether or not, under the The question of Identity or lack of Identity of offenses is addressed by examining the
information in case No. 16443, petitioner could — if he failed to plead double essential elements of each of the two offenses charged, as such elements are set out in the

96
respective legislative definitions of the offenses involved. The question of Identity of the acts While the rule against double jeopardy prohibits prosecution for the same offense,
which are claimed to have generated liability both under a municipal ordinance and a it seems elementary that an accused should be shielded against being prosecuted
national statute must be addressed, in the first instance, by examining the location of such for several offenses made out from a single act. Otherwise, an unlawful act or
acts in time and space. When the acts of the accused as set out in the two informations are omission may give use to several prosecutions depending upon the ability of the
so related to each other in time and space as to be reasonably regarded as having taken prosecuting officer to imagine or concoct as many offenses as can be justified by
place on the same occasion and where those acts have been moved by one and the same, or said act or omission, by simply adding or subtracting essential elements. Under the
a continuing, intent or voluntary design or negligence, such acts may be appropriately theory of appellant, the crime of rape may be converted into a crime of coercion, by
characterized as an integral whole capable of giving rise to penal liability simultaneously merely alleging that by force and intimidation the accused prevented the offended
under different legal enactments (a municipal ordinance and a national statute). girl from remaining a virgin. (88 Phil. at 53; emphases supplied)

In Yap, the Court regarded the offense of reckless driving under the Iloilo City Ordinance and By the same token, acts of a person which physically occur on the same occasion and are
serious physical injuries through reckless imprudence under the Revised Motor Vehicle Law infused by a common intent or design or negligence and therefore form a moral unity, should
as derived from the same act or sets of acts — that is, the operation of an automobile in a not be segmented and sliced, as it were, to produce as many different acts as there are
reckless manner. The additional technical element of serious physical injuries related to the offenses under municipal ordinances or statutes that an enterprising prosecutor can find
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 It remains to point out that the dismissal by the Batangas City Court of the information for
the same occasion that the accused operated the automobile (recklessly). The moral element violation of the Batangas City Ordinance upon the ground that such offense had already
of negligence permeated the acts of the accused throughout that occasion. 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
In the instant case, the relevant acts took place within the same time frame: from November criminal liability." Under the Rules of Court, an order sustaining a motion to quash based on
1974 to February 1975. During this period, the accused Manuel Opulencia installed or prescription is a bar to another prosecution for the same offense. 15
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 It is not without reluctance that we deny the people's petition for certiorari and mandamus
that he effected or permitted such unauthorized installation for the very purpose of reducing in this case. It is difficult to summon any empathy for a businessman who would make or
electric power bill. This corrupt intent was thus present from the very moment that such enlarge his profit by stealing from the community. Manuel Opulencia is able to escape
unauthorized installation began. The immediate physical effect of the unauthorized criminal punishment because an Assistant City Fiscal by inadvertence or otherwise chose to
installation was the inward flow of electric current into Opulencia's ice plant without the file an information for an offense which he should have known had already prescribed. We
corresponding recording thereof in his electric meter. In other words, the "taking" of electric are, however, compelled by the fundamental law to hold the protection of the right against
current was integral with the unauthorized installation of electric wiring and devices. double jeopardy available even to the private respondent in this case.

It is perhaps important to note that the rule limiting the constitutional protection against The civil liability aspects of this case are another matter. Because no reservation of the right
double jeopardy to a subsequent prosecution for the same offense is not to be understood to file a separate civil action was made by the Batangas City electric light system, the civil
with absolute literalness. The Identity of offenses that must be shown need not be absolute action for recovery of civil liability arising from the offense charged was impliedly instituted
Identity: the first and second offenses may be regarded as the "same offense" where the with the criminal action both before the City Court of Batangas City and the Court of First
second offense necessarily includes the first offense or is necessarily included in such first Instance of Batangas. The extinction of criminal liability whether by prescription or by the bar
offense or where the second offense is an attempt to commit the first or a frustration of double jeopardy does not carry with it the extinction of civil liability arising from the
thereof. 14 Thus, for the constitutional plea of double jeopardy to be available, not all the offense charged. In the present case, as we noted earlier, 16 accused Manuel Opulencia
technical elements constituting the first offense need be present in the technical definition of freely admitted during the police investigation having stolen electric current through the
the second offense. The law here seeks to prevent harrassment of an accused person by installation and use of unauthorized elibctrical connections or devices. While the accused
multiple prosecutions for offenses which though different from one another are nonetheless pleaded not guilty before the City Court of Batangas City, he did not deny having
each constituted by a common set or overlapping sets of technical elements. As Associate appropriated electric power. However, there is no evidence in the record as to the amount or
Justice and later Chief Justice Ricardo Paras cautioned in People vs. del Carmen et al., 88 Phil. value of the electric power appropriated by Manuel Opulencia, the criminal informations
51 (1951): 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

97
impliedly, should be remanded to the Court of First Instance of Batangas City for reception of DECISION
evidence on the amount or value of the electric power appropriated and converted by CARPIO, J.:
Manuel Opulencia and rendition of judgment conformably with such evidence.

WHEREFORE, the petition for certiorari and mandamus is DENIED. Let the civil action for The Case
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. The petition seeks the review[1] of the Orders[2] of the Regional Trial Court of Pasig City
affirming sub-silencio a lower courts ruling finding inapplicable the Double Jeopardy Clause to
bar a second prosecution for Reckless Imprudence Resulting in Homicide and Damage to
SO ORDERED.
Property. This, despite the accuseds previous conviction for Reckless Imprudence Resulting in
Slight Physical Injuries arising from the same incident grounding the second prosecution.
The Facts
Following a vehicular collision in August 2004, petitioner Jason Ivler (petitioner) was charged
before the Metropolitan Trial Court of Pasig City, Branch 71 (MeTC), with two separate
offenses: (1) Reckless Imprudence Resulting in Slight Physical Injuries (Criminal Case No.
82367) for injuries sustained by respondent Evangeline L. Ponce (respondent Ponce); and (2)
Reckless Imprudence Resulting in Homicide and Damage to Property (Criminal Case No.
82366) for the death of respondent Ponces husband Nestor C. Ponce and damage to the
spouses Ponces vehicle. Petitioner posted bail for his temporary release in both cases.
On 7 September 2004, petitioner pleaded guilty to the charge in Criminal Case No.
82367 and was meted out the penalty of public censure. Invoking this conviction, petitioner
moved to quash the Information in Criminal Case No. 82366 for placing him in jeopardy of
second punishment for the same offense of reckless imprudence.
The MeTC refused quashal, finding no identity of offenses in the two cases.[3]
After unsuccessfully seeking reconsideration, petitioner elevated the matter to the
Regional Trial Court of Pasig City, Branch 157 (RTC), in a petition for certiorari (S.C.A. No.
2803). Meanwhile, petitioner sought from the MeTC the suspension of proceedings in
Criminal Case No. 82366, including the arraignment on 17 May 2005, invoking S.C.A. No.
2803 as a prejudicial question. Without acting on petitioners motion, the MeTC proceeded
with the arraignment and, because of petitioners absence, cancelled his bail and ordered his
SECOND DIVISION arrest.[4] Seven days later, the MeTC issued a resolution denying petitioners motion to
suspend proceedings and postponing his arraignment until after his arrest.[5]Petitioner
JASON IVLER y AGUILAR, G.R. No. 172716 sought reconsideration but as of the filing of this petition, the motion remained unresolved.
Petitioner, Relying on the arrest order against petitioner, respondent Ponce sought in the RTC
Present: the dismissal of S.C.A. No. 2803 for petitioners loss of standing to maintain the suit.
CARPIO, J. Chairperson, Petitioner contested the motion.
CARPIO MORALES, * The Ruling of the Trial Court
- versus - PERALTA, ABAD, and In an Order dated 2 February 2006, the RTC dismissed S.C.A. No. 2803, narrowly
MENDOZA, JJ. grounding its ruling on petitioners forfeiture of standing to maintain S.C.A. No. 2803 arising
from the MeTCs order to arrest petitioner for his non-appearance at the arraignment in
HON. MARIA ROWENA MODESTO- Criminal Case No. 82366. Thus, without reaching the merits of S.C.A. No. 2803, the RTC
SAN PEDRO, Judge of the Metropolitan effectively affirmed the MeTC. Petitioner sought reconsideration but this proved
Trial Court, Branch 71, Pasig City, and Promulgated: unavailing.[6]
EVANGELINE PONCE, Hence, this petition.
Respondents. November 17, 2010 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

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distinguishes his case from the line of jurisprudence sanctioning dismissal of appeals for Criminal Case No. 82366 finds no basis under procedural rules and jurisprudence. The RTCs
absconding appellants because his appeal before the RTC was a special civil action seeking a reliance on People v. Esparas[9] undercuts the cogency of its ruling because Esparas stands for
pre-trial relief, not a post-trial appeal of a judgment of conviction.[7] a proposition contrary to the RTCs ruling. There, the Court granted review to an appeal by an
accused who was sentenced to death for importing prohibited drugs even though she jumped
bail pending trial and was thus tried and convicted in absentia. The Court in Esparas treated
Petitioner laments the RTCs failure to reach the merits of his petition in S.C.A. 2803. Invoking the mandatory review of death sentences under Republic Act No. 7659 as an exception to
jurisprudence, petitioner argues that his constitutional right not to be placed twice in Section 8 of Rule 124.[10]
jeopardy of punishment for the same offense bars his prosecution in Criminal Case No. The mischief in the RTCs treatment of petitioners non-appearance at his arraignment in
82366, having been previously convicted in Criminal Case No. 82367 for the same offense of Criminal Case No. 82366 as proof of his loss of standing becomes more evident when one
reckless imprudence charged in Criminal Case No. 82366. Petitioner submits that the multiple considers the Rules of Courts treatment of a defendant who absents himself from post-
consequences of such crime are material only to determine his penalty. arraignment hearings. Under Section 21, Rule 114[11] of the Revised Rules of Criminal
Procedure, the defendants absence merely renders his bondsman potentially liable on its
Respondent Ponce finds no reason for the Court to disturb the RTCs decision forfeiting bond (subject to cancellation should the bondsman fail to produce the accused within 30
petitioners standing to maintain his petition in S.C.A. 2803. On the merits, respondent Ponce days); the defendant retains his standing and, should he fail to surrender, will be tried in
calls the Courts attention to jurisprudence holding that light offenses (e.g. slight physical absentia and could be convicted or acquitted. Indeed, the 30-day period granted to the
injuries) cannot be complexed under Article 48 of the Revised Penal Code with grave or less bondsman to produce the accused underscores the fact that mere non-appearance does
grave felonies (e.g. homicide). Hence, the prosecution was obliged to separate the charge in not ipso facto convert the accuseds status to that of a fugitive without standing.
Criminal Case No. 82366 for the slight physical injuries from Criminal Case No. 82367 for the Further, the RTCs observation that petitioner provided no explanation why he
homicide and damage to property. failed to attend the scheduled proceeding[12] at the MeTC is belied by the records. Days
In the Resolution of 6 June 2007, we granted the Office of the Solicitor Generals motion not before the arraignment, petitioner sought the suspension of the MeTCs proceedings in
to file a comment to the petition as the public respondent judge is merely a nominal party Criminal Case No. 82366 in light of his petition with the RTC in S.C.A. No. 2803. Following the
and private respondent is represented by counsel. MeTCs refusal to defer arraignment (the order for which was released days after the MeTC
The Issues ordered petitioners arrest), petitioner sought reconsideration. His motion remained
Two questions are presented for resolution: (1) whether petitioner forfeited his standing to unresolved as of the filing of this petition
seek relief in S.C.A. 2803 when the MeTC ordered his arrest following his non-appearance at Petitioners Conviction in Criminal Case No. 82367
the arraignment in Criminal Case No. 82366; and (2) if in the negative, whether petitioners Bars his Prosecution in Criminal Case No. 82366
constitutional right under the Double Jeopardy Clause bars further proceedings in Criminal The accuseds negative constitutional right not to be twice put in jeopardy of
Case No. 82366. punishment for the same offense[13] protects him from, among others, post-conviction
The Ruling of the Court prosecution for the same offense, with the prior verdict rendered by a court of competent
We hold that (1) petitioners non-appearance at the arraignment in Criminal Case No. 82366 jurisdiction upon a valid information.[14] It is not disputed that petitioners conviction in
did not divest him of personality to maintain the petition in S.C.A. 2803; and (2) the Criminal Case No. 82367 was rendered by a court of competent jurisdiction upon a valid
protection afforded by the Constitution shielding petitioner from prosecutions placing him in charge. Thus, the case turns on the question whether Criminal Case No. 82366 and Criminal
jeopardy of second punishment for the same offense bars further proceedings in Criminal Case No. 82367 involve the same offense. Petitioner adopts the affirmative view, submitting
Case No. 82366. that the two cases concern the same offense of reckless imprudence. The MeTC ruled
Petitioners Non-appearance at the Arraignment in otherwise, finding that Reckless Imprudence Resulting in Slight Physical Injuries is an entirely
Criminal Case No. 82366 did not Divest him of Standing separate offense from Reckless Imprudence Resulting in Homicide and Damage to Property
to Maintain the Petition in S.C.A. 2803 as the [latter] requires proof of an additional fact which the other does not.[15]
Dismissals of appeals grounded on the appellants escape from custody or violation of the
terms of his bail bond are governed by the second paragraph of Section 8, Rule 124, [8]in We find for petitioner.
relation to Section 1, Rule 125, of the Revised Rules on Criminal Procedure authorizing this Reckless Imprudence is a Single Crime,
Court or the Court of Appeals to also, upon motion of the appellee or motu proprio, dismiss its Consequences on Persons and
the appeal if the appellant escapes from prison or confinement, jumps bail or flees to a Property are Material Only to Determine
foreign country during the pendency of the appeal. The appeal contemplated in Section 8 of the Penalty
Rule 124 is a suit to review judgments of convictions. The two charges against petitioner, arising from the same facts, were prosecuted
The RTCs dismissal of petitioners special civil action for certiorari to review a pre-arraignment under the same provision of the Revised Penal Code, as amended, namely, Article 365
ancillary question on the applicability of the Due Process Clause to bar proceedings in defining and penalizing quasi-offenses. The text of the provision reads:

99
Imprudence and negligence. Any person who, by reckless degree of intelligence, physical condition and other circumstances regarding
imprudence, shall commit any act which, had it been intentional, would persons, time and place.
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 Simple imprudence consists in the lack of precaution displayed in
have constituted a less grave felony, the penalty of arresto mayor in its those cases in which the damage impending to be caused is not immediate
minimum and medium periods shall be imposed; if it would have constituted nor the danger clearly manifest.
a light felony, the penalty of arresto menor in its maximum period shall be
imposed. 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
Any person who, by simple imprudence or negligence, shall commit injured parties such help as may be in this hand to give.
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 Structurally, these nine paragraphs are collapsible into four sub-groupings relating
have constituted a less serious felony, the penalty of arresto mayor in its to (1) the penalties attached to the quasi-offenses of imprudence and negligence (paragraphs
minimum period shall be imposed. 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
When the execution of the act covered by this article shall have of reckless imprudence and simple imprudence (paragraphs 7-8). Conceptually, quasi-
only resulted in damage to the property of another, the offender shall be offenses penalize the mental attitude or condition behind the act, the dangerous
punished by a fine ranging from an amount equal to the value of said recklessness, lack of care or foresight, the imprudencia punible,[16] unlike willful offenses
damages to three times such value, but which shall in no case be less than which punish the intentional criminal act. These structural and conceptual features of quasi-
twenty-five pesos. 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.
A fine not exceeding two hundred pesos and censure shall be
imposed upon any person who, by simple imprudence or negligence, shall Indeed, the notion that quasi-offenses, whether reckless or simple, are distinct
cause some wrong which, if done maliciously, would have constituted a light species of crime, separately defined and penalized under the framework of our penal laws, is
felony. 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
In the imposition of these penalties, the court shall exercise their reckless imprudence is not a crime in itself but simply a way of committing it x x x[17] on three
sound discretion, without regard to the rules prescribed in Article sixty-four. 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
The provisions contained in this article shall not be applicable: subsuming them under the mitigating circumstance of minimal intent) and; (3) the different
penalty structures for quasi-crimes and intentional crimes:
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 proposition (inferred from Art. 3 of the Revised Penal
the court shall impose the penalty next lower in degree than that which Code) that reckless imprudence is not a crime in itself but simply a way of
should be imposed in the period which they may deem proper to apply. committing it and merely determines a lower degree of criminal
liability is too broad to deserve unqualified assent. There are crimes that
2. When, by imprudence or negligence and with violation of the by their structure cannot be committed through imprudence: murder,
Automobile Law, to death of a person shall be caused, in which case the treason, robbery, malicious mischief, etc. In truth, criminal negligence in
defendant shall be punished by prision correccional in its medium and our Revised Penal Code is treated as a mere quasi offense, and dealt with
maximum periods. separately from willful offenses. It is not a mere question of classification
or terminology. In intentional crimes, the act itself is punished; in
Reckless imprudence consists in voluntary, but without malice, doing negligence or imprudence, what is principally penalized is the mental
or failing to do an act from which material damage results by reason of attitude or condition behind the act, the dangerous recklessness, lack of
inexcusable lack of precaution on the part of the person performing or failing care or foresight, the imprudencia punible. x x x x
to perform such act, taking into consideration his employment or occupation,

100
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 The doctrine that reckless imprudence under Article 365 is a single quasi-offense by
intent to commit so grave a wrong as the one actually committed. itself and not merely a means to commit other crimes such that conviction or acquittal of
Furthermore, the theory would require that the corresponding penalty such quasi-offense bars subsequent prosecution for the same quasi-offense, regardless of its
should be fixed in proportion to the penalty prescribed for each crime various resulting acts, undergirded this Courts unbroken chain of jurisprudence on double
when committed willfully. For each penalty for the willful offense, there jeopardy as applied to Article 365 starting with People v. Diaz,[25] decided in 1954. There, a
would then be a corresponding penalty for the negligent variety. But full Court, speaking through Mr. Justice Montemayor, ordered the dismissal of a case for
instead, our Revised Penal Code (Art. 365) fixes the penalty for reckless damage to property thru reckless imprudence because a prior case against the same accused
imprudence at arresto mayor maximum, to prision for reckless driving, arising from the same act upon which the first prosecution was based,
correccional [medium], if the willful act would constitute a grave felony, had been dismissed earlier. Since then, whenever the same legal question was brought
notwithstanding that the penalty for the latter could range all the way before the Court, that is, whether prior conviction or acquittal of reckless imprudence bars
from prision mayor to death, according to the case. It can be seen that subsequent prosecution for the same quasi-offense, regardless of the consequences alleged
the actual penalty for criminal negligence bears no relation to the for both charges, the Court unfailingly and consistently answered in the affirmative in People
individual willful crime, but is set in relation to a whole class, or series, of v. Belga[26] (promulgated in 1957 by the Court en banc, per Reyes, J.), Yap v.
crimes.[18] (Emphasis supplied) Lutero[27] (promulgated in 1959, unreported, per Concepcion, J.), People v.
Narvas[28] (promulgated in 1960 by the Court en banc, per Bengzon J.), People v.
Silva[29] (promulgated in 1962 by the Court en banc, per Paredes, J.), People v.
This explains why the technically correct way to allege quasi-crimes is to state that their Macabuhay[30] (promulgated in 1966 by the Court en banc, per Makalintal, J.), People v.
commission results in damage, either to person or property.[19] Buan[31] (promulgated in 1968 by the Court en banc, per Reyes, J.B.L., acting C. J.), Buerano v.
Accordingly, we found the Justice of the Peace in Quizon without jurisdiction to Court of Appeals[32] (promulgated in 1982 by the Court en banc, per Relova, J.), and People v.
hear a case for Damage to Property through Reckless Imprudence, its jurisdiction being City Court of Manila[33] (promulgated in 1983 by the First Division, per Relova, J.). These cases
limited to trying charges for Malicious Mischief, an intentional crime conceptually uniformly barred the second prosecutions as constitutionally impermissible under the Double
incompatible with the element of imprudence obtaining in quasi-crimes. Jeopardy Clause.

Quizon, rooted in Spanish law[20] (the normative ancestry of our present day penal The reason for this consistent stance of extending the constitutional protection
code) and since repeatedly reiterated,[21] stands on solid conceptual foundation. The contrary under the Double Jeopardy Clause to quasi-offenses was best articulated by Mr. Justice J.B.L.
doctrinal pronouncement in People v. Faller[22] that [r]eckless impudence is not a crime in Reyes in Buan, where, in barring a subsequent prosecution for serious physical injuries and
itself x x x [but] simply a way of committing it x x x,[23] has long been abandoned when the damage to property thru reckless imprudence because of the accuseds prior acquittal of
Court en banc promulgated Quizon in 1955 nearly two decades after the Court slight physical injuries thru reckless imprudence, with both charges grounded on the same
decided Faller in 1939. Quizon rejected Fallers conceptualization of quasi-crimes by holding act, the Court explained:[34]
that quasi-crimes under Article 365 are distinct species of crimes and not merely methods of
committing crimes. Faller found expression in post-Quizonjurisprudence[24] only by dint of Reason and precedent both coincide in that once convicted or
lingering doctrinal confusion arising from an indiscriminate fusion of criminal law rules acquitted of a specific act of reckless imprudence, the accused may not
defining Article 365 crimes and the complexing of intentional crimes under Article 48 of the be prosecuted again for that same act. For the essence of the quasi
Revised Penal Code which, as will be shown shortly, rests on erroneous conception of quasi- offense of criminal negligence under article 365 of the Revised Penal Code
crimes. Indeed, the Quizonian conception of quasi-crimes undergirded a related branch of lies in the execution of an imprudent or negligent act that, if intentionally
jurisprudence applying the Double Jeopardy Clause to quasi-offenses, barring second done, would be punishable as a felony. The law penalizes thus the
prosecutions for a quasi-offense alleging one resulting act after a prior conviction or acquittal negligent or careless act, not the result thereof. The gravity of the
of a quasi-offense alleging another resulting act but arising from the same reckless act or consequence is only taken into account to determine the penalty, it does
omission upon which the second prosecution was based. 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,
Prior Conviction or Acquittal of the offense (criminal negligence) remains one and the same, and can not
Reckless Imprudence Bars be split into different crimes and prosecutions.[35] x x x (Emphasis
Subsequent Prosecution for the Same supplied)
Quasi-Offense

101
Evidently, the Diaz line of jurisprudence on double jeopardy merely extended to its logical Thus, for all intents and purposes, Buerano had effectively overruled Estipona.
conclusion the reasoning of Quizon.
It is noteworthy that the Solicitor General in Buerano, in a reversal of his earlier
There is in our jurisprudence only one ruling going against this unbroken line of stance in Silva, joined causes with the accused, a fact which did not escape the Courts
authority. Preceding Diaz by more than a decade, El Pueblo de Filipinas v. attention:
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 Then Solicitor General, now Justice Felix V. Makasiar, in his
property despite his previous conviction for multiple physical injuries arising from the same MANIFESTATION dated December 12, 1969 (page 82 of the Rollo) admits
reckless operation of a motor vehicle upon which the second prosecution was that the Court of Appeals erred in not sustaining petitioners plea of
based. Estiponas inconsistency with the post-war Diaz chain of jurisprudence suffices to double jeopardy and submits that its affirmatory decision dated January
impliedly overrule it. At any rate, all doubts on this matter were laid to rest in 1982 28, 1969, in Criminal Case No. 05123-CR finding petitioner guilty of
in Buerano.[37] There, we reviewed the Court of Appeals conviction of an accused for damage damage to property through reckless imprudence should be set aside,
to property for reckless imprudence despite his prior conviction for slight and less serious without costs. He stressed that if double jeopardy exists where the
physical injuries thru reckless imprudence, arising from the same act upon which the second reckless act resulted into homicide and physical injuries. then the same
charge was based. The Court of Appeals had relied on Estipona. We reversed on the strength consequence must perforce follow where the same reckless act caused
of Buan:[38] 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
Th[e] view of the Court of Appeals was inspired by the ruling of this equated with any amount of damages caused to a motors vehicle arising
Court in the pre-war case of People vs. Estipona decided on November 14, from the same mishap.[40] (Emphasis supplied)
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 Hence, we find merit in petitioners submission that the lower courts erred in refusing to
extend in his favor the mantle of protection afforded by the Double Jeopardy Clause. A more
Reason and precedent both coincide in that once convicted or fitting jurisprudence could not be tailored to petitioners case than People v.
acquitted of a specific act of reckless imprudence, the accused may not Silva, [41] a Diaz progeny. There, the accused, who was also involved in a vehicular collision,
be prosecuted again for that same act. For the essence of the quasi was charged in two separate Informations with Slight Physical Injuries thru Reckless
offense of criminal negligence under Article 365 of the Revised Penal Imprudence and Homicide with Serious Physical Injuries thru Reckless Imprudence. Following
Code lies in the execution of an imprudent or negligent act that, if his acquittal of the former, the accused sought the quashal of the latter, invoking the Double
intentionally done, would be punishable as a felony. The law penalizes Jeopardy Clause. The trial court initially denied relief, but, on reconsideration, found merit in
thus the negligent or careless act, not the result thereof. The gravity of the accuseds claim and dismissed the second case. In affirming the trial court, we quoted
the consequence is only taken into account to determine the penalty, it with approval its analysis of the issue following Diaz and its progeny People v. Belga:[42]
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 On June 26, 1959, the lower court reconsidered its Order of May 2,
persons, the offense (criminal negligence) remains one and the same, 1959 and dismissed the case, holding:
and can not be split into different crimes and prosecutions.
[T]he Court believes that the case falls squarely within the doctrine of
xxxx 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
. . . the exoneration of this appellant, Jose Buan, by the Justice Court of Malilipot, Albay, with the crime of physical injuries through
of the Peace (now Municipal) Court of Guiguinto, Bulacan, of the charge reckless imprudence arising from a collision between the two
of slight physical injuries through reckless imprudence, prevents his automobiles driven by them (Crim. Case No. 88). Without the aforesaid
being prosecuted for serious physical injuries through reckless complaint having been dismissed or otherwise disposed of, two other
imprudence in the Court of First Instance of the province, where both criminal complaints were filed in the same justice of the peace court, in
charges are derived from the consequences of one and the same connection with the same collision one for damage to property through
vehicular accident, because the second accusation places the appellant reckless imprudence (Crim. Case No. 95) signed by the owner of one of
in second jeopardy for the same offense.[39] (Emphasis supplied) the vehicles involved in the collision, and another for multiple physical

102
injuries through reckless imprudence (Crim. Case No. 96) signed by the reckless imprudence charged in the Rizal Court of First Instance. One of
passengers injured in the accident. Both of these two complaints were the tests of double jeopardy is whether or not the second offense
filed against Jose Belga only. After trial, both defendants were acquitted charged necessarily includes or is necessarily included in the offense
of the charge against them in Crim. Case No. 88. Following his acquittal, charged in the former complaint or information (Rule 113, Sec. 9).
Jose Belga moved to quash the complaint for multiple physical injuries Another test is whether the evidence which proves one would prove the
through reckless imprudence filed against him by the injured other that is to say whether the facts alleged in the first charge if proven,
passengers, contending that the case was just a duplication of the one would have been sufficient to support the second charge and vice versa;
filed by the Chief of Police wherein he had just been acquitted. The or whether one crime is an ingredient of the other. x x x
motion to quash was denied and after trial Jose Belga was convicted, xxxx
whereupon he appealed to the Court of First Instance of Albay. In the
meantime, the case for damage to property through reckless The foregoing language of the Supreme Court also
imprudence filed by one of the owners of the vehicles involved in the disposes of the contention of the prosecuting attorney that the
collision had been remanded to the Court of First Instance of Albay after charge for slight physical injuries through reckless imprudence
Jose Belga had waived the second stage of the preliminary investigation. could not have been joined with the charge for homicide with
After such remand, the Provincial Fiscal filed in the Court of First serious physical injuries through reckless imprudence in this
Instance two informations against Jose Belga, one for physical injuries case, in view of the provisions of Art. 48 of the Revised Penal
through reckless imprudence, and another for damage to property Code, as amended. The prosecutions contention might be true.
through reckless imprudence. Both cases were dismissed by the Court of But neither was the prosecution obliged to first prosecute the
First Instance, upon motion of the defendant Jose Belga who alleged accused for slight physical injuries through reckless imprudence
double jeopardy in a motion to quash. On appeal by the Prov. Fiscal, the before pressing the more serious charge of homicide with
order of dismissal was affirmed by the Supreme Court in the following serious physical injuries through reckless imprudence. Having
language: . first prosecuted the defendant for the lesser offense in the
Justice of the Peace Court of Meycauayan, Bulacan, which
The question for determination is whether acquitted the defendant, the prosecuting attorney is not now in
the acquittal of Jose Belga in the case filed by a position to press in this case the more serious charge of
the chief of police constitutes a bar to his homicide with serious physical injuries through reckless
subsequent prosecution for multiple physical imprudence which arose out of the same alleged reckless
injuries and damage to property through imprudence of which the defendant have been previously
reckless imprudence. cleared by the inferior court.[43]

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 Significantly, the Solicitor General had urged us in Silva to reexamine Belga (and
reckless driving under sec. 52 of the Revised Motor Vehicle Law, for having hence, Diaz) for the purpose of delimiting or clarifying its application.[44] We declined the
driven an automobile in a ῾fast and reckless manner ... thereby causing an invitation, thus:
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 The State in its appeal claims that the lower court erred in
thereafter the city attorney filed an information in the Court of First Instance dismissing the case, on the ground of double jeopardy, upon the basis of
of Rizal, charging the same accused with damage to property thru reckless the acquittal of the accused in the JP court for Slight Physical Injuries,
imprudence. The amount of the damage was alleged to be P249.50. Pleading thru Reckless Imprudence. In the same breath said State, thru the
double jeopardy, the accused filed a motion, and on appeal by the Solicitor General, admits that the facts of the case at bar, fall squarely on
Government we affirmed the ruling. Among other things we there said the ruling of the Belga case x x x, upon which the order of dismissal of the
through Mr. Justice Montemayor lower court was anchored. The Solicitor General, however, urges a re-
examination of said ruling, upon certain considerations for the purpose of
The next question to determine is the relation between the delimiting or clarifying its application. We find, nevertheless, that further
first offense of violation of the Motor Vehicle Law prosecuted before the elucidation or disquisition on the ruling in the Belga case, the facts of
Pasay City Municipal Court and the offense of damage to property thru which are analogous or similar to those in the present case, will yield no

103
practical advantage to the government. On one hand, there is nothing Ponce invokes), even though under Republic Act No. 7691,[50] the MeTC has now exclusive
which would warrant a delimitation or clarification of the applicability of original jurisdiction to impose the most serious penalty under Article 365 which is prision
the Belga case. It was clear. On the other, this Court has reiterated the correccional in its medium period.
views expressed in the Belga case, in the identical case of Yap v. Hon.
Lutero, etc., L-12669, April 30, 1959.[45] (Emphasis supplied) 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
Article 48 Does not Apply to Acts Penalized apply and the act penalized as a light offense is tried separately from the resulting acts
Under Article 365 of the Revised Penal Code penalized as grave or less grave offenses.
The confusion bedeviling the question posed in this petition, to which the MeTC succumbed,
stems from persistent but awkward attempts to harmonize conceptually incompatible The second jurisprudential path nixes Article 48 and sanctions a single prosecution
substantive and procedural rules in criminal law, namely, Article 365 defining and penalizing of all the effects of the quasi-crime collectively alleged in one charge, regardless of their
quasi-offenses and Article 48 on complexing of crimes, both under the Revised Penal Code. number or severity,[51] penalizing each consequence separately. Thus, in Angeles v.
Article 48 is a procedural device allowing single prosecution of multiple felonies falling under Jose,[52] we interpreted paragraph three of Article 365, in relation to a charge alleging
either of two categories: (1) when a single act constitutes two or more grave or less grave reckless imprudence resulting in damage to property and less serious physical injuries, as
felonies (thus excluding from its operation light felonies[46]); and (2) when an offense is a follows:
necessary means for committing the other. The legislature crafted this procedural tool to [T]he third paragraph of said article, x x x reads as follows:
benefit the accused who, in lieu of serving multiple penalties, will only serve the maximum of When the execution of the act covered by
the penalty for the most serious crime. this article shall have only resulted in damage to the
property of another, the offender shall be punished
In contrast, Article 365 is a substantive rule penalizing not an act defined as a by a fine ranging from an amount equal to the value
felony but the mental attitude x x x behind the act, the dangerous recklessness, lack of care of said damage to three times such value, but which
or foresight x x x,[47] a single mental attitude regardless of the resulting consequences. Thus, shall in no case be less than 25 pesos.
Article 365 was crafted as one quasi-crime resulting in one or more consequences. The above-quoted provision simply means that if there is only
damage to property the amount fixed therein shall be imposed, but if
Ordinarily, these two provisions will operate smoothly. Article 48 works to combine there are also physical injuries there should be an additional penalty for
in a single prosecution multiple intentional crimes falling under Titles 1-13, Book II of the the latter. The information cannot be split into two; one for the physical
Revised Penal Code, when proper; Article 365 governs the prosecution of imprudent acts and injuries, and another for the damage to property, x x x.[53] (Emphasis
their consequences. However, the complexities of human interaction can produce a hybrid supplied)
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 By additional penalty, the Court meant, logically, the penalty scheme under Article 365.
light, less grave or grave offenses. The ensuing prosecutorial dilemma is obvious: how
should such a quasi-crime be prosecuted? Should Article 48s framework apply to complex Evidently, these approaches, while parallel, are irreconcilable. Coherence in this
the single quasi-offense with its multiple (non-criminal) consequences (excluding those field demands choosing one framework over the other. Either (1) we allow the complexing of
amounting to light offenses which will be tried separately)? Or should the prosecution a single quasi-crime by breaking its resulting acts into separate offenses (except for light
proceed under a single charge, collectively alleging all the consequences of the single quasi- felonies), thus re-conceptualize a quasi-crime, abandon its present framing under Article 365,
crime, to be penalized separately following the scheme of penalties under Article 365? discard its conception under the Quizon and Diaz lines of cases, and treat the multiple
Jurisprudence adopts both approaches. Thus, one line of rulings (none of which consequences of a quasi-crime as separate intentional felonies defined under Titles 1-13,
involved the issue of double jeopardy) applied Article 48 by complexing one quasi-crime with Book II under the penal code; or (2) we forbid the application of Article 48 in the prosecution
its multiple consequences[48] unless one consequence amounts to a light felony, in which and sentencing of quasi-crimes, require single prosecution of all the resulting acts regardless
case charges were split by grouping, on the one hand, resulting acts amounting to grave or of their number and severity, separately penalize each as provided in Article 365, and thus
less grave felonies and filing the charge with the second level courts and, on the other hand, maintain the distinct concept of quasi-crimes as crafted under Article 365, articulated
resulting acts amounting to light felonies and filing the charge with the first level in Quizon and applied to double jeopardy adjudication in the Diaz line of cases.
courts.[49] Expectedly, this is the approach the MeTC impliedly sanctioned (and respondent

104
A becoming regard of this Courts place in our scheme of government denying it the occasions of constitutionally impermissible second prosecutions are avoided, not to mention
power to make laws constrains us to keep inviolate the conceptual distinction between that scarce state resources are conserved and diverted to proper use.
quasi-crimes and intentional felonies under our penal code. Article 48 is incongruent to the Hence, we hold that prosecutions under Article 365 should proceed from a single
notion of quasi-crimes under Article 365. It is conceptually impossible for a quasi-offense to charge regardless of the number or severity of the consequences. In imposing penalties, the
stand for (1) a single act constituting two or more grave or less grave felonies; or (2) judge will do no more than apply the penalties under Article 365 for each consequence
an offense which is a necessary means for committing another. This is why, way back in 1968 alleged and proven. In short, there shall be no splitting of charges under Article 365, and only
in Buan, we rejected the Solicitor Generals argument that double jeopardy does not bar a one information shall be filed in the same first level court.[55]
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 Our ruling today secures for the accused facing an Article 365 charge a stronger
injuries through reckless imprudence following Article 48 of the Revised Penal Code: 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
The Solicitor General stresses in his brief that the charge for Article 48, but any disadvantage thus caused is more than compensated by the certainty of
slight physical injuries through reckless imprudence could not be joined non-prosecution for quasi-crime effects qualifying as light offenses (or, as here, for the more
with the accusation for serious physical injuries through reckless serious consequence prosecuted belatedly). If it is so minded, Congress can re-craft Article
imprudence, because Article 48 of the Revised Penal Code allows only the 365 by extending to quasi-crimes the sentencing formula of Article 48 so that only the most
complexing of grave or less grave felonies. This same argument was severe penalty shall be imposed under a single prosecution of all resulting acts, whether
considered and rejected by this Court in the case of People vs. [Silva] x x penalized as grave, less grave or light offenses. This will still keep intact the distinct concept
x: 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.
[T]he prosecutions contention might be true. But
neither was the prosecution obliged to first prosecute the WHEREFORE, we GRANT the petition. We REVERSE the Orders dated 2 February 2006 and 2
accused for slight physical injuries through reckless May 2006 of the Regional Trial Court of Pasig City, Branch 157. We DISMISS the Information
imprudence before pressing the more serious charge of in Criminal Case No. 82366 against petitioner Jason Ivler y Aguilar pending with
homicide with serious physical injuries through reckless the Metropolitan Trial Court of Pasig City, Branch 71 on the ground of double jeopardy.
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 Let a copy of this ruling be served on the President of the Senate and the Speaker of the
prosecuting attorney is not now in a position to press in this House of Representatives.
case the more serious charge of homicide with serious
physical injuries through reckless imprudence which arose out SO ORDERED.
of the same alleged reckless imprudence of which the
defendant has been previously cleared by the inferior court.
Republic of the Philippines
SUPREME COURT
[W]e must perforce rule that the exoneration of this appellant x x x by Manila
the Justice of the Peace x x x of the charge of slight physical injuries
through reckless imprudence, prevents his being prosecuted for serious EN BANC
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 G.R. No. 97214 July 16, 1994
offense.[54] (Emphasis supplied)
ERNESTO NAVALLO, petitioner,
Indeed, this is a constitutionally compelled choice. By prohibiting the splitting of charges
vs.
under Article 365, irrespective of the number and severity of the resulting acts, rampant
HONORABLE SANDIGANBAYAN (SECOND DIVISION) and PEOPLE OF THE
PHILIPPINES, respondents.
105
Pepino Law Office for petitioner. already been arraigned before the case was transferred to the Sandiganbayan, the RTC
should continue taking cognizance of the case. The matter was referred to the Office of the
The Solicitor General for the People of the Philippines. Ombudsman which held otherwise. The information was docketed (Criminal Case No. 13696)
with the Sandiganbayan. A new order for Navallo's arrest was issued by the Sandiganbayan.
The warrant was returned with a certification by the RTC Clerk of Court that the accused had
posted a bail bond. The bond, having been later found to be defective,
VITUG, J.: on 30 August 1989, a new bond was approved and transmitted to the Sandiganbayan.

On 11 May 1978, an information charging petitioner with having violated Article 217, Navallo filed a motion to quash, contending (1) that the Sandiganbayan had no jurisdiction
paragraph 4, of the Revised Penal Code, was filed with the then Court of First Instance ("CFI") over the offense and the person of the accused and (2) that since the accused had already
of Surigao del Norte (docketed Criminal Case No. 299). It read: been arraigned by the RTC, the attempt to prosecute him before the Sandiganbayan would
constitute double jeopardy. On 15 September 1989, the Sandiganbayan issued a resolution
That on or before January 27, 1978 in the municipality of del Carmen, Province of denying Navallo's motion. On 20 October 1989, Navallo was arraigned; he pleaded, "not
Surigao del Norte and within the jurisdiction of this Honorable Court, accused who guilty," to the charge. Trial ensued.
is the Collecting and Disbursing Officer of the Numancia National Vocational
School, which school is also located at del Carmen, Surigao del Norte and while a Evidence for the Prosecution:
Collecting and Disbursing Officer of the aforestated school therefore was holding in
trust moneys and/or properties of the government of the Republic of the On 27 January 1978, the Provincial Auditor of Surigao del Norte, Antonio Espino, made a
Philippines and holding in trust public funds with all freedom, intelligence, criminal preliminary audit examination of cash and other accounts of Ernesto Navallo (then Collecting
intent and intent of gain, did then and there voluntarily, unlawfully, feloniously and and Disbursing Officer of Numancia National Vocational School). Espino found Navallo to be
without lawful authority appropriate and misappropriate to his own private short of P16,483.62. The auditor, however, was then merely able to prepare a cash count
benefit, public funds he was holding in trust for the Government of the Philippines sheet since he still had to proceed to other municipalities. Before departing, Espino sealed
in the total sum of SIXTEEN THOUSAND FOUR HUNDRED EIGHTY THREE PESOS and the vault of Navallo.
SIXTY-TWO CENTAVOS (P16,483.62), Philippine Currency, which total sum accused
failed to account during an audit and failed as well to restitute despite demands by On 30 January 1978, Leopoldo A. Dulguime was directed by Espino to complete the
the office of the Provincial Auditor, to the damage and prejudice of the preliminary examination and to conduct a final audit. Dulguime broke the seal, opened the
Government equal to the amount misappropriated. vault, and made a new cash count. Dulguime next examined the cashbook of Navallo.
Dulguime did not examine the official receipts reflected in the cashbook, said receipts having
Act contrary to par. 4 of Article 217, of the Revised Penal Code with a penalty been previously turned over to the Officer of the Provincial Auditor. After the audit, he had
of Reclusion Temporal, minimum and medium periods and in addition to penalty of the cashbook likewise deposited with the same office. The audit covered the period from July
perpetual special disqualification and fine as provided in the same Article. 1 1976 to January 1978 on the basis of postings and record of collections certified to by
Navallo. Dulguime confirmed Navallo's shortage of P16,483.62. Dulguime made a Report of
A warrant of arrest was issued, followed by two alias warrants of arrest, but accused- Examination and wrote Navallo a letter demanding the restitution of the missing amount.
petitioner Ernesto Navallo still then could not be found. The latter neither complied nor offered any explanation for the shortage. The official receipts
and cashbook, together with some other records, were subsequently lost or damaged on
Meanwhile, on 10 December 1978, Presidential Decree No. 1606 took effect creating the account of a typhoon that visited the province.
Sandiganbayan and conferring on it original and exclusive jurisdiction over crimes committed
by public officers embraced in Title VII of the Revised Penal Code. Evidence for the Defense:

On 15 November 1984, Navallo was finally arrested. He was, however, later released on The accused, Navallo, testified that in 1970, he was a Clerk I in the Numancia National
provisional liberty upon the approval of his property bail bond. When arraigned by the Vocational School. In 1976, he was appointed Collecting and Disbursing Officer of the school.
Regional Trial Court ("RTC") on 18 July 1985, he pleaded not guilty. On 22 May 1986, upon His duties included the collection of tuition fees, preparation of vouchers for salaries of
motion of the prosecution, the RTC transferred the case and transmitted its records to the teachers and employees, and remittance of collections exceeding P500.00 to the National
Sandiganbayan. On Treasury. Even while he had not yet received his appointment papers, he, together with, and
27 January 1989, Special Prosecutor Luz L. Quiñones-Marcos opined that since Navallo had upon the instructions of, Cesar Macasemo (the Principal and Navallo's predecessor as
Collecting and Disbursing Officer of the school), was himself already doing entries in the
106
cashbook. Navallo and Macasemo thus both used the vault. Navallo said that he started the Accused-petitioner's motion for reconsideration was denied by the Sandiganbayan
job of a disbursement officer in June 1977, and began to discharge in full the duties of his in its resolution of 05 February 1991.
new position (Collection and Disbursement Officer) only in 1978. There was no formal turn
over of accountability from Macasemo to Navallo. Hence, the instant petition.

Gainsaying the prosecution's evidence, Navallo continued that the charge against him was Four issues are raised in this appeal —
motivated by a personal grudge on the part of Espino. On
25 January 1978, he said, he was summoned to appear at the Numancia National Vocational 1. Whether or not the Sandiganbayan acquired jurisdiction to try and decide the
School where he saw Espino and Macasemo. The safe used by him and by Macasemo was offense filed against petitioner in spite of the fact that long before the law creating
already open when he arrived, and the cash which was taken out from the safe was placed the Sandiganbayan took effect, an Information had already been filed with the then
on top of a table. He did not see the actual counting of the money and no actual audit of his Court of First Instance of Surigao del Norte.
accountability was made by Espino. Navallo signed the cash count only because he was
pressured by Macasemo who assured him that he (Macasemo) would settle everything. The 2. Whether or not double jeopardy set in when petitioner was arraigned by the
collections in 1976, reflected in the Statement of Accountability, were not his, he declared, Regional Trial Court on July 18, 1985.
but those of Macasemo who had unliquidated cash advances.
3. Whether or not petitioner was under custodial investigation when he signed the
Navallo admitted having received the demand letter but he did not reply because he was certification prepared by State Auditing Examiner Leopoldo Dulguime.
already in Manila looking for another employment. He was in Manila when the case was filed
against him. He did not exert any effort to have Macasemo appear in the preliminary 4. Whether or not the guilt of petitioner has been established by the prosecution
investigation, relying instead on Macasemo's assurance that he would settle the matter. He, beyond reasonable doubt as to warrant his conviction for the offense imputed
however, verbally informed the investigating fiscal that the shortage represented the against him.
unliquidated cash advance of Macasemo.
We see no merit in the petition.
The Appealed Decision:
On 10 December 1978, Presidential Decree No. 1606 took effect providing, among other
On 08 November 1990, after evaluating the evidence, the Sandiganbayan reached a decision, things, thusly:
and it rendered judgment, thus:
Sec. 4. Jurisdiction. — The Sandiganbayan shall have jurisdiction over:
WHEREFORE, the Court finds the accused ERNESTO NAVALLO y GALON GUILTY
beyond reasonable doubt as principal of the crime of malversation of public funds
(a) Violations of Republic Act No. 3019, as amended, otherwise known as
defined and penalized under Article 217, paragraph 4, of the Revised Penal Code.
the Anti-Graft and Corrupt Practices Act, and Republic Act No. 1379;
Accordingly and there being no modifying circumstances nor reason negating the
(b) Crimes committed by public officers and employees, including those
application of the Indeterminate Sentence Law, as amended, the Court imposes
employed in government-owned or controlled corporations, embraced in
upon the accused the indeterminate sentence ranging from TEN (10) YEARS and
Title VII of the Revised Penal Code, whether simple or complexed with
ONE (1) DAY of prision mayor as minimum to SIXTEEN (16) YEARS, FIVE (5) MONTHS
other crimes; and
and ELEVEN (11) DAYS of reclusion temporal as maximum; the penalty of perpetual
special disqualification, and a fine in the amount of SIXTEEN THOUSAND FOUR
(c) Other crimes or offenses committed by public officers or employees,
HUNDRED EIGHTY THREE PESOS AND SIXTY-TWO CENTAVOS (P16,483.62),
including those employed in government-owned or controlled
Philippine Currency.
corporations, in relation to their office.
The Court further orders the accused to restitute the amount malversed
xxx xxx xxx
to the Government.

SO ORDERED. 2

107
Sec. 8. Transfer of cases. — As of the date of the effectivity of this decree, any case said offense, or (d) any offense which necessarily includes, or is necessarily
cognizable by the Sandiganbayan within its exclusive jurisdiction where none of the included in, the first offense charged, can rightly be barred.
accused has been arraigned shall be transferred to the Sandiganbayan.
In the case at bench, the RTC was devoid of jurisdiction when it conducted an arraignment of
The law is explicit and clear. A case falling under the jurisdiction of the Sandiganbayan shall the accused which by then had already been conferred on the Sandiganbayan. Moreover,
be transferred to it so long as the accused has not as yet been properly arraigned elsewhere neither did the case there terminate with conviction or acquittal nor was it dismissed.
on the date of effectivity of the law, i.e., on 10 December 1978. The accused is charged with
having violated paragraph 4, Article 217, of the Revised Penal Code — Accused-petitioner claims to have been deprived of his constitutional rights under Section
12, Article III, of the 1987 Constitution. 3 Well-settled is the rule that such rights are invocable
Art. 217. Malversation of public funds or property. — Presumption of Malversation. only when the accused is under "custodial investigation," or is "in custody
— Any public officer who, by reason of the duties of his office, is accountable for investigation," 4 which we have since defined as any "questioning initiated by law
public funds or property, shall appropriate the same, or shall take or enforcement officers after a person has been taken into custody or otherwise deprived of his
misappropriate or shall consent, or through abandonment or negligence, shall freedom of action in any significant way." 5 A person under a normal audit examination is not
permit any other person to take such public funds or property, wholly or partially, under custodial investigation. An audit examiner himself can hardly be deemed to be the law
or shall otherwise be guilty of the misappropriation or malversation of such funds enforcement officer contemplated in the above rule. In any case, the allegation of his having
or property, shall suffer: been "pressured" to sign the Examination Report prepared by Dulguime appears to be belied
by his own testimony. To quote:
xxx xxx xxx
Q How were you pressured?
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 A Mr. Macasemo told me to sign the report because he will be the one to
thousand pesos. If the amount exceeds the latter, the penalty shall be reclusion settle everything.
temporal in its maximum period to reclusion perpetua.
xxx xxx xxx
an offense which falls under Title VII of the Revised Penal Code and, without
question, triable by the Sandiganbayan. Navallo's arraignment before the RTC on Q Why did you allow yourself to be pressured when you will be the one
18 July 1985 is several years after Presidential Decree No. 1606, consigning that ultimately to suffer?
jurisdiction to the Sandiganbayan, had become effective.
A Because he told me that everything will be all right and that he will be
Accused-petitioner, invoking Section 7, Rule 117, of the Revised Rules of Court, pleads double the one to talk with the auditor.
jeopardy. We cannot agree. Double jeopardy requires the existence of the following
requisites: Q Did he tell you exactly what you will do with the auditor to be relieved
of responsibility?
(1) The previous complaint or information or other formal charge is sufficient in form and
substance to sustain a conviction; A No, your Honor.

(2) The court has jurisdiction to try the case; Q Why did you not ask him?

(3) The accused has been arraigned and has pleaded to the charge; and A I was ashamed to ask him, your Honor, because he was my
superior. 6
(4) The accused is convicted or acquitted or the case is dismissed without his express
consent. Navallo may have been persuaded, but certainly not pressured, to sign the
auditor's report. Furthermore, Navallo again contradicted himself when, in his very
When all the above elements are present, a second prosecution for (a) the same petition to this Court, he stated:
offense, or (b) an attempt to commit the said offense, or (c) a frustration of the

108
Bearing in mind the high respect of the accused with his superior officer and taking SO ORDERED.
into consideration his gratitude for the favors that his superior officer has extended
him in recommending him the position he held even if he was not an accountant,
he readily agreed to sign the auditor's report even if he was not given the
opportunity to explain the alleged shortage. 7 Republic of the Philippines
SUPREME COURT
Finally, accused-petitioner challenges the sufficiency of evidence against him. Suffice it to say Manila
that the law he contravened itself creates a presumption of evidence. Article 217 of the
Revised Penal Code states that "(t)he failure of a public officer to have duly forthcoming any FIRST DIVISION
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 G.R. No. 99287 June 23, 1992
personal use." An accountable officer, therefore, may be convicted of malversation even in
the absence of direct proof of misappropriation as long as there is evidence of shortage in his PEOPLE OF THE PHILIPPINES, petitioner,
accounts which he is unable to explain. 8Not least insignificant is the evaluation of the vs.
evidence of the Sandiganbayan itself which has found thusly: HON. MARTIN S. VILLARAMA, JR., AND JAIME MANUEL, respondents.

The claim that the amount of the shortage represented the unliquidated cash MEDIALDEA, J.:
advance of Macasemo does not inspire belief. No details whatsoever were given by
the accused on the matter such as, for instance, when and for what purpose was
This petition for certiorari seeks to reverse the decision and the order of the Regional Trial
the alleged cash advance granted, what step or steps were taken by Navallo or
Court, National Capital Region at Pasig, Metro Manila dated February 25 and March 13, 1991,
Macasemo to liquidate it. In fact, Navallo admitted that he did not even ask
respectively in Criminal Case No. 1345-D entitled "People of the Philippines v. Jaime Manuel
Macasemo as to how he (Navallo) could be relieved of his responsibility for the
y Ohide" for violation of Section 16, Article 111, RA 6425, as amended.
missing amount when he was promised by Macasemo that everything would be all
right. When Navallo was already in Manila, he did not also even write Macasemo
Briefly, the antecedent facts of the case are as follows:
about the shortage.

On August 24, 1990, Jaime Manuel y Ohide was charged with violation of Section 16,
As to the collections made in 1976 which Navallo denied having made, the
Republic Act No. 6425, as amended. The penalty prescribed in the said section
evidence of the prosecution shows that he assumed the office of Collecting and
is imprisonment ranging from six years and one day to twelve years and a fine ranging from
Disbursing Officer in July 1976 and the cashbook which was examined during the
six thousand to twelve thousand pesos. The information against him reads:
audit contained entries from July 1976 to January 1978, which he certified to.
Navallo confirmed that indeed he was appointed Collecting and Disbursing Officer
in 1976. That on or about the 21st day of August, 1990, in the Municipality of San Juan,
Metro Manila, Philippines, and within the jurisdiction of this Honorable Court, the
above-named accused, without the corresponding license or prescription did then
Finally, the pretense that the missing amount was the unliquidated cash advance of
and there willfully, unlawfully and feloniously have in his possession, custody and
Macasemo and that Navallo did not collect tuition fees in 1976 was advanced for
control 0.08 grams of Methamphetamin Hydrocloride (Shabu) wrapped with an
the first time during the trial, that is, 12 long solid years after the audit on January
aluminum foil, which is a regulated drug.
30, 1978. Nothing was said about it at the time of the audit and immediately
thereafter.
CONTRARY TO LAW. (p. 15, Rollo)
Findings of fact made by a trial court are accorded the highest degree of respect by an
appellate tribunal and, absent a clear disregard of the evidence before it that can otherwise During the arraignment, the accused entered a plea of not guilty. Thereafter, trial ensued. On
affect the results of the case, those findings should not be ignored. We see nothing on record November 21, 1990, the prosecution rested its case. On January 9, 1991, counsel for private
in this case that can justify a deviation from the rule. respondent verbally manifested in open court that private respondent was willing to change
his former plea of "not guilty" to that of "guilty" to the lesser offense of violation of Section
17, R.A. No. 6425, as amended. The said section provides a penalty of imprisonment ranging
WHEREFORE, the petition is DISMISSED and the decision of respondent Sandiganbayan is
from six months and one day to four years and a fine ranging from six hundred to four
AFFIRMED in toto.
109
thousand pesos shall be imposed upon any pharmacist, physician, dentist, veterinarian, years and one (1) day of prision correccional, to pay a fine of Two Thousand Pesos
manufacturer, wholesaler who violates or fails to keep the records required under Section 25 (P2,000.00) with subsidiary imprisonment in case of insolvency and to pay the
of the Act; if the violation or failure involves a regulated drug. That same day, the respondent costs.
Judge issued an order (Annex "B," p. 17, Rollo) directing private respondent to secure the
consent of the prosecutor to the change of plea, and set the promulgation of decision on In the service of his sentence, the accused shall be credited in full with the period
January 30, 1991. On January 30, 1991, respondent Judge postponed the promulgation of the of his preventive imprisonment.
decision to February 18, 1991 to give private respondent another opportunity to secure the
consent of the prosecutor. Also, on the said date, the private respondent filed his Request to Pursuant to Section 20, Article IV of Republic Act No. 6425, as amended, let the
Plead Guilty to a Lesser Offense. On February 18, 1991, respondent Judge issued another 0.08 grams of methamphetamine hydrochloride (shabu) subject matter of this case
order (Annex "D," p. 19, Rollo) postponing the promulgation of decision to February 25, 1991 be confiscated and forfeited in favor of the Government and be turned over to the
to give private respondent further opportunity to secure the consent of the prosecutor. On Dangerous Drugs Board Custodian, NBI, to be disposed of according to law.
February 20, 1991, the prosecutor filed his Opposition to the Request to Plead Guilty to a
Lesser Offense (annex "E," p. 20, Rollo) on the grounds that: (1) the prosecution already SO ORDERED. (Rollo, pp. 24-25)
rested its case on November 21, 1990; (2) the possibility of conviction of private respondent
of the crime originally charged was high because of the strong evidence of the prosecution; Forthwith, the prosecutor filed a Motion for Reconsideration of the aforestated decision but
and (3) the valuable time which the court and the prosecutor had expended would be put to the same was denied in the order of March 13, 1991, which states:
waste. On February 21, 1991, private respondent filed his Reply to Opposition with Leave of
Court to Plead Guilty to a Lesser Offense (annex F, p. 21, Rollo), alleging therein, among other
It is the considered view of this Court that Section 2, Rule 116 of the Rules should
matters, that the Rules on Criminal Procedure does not fix a specific period within which an
not be interpreted to the letter in "victimless crimes" such as this case, possession
accused is allowed to plead guilty to a lesser offense. Subsequently, on February 25, 1991,
of regulated drugs, which is more of a "social disease" case so to speak and in the
respondent Judge rendered a decision granting the accused's motion, to wit:
light of (the) provision itself that "with the consent of the offended party and the
fiscal." Is the fiscal the offended party?
It may well be appropriate at this time to state that the accused is not availing of
the "voluntary plea of guilt" as a mitigating circumstance envisioned under Article
Moreover as the records show, the Office of the Provincial Fiscal has not been very
13, paragraph 7 of the Revised Penal Code. The accused simply wants to avail of
consistent on this "lesser offense plea" thing. It would perhaps be in consonance
Section 2, Rule 116 of the Rules. As pointed out by Atty. Fernando Fernandez of the
with justice that a guideline be laid down by the said Office, if only to apprise the
PAO, there is nothing in the said provision which requires that the same be availed
public, the Court and the accused on when said consent is to be given by the fiscal
of prior to the presentation of the evidence for the prosecution. It is conceded
as a matter of course and when it will be withheld. For to leave the same undefined
though, as pointed out by the prosecution, that such is a waste of time on the part
is in the mind of this Court, not conducive to a "just, speedy and inexpensive
of the Office of the Provincial Prosecutor and of the Court, nonetheless, this Court,
determination of every action and proceeding.
having in mind Section 2 of Rule 1 which provides that the rules shall be liberally
construed in order to promote their object and to assist the parties in obtaining
SO ORDERED. (Rollo, pp. 41-42)
just, speedy and inexpensive determination of every action and proceeding and
also for humanitarian considerations, hereby APPROVES and GRANTS the Motion at
bar. Hence, this petition raising the following issues:

Moreover, such an admission of guilt by the accused indicates his submission to the I. WHETHER OR NOT RESPONDENT JUDGE ERRED IN GRANTING PRIVATE
law and a moral disposition on his part to reform. (Vide: People vs. Coronel, G.R. RESPONDENT'S REQUEST TO PLEAD GUILTY TO A LESSER OFFENSE BECAUSE THE
No. L-19091, June 30, 1966) REQUEST WAS FILED OUT OF TIME AND THE CONSENT THERETO OF THE
PROSECUTOR AND THE OFFENDED PARTY WAS NOT OBTAINED.
Let it be made of record however that the Court is not putting a premium on the
change of heart of the accused in mid-stream. II. WHETHER OR NOT RESPONDENT JUDGE ERRED IN CONVICTING PRIVATE
RESPONDENT OF THE LESSER OFFENSE OF VIOLATION OF SECTION 17, REPUBLIC
ACT NO. 6425, AS AMENDED, INSTEAD OF THE OFFENSE ORIGINALLY CHARGED OF
WHEREFORE, finding the accused JAIME MANUEL Y CHIDE @ Manny guilty beyond
VIOLATION OF SECTION 16 OF THE SAME LAW, IN VIEW OF THE ABSENCE OF A
reasonable-doubt of the crime of violation of Section 17, Article III, Republic Act
VALID CHANGE OF PLEA. (Rollo, pp. 74-75)
No. 6425, as amended, he is hereby sentenced to a straight prison term of two (2)
110
In the resolution of January 20, 1992, We issued a temporary restraining order to enjoin the As evident from the foregoing, the trial court need not wait for a guideline from the Office of
respondent Judge from enforcing the questioned judgment in the aforesaid criminal case the Prosecutor before it could act on the accused's motion to change plea. As soon as the
(Rollo, p. 86). fiscal has submitted his comment whether for or against the said motion, it behooves the
trial court to assiduously study the prosecution's evidence as well as all the circumstances
The petition is meritorious. upon which the accused made his change of plea to the end that the interests of justice and
of the public will be served. A reading of the disputed rulings in this case failed to disclose the
Plea bargaining in criminal cases, is a process whereby the accused and the prosecution work strength or weakness of the prosecution's evidence. Apparently, the judgment under review
out a mutually satisfactory disposition of the case subject to court approval (see Black Law dwelt solely on only one of the three objections (i.e.waste of valuable time already spent by
Dictionary, 5th Ed., 1979, p. 1037). It usually involves the defendant's pleading guilty to a the court and prosecution) interposed by the Fiscal which was the least persuasive. It must
lesser offense or to only one or some of the counts of a multi-count indictment in return for a be recalled that the other two grounds of objection were that the prosecution had already
lighter sentence than that for the graver charge (ibid). Ordinarily, plea-bargaining is made rested its case and that the possibility of conviction of the private respondent of the crime
during the pre-trial stage of the criminal proceedings. However, the law still permits the originally charged was high because of the strong evidence of the prosecution. Absent any
accused sufficient opportunity to change his plea thereafter. Thus, Rule 116 of the Rules of finding on the weight of the evidence in hand, the respondent judge's acceptance of the
Court, Section 2 thereof, provides: private respondent's change of plea is improper and irregular.

Sec. 2. Plea of guilty to a lesser offense. — The accused, with the consent of the The counsel for the private respondent argues that only the consent of the fiscal is needed in
offended party and the fiscal, may be allowed by the trial court to plead guilty to a crimes involving, violation of RA 6425 as amended because there is no offended party to
lesser offense, regardless of whether or not it is necessarily included in the crime speak Of and that even the latter's consent is not an absolute requirement before the trial
charged, or is cognizable by a court of lesser jurisdiction than the trial court. No court could allow the accused to change his plea.
amendment of the complaint or information is necessary.
We do not agree. The provision of Section 2, Rule 116 is clear. The consent of both the Fiscal
A conviction under this plea, shall be equivalent to a conviction of the offense and the offended party is a condition precedent to a valid plea of guilty to a lesser offense
charged for purposes of double jeopardy. (see Manuel v. Velasco, et al., supra, p. 6). The reason for this is obvious. The Fiscal has full
control of the prosecution of criminal actions (Cinco, et al. v. Sandiganbayan, et al., G.R. Nos.
However, the acceptance of an offer to plead guilty to a lesser offense under the 92362-67, October 15, 1991). Consequently, it is his duty to always prosecute the proper
aforequoted rule is not demandable by the accused as a matter of right but is a matter that is offense, not any lesser or graver one, when the evidence in his hands can only sustain the
addressed entirely to the sound discretion of the trial court (Manuel v. Velasco, et al., G.R. former (seePeople v. Parohinog, supra, concurring opinion of then Justice Barredo, p. 377;
No. 94732, February 26, 1991, En Banc Resolution). also Vda. de Bagatua, et al. v. Revilla, et al., 104 Phil. 393, 395-396).

In the case at bar, the private respondent (accused) moved to plead guilty to a lesser offense It would not also be correct to state that there is no offended party in crimes under RA 6425
after the prosecution had already rested its case. In such situation, jurisprudence has as amended. While the acts constituting the crimes are not wrong in themselves, they are
provided the trial court and the Office of the Prosecutor with yardstick within which their made so by law because they infringe upon the rights of others. The threat posed by drugs
discretion may be properly exercised. Thus, in People v. Kayanan (L-39355, May 31, 1978, 83 against human dignity and the integrity of society is malevolent and incessant (People v. Ale,
SCRA 437, 450), We held that the rules allow such a plea only when the prosecution does not G.R. No. 70998, October 14, 1986, 145 SCRA 50, 58). Such pernicious effect is felt not only by
have sufficient evidence to establish guilt of the crime charged. In his concurring opinion the addicts themselves but also by their families. As a result, society's survival is endangered
in People v. Parohinog (G.R. No. L-47462, February 28, 1980, 96 SCRA 373, 377), then Justice because its basic unit, the family, is the ultimate victim of the drug menace. The state is,
Antonio Barredo explained clearly and tersely the rationale of the law: therefore, the offended party in this case. As guardian of the rights of the people, the
government files the criminal action in the name of the People of the Philippines. The Fiscal
. . . (A)fter the prosecution had already rested, the only basis on which the fiscal who represents the government is duty bound to defend the public interests, threatened by
and the court could rightfully act in allowing the appellant to charge his former plea crime, to the point that it is as though he were the person directly injured by the offense
of not guilty to murder to guilty to the lesser crime of homicide could be nothing (see United States v. Samio, 3 Phil. 691, 696). Viewed in this light, the consent of the
more nothing less than the evidence already in the record. The reason for this being offended party, i.e. the state, will have to be secured from the Fiscal who acts in behalf of the
that Section 4 of Rule 118 (now Section 2, Rule 116) under which a plea for a lesser government.
offense is allowed was not and could not have been intended as a procedure for
compromise, much less bargaining. Lastly, the counsel for the private respondent maintains that the private respondent's change
of plea and his conviction to the lesser offense of violation of Section 17, RA No. 6425 as
111
amended is no longer open to review otherwise his constitutional right against double
jeopardy will be violated.

Such supposition has no basis. The right against double jeopardy given to the accused in
Section 2, Rule 116 of the Rules of Court applies in cases where both the fiscal and the
offended party consent to the private respondent's change of plea. Since this is not the
situation here, the private respondent cannot claim this privilege. Instead, the more
pertinent and applicable provision is that found in Section 7, Rule 117 which states:

Sec. 7. Former conviction or acquittal; double jeopardy. —


Republic of the Philippines
xxx xxx xxx SUPREME COURT
Manila
However, the conviction of the accused shall not be a bar to another
prosecution for an offense which necessarily includes the offense EN BANC
charged in the former complaint or information under any of the
following instances: G.R. No. L-26376 August 31, 1966

(a) . . . ; THE PEOPLE OF THE PHILIPPINES, plaintiff and appellant,


vs.
(b) . . . ; AURELIO BALISACAN, defendant and appellee.

(c) the plea of guilty to the lesser offense was made without the consent Office of the Solicitor General Arturo A. Alafriz, Assistant Solicitor General I. C. Borromeo and
of the Fiscal and of the offended party; T. M. Dilig for plaintiff and appellant.
Rolando de la Cuesta for defendant and appellee.
xxx xxx xxx
BENGZON, J.P., J.:
Under this rule, the private respondent could still be prosecuted under the original charge of
violation of Section 16 of RA 6425 as amended because of the lack of consent of the Fiscal This is an appeal by the prosecution from a decision of acquittal.
who also represents the offended party, i.e., the state. More importantly, the trial court's
approval of his change of plea was irregular and improper. On February 1, 1965, Aurelio Balisacan was charged with homicide in the Court of First
Instance of Ilocos Norte. The information alleged:
ACCORDINGLY, the petition is hereby GRANTED. The judgment and order of the Regional
Trial Court, National Capital Region at Pasig, Branch 156 dated February 25 and March 13, That on or about December 3, 1964, in the Municipality of Nueva Era, province of
1991, respectively in Criminal Case No. 1345-D (People v. Manuel y Ohide) are REVERSED and Ilocos Norte, Philippines, and within the jurisdiction of this Honorable Court, the
SET ASIDE. The said criminal case is hereby remanded to the trial court for continuation of herein accused, with intent to kill, did then and there willfully, unlawfully and
trial on the original charge of violation of Section 16 of Republic Act No. 6425 as amended. feloniously attack, assault and stab one, Leonicio Bulaoat, inflicting upon the latter
The temporary restraining order issued in this case is made permanent. No costs. wounds that immediately caused his death.

SO ORDERED. 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 de oficio counsel's petition, however, he was allowed to
present evidence to prove mitigating circumstances. Thereupon the accused testified to the
effect that he stabbed the deceased in self-defense because the latter was strangling him.
112
And he further stated that after the incident he surrendered himself voluntarily to the police The argument by either attorney may be oral or written, or partly written, but only
authorities. the written arguments, or such portions of the same as may be in writing, shall be
preserved in the record of the case.
Subsequently, on March 6, 1965, on the basis of the above-mentioned testimony of the
accused, the court a quorendered a decision acquitting the accused. As stated, the In deciding the case upon the merits without the requisite trial, the court a quo not only
prosecution appealed therefrom. erred in procedure but deprived the prosecution of its day in court and right to be heard.

This appeal was first taken to the Court of Appeals. Appellant filed its brief on September 9, This Court now turns to Section 2, Rule 122 of the Rules of Court, which provides that: "The
1965. No appellee's brief was filed. After being submitted for decision without appellee's People of the Philippines can not appeal if the defendant would be placed thereby in double
brief, the appeal was certified to Us by the Court of Appeals on July 14, 1966, as involving jeopardy." The present state of jurisprudence in this regard is that the above provision
questions purely of law (Sec. 17, Republic Act 296). And on August 5, 1966, We ordered it applies even if the accused fails to file a brief and raise the question of double jeopardy
docketed herein.1äwphï1.ñët (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).
The sole assignment of error is:
The next issue, therefore, is whether this appeal placed the accused in double jeopardy. It is
THE TRIAL COURT ERRED IN ACQUITTING THE ACCUSED OF THE OFFENSE CHARGED settled that the existence of a plea is an essential requisite to double jeopardy (People v.
DESPITE THE LATTER'S PLEA OF GUILTY WHEN ARRAIGNED. 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
Appellant's contention is meritorious. A plea of guilty is an unconditional admission of guilt the course of being allowed to prove mitigating circumstances, that he acted in complete
with respect to the offense charged. It forecloses the right to defend oneself from said self-defense. Said testimony, therefore — as the court a quo recognized in its decision — had
charge and leaves the court with no alternative but to impose the penalty fixed by law under the effect of vacating his plea of guilty and the court a quo should have required him to plead
the circumstances. (People v. Ng Pek, 81 Phil. 563). In this case, the defendant was only a new on the charge, or at least direct that a new plea of not guilty be entered for him. This
allowed to testify in order to establish mitigating circumstances, for the purposes of fixing was not done. It follows that in effect there having been no standing plea at the time the
the penalty. Said testimony, therefore, could not be taken as a trial on the merits, to court a quo rendered its judgment of acquittal, there can be no double jeopardy with respect
determine the guilt or innocence of the accused. to the appeal herein.1

In view of the assertion of self-defense in the testimony of the accused, the proper course Furthermore, as afore-stated, the court a quo decided the case upon the merits without
should have been for the court a quo to take defendant's plea anew and then proceed with giving the prosecution any opportunity to present its evidence or even to rebut the
the trial of the case, in the order set forth in Section 3 of Rule 119 of the Rules of Court: 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,
SEC. 3. Order of trial. — The plea of not guilty having been entered, the trial must proceed in therefore, being a nullity for want of due process, is no acquittal at all, and thus can not
the following order: 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).
(a) The fiscal, on behalf of the People of the Philippines, must offer evidence in
support of the charges. 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
(b) The defendant or his attorney may offer evidence in support of the defense. way doubting the integrity of said trial judge, We deem it proper to 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.
(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. 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
(d) When the introduction of evidence shall have been concluded, unless the case
judgment thereafter, No costs. So ordered.
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.

113
SECOND DIVISION xxxx

PEOPLE OF THE PHILIPPINES, G.R. No. 164185 That on or about 01 July 1998 or sometime prior or
Petitioner, subsequent thereto, in San Vicente, Palawan, Philippines, and
Present: within the jurisdiction of this Honorable Court, the above-
named accused, ALEJANDRO A. VILLAPANDO, a public officer,
QUISUMBING, J., Chairperson, being then the Municipal Mayor of San Vicente, Palawan,
- versus - YNARES-SANTIAGO,* committing the crime herein charged, in relation to and taking
CARPIO MORALES, advantage of his official functions, conspiring and confederating
TINGA, and with accused Orlando M. Tiape, did then and there wilfully,
VELASCO, JR., JJ. unlawfully and feloniously appoint ORLANDO M. TIAPE as a
THE SANDIGANBAYAN (FOURTH DIVISION) and ALEJANDRO Municipal Administrator of San Vicente, Palawan, accused
A. VILLAPANDO, Promulgated: Alejandro A. Villapando knowing fully well that Orlando Tiape
Respondents. lacks the qualification as he is a losing mayoralty candidate in
July 23, 2008 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.
DECISION
CONTRARY TO LAW.[8]
QUISUMBING, J.:
The Information was docketed as Criminal Case No. 27465 and raffled to the Fourth
This petition for certiorari filed by the Office of the Ombudsman through the Office Division of the Sandiganbayan.
of the Special Prosecutor assails the May 20, 2004 Decision [1] of the Sandiganbayan, Fourth
Division, in Criminal Case No. 27465, granting private respondent Alejandro A. Villapandos Upon arraignment on September 3, 2002, Villapando pleaded not
Demurrer to Evidence[2] and acquitting him of the crime of unlawful appointment under guilty. Meanwhile, the case against Tiape was dismissed after the prosecution proved his
Article 244[3] of the Revised Penal Code. death which occurred on July 26, 2000.[9]

The facts culled from the records are as follows: 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
During the May 11, 1998 elections, Villapando ran for Municipal Mayor of San within which to inform the court in writing whether he will nonetheless submit his Demurrer
Vicente, Palawan. Orlando M. Tiape (now deceased), a relative of Villapandos wife, ran for to Evidence for resolution without leave of court.[10] Villapando then filed a Manifestation of
Municipal Mayor of Kitcharao, Agusan del Norte. Villapando won while Tiape lost. Thereafter, Intent to File Demurrer to Evidence,[11] and was given 15 days from receipt to file his
on July 1, 1998, Villapando designated Tiape as Municipal Administrator of Demurrer to Evidence. He filed his Demurrer to Evidence[12] on October 28, 2003.
the Municipality of San Vicente, Palawan.[4] A Contract of Consultancy[5] dated February 8,
1999 was executed between the Municipality of San Vicente, Palawan and Tiape whereby the In a Decision dated May 20, 2004, the Sandiganbayan, Fourth Division found
former employed the services of Tiape as Municipal Administrative and Development Villapandos Demurrer to Evidence meritorious, as follows:
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 P26,953.80. The Court found the Demurrer to Evidence impressed with
merit.
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 Article 244 of the Revised Penal Code provides:
of the Deputy Ombudsman for Luzon.[6] The complaint was resolved against Villapando and
Tiape and the following Information[7] dated March 19, 2002 charging the two with violation
of Article 244 of the Revised Penal Code was filed with the Sandiganbayan:
114
Article 244. Unlawful appointments.Any public officer government is provided for by law, which may refer to educational
who shall knowingly nominate or appoint to any public office attainment, civil service eligibility or experience:
any person lacking the legal qualifications therefor, shall suffer
the penalty of arresto mayor and a fine not exceeding 1,000 As the title suggests, the offender in this
pesos. (underscoring supplied) article is a public officer who nominates or appoints a
person to a public office. The person nominated or
A dissection of the above-cited provision [yields] the following appointed is not qualified and his lack of qualification
elements, to wit: is known to the party making the nomination or
appointment. The qualification of a public officer to
1. the offender was a public officer; hold a particular position in the government is
provided by law. The purpose of the law is to ensure
2. accused nominated or appointed a person to a public that the person appointed is competent to perform
office; the duties of the office, thereby promoting efficiency
in rendering public service.
3. such person did not have the legal qualifications
[therefor;] and, The qualification to hold public office may
refer to educational attainment, civil service eligibility
4. the offender knew that his nominee or appointee did not or experience. For instance, for one to be appointed
have the legal qualifications at the time he made the as judge, he must be a lawyer. So if the Judicial and
nomination or appointment. Bar Council nominates a person for appointment as
judge knowing him to be not a member of the
Afore-cited elements are hereunder discussed. Philippine Bar, such act constitutes a violation of the
law under consideration.
1. Mayor Villapando was the duly elected Municipal Mayor of
San Vicente, Palawan when the alleged crime was committed. 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
2. Accused appointed Orlando Tiape as Municipal Administrator
is Section 480, Article X of the Local Government Code, to wit:
of the Municipality of San Vicente, Palawan.
Section 480. Qualifications, Terms, Powers
3. There appears to be a dispute. This Court is now called upon
and Duties.(a) No person shall be appointed
to determine whether Orlando Tiape, at the time of [his] designation as
administrator unless he is a citizen of the Philippines,
Municipal Administrator, was lacking in legal qualification. Stated
a resident of the local government unit concerned, of
differently, does legal qualification contemplate the one (1) year
good moral character, a holder of a college degree
prohibition on appointment as provided for in Sec. 6, Art. IX-B of the
preferably in public administration, law, or any other
Constitution and Sec. 94 (b) of the Local Government Code, mandating
related course from a recognized college or
that a candidate who lost in any election shall not, within one year after
university, and a first grade civil service eligible or its
such election, be appointed to any office in the Government?
equivalent. He must have acquired experience in
management and administration work for at least five
The Court answers in the negative.
(5) years in the case of the provincial or city
administrator, and three (3) years in the case of the
In ascertaining the legal qualifications of a particular appointee municipal administrator.
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,
xxx xxx xxx.
Justice Rodolfo Palattao succinctly discussed in his book that the
qualification of a public officer to hold a particular position in the

115
It is noteworthy to mention that the prosecution did not allege WHETHER THE RESPONDENT COURT ACTED WITH GRAVE ABUSE OF
much less prove that Mayor Villapandos appointee, Orlando Tiape, lacked DISCRETION AMOUNTING TO LACK OF OR EXCESS OF JURISDICTION IN
any of the qualifications imposed by law on the position of Municipal GIVING DUE COURSE TO, AND EVENTUALLY GRANTING, THE DEMURRER
Administrator. Prosecutions argument rested on the assertion that since TO EVIDENCE.[15]
Tiape lost in the May 11, 1998 election, he necessarily lacked the
required legal qualifications. Simply, the issue is whether or not the Sandiganbayan, Fourth Division, acted with
grave abuse of discretion amounting to lack or excess of jurisdiction.
It bears stressing that temporary prohibition is not synonymous
with absence or lack of legal qualification. A person who possessed the Petitioner argues that the Sandiganbayan, Fourth Division acted with grave abuse
required legal qualifications for a position may be temporarily of discretion amounting to lack or excess of jurisdiction because its interpretation of Article
disqualified for appointment to a public position by reason of the one 244 of the Revised Penal Code does not complement the provision on the one-year
year prohibition imposed on losing candidates. Upon the other hand, one prohibition found in the 1987 Constitution and the Local Government Code, particularly
may not be temporarily disqualified for appointment, but could not be Section 6, Article IX of the 1987 Constitution which states no candidate who has lost in any
appointed as he lacked any or all of the required legal qualifications election shall, within one year after such election, be appointed to any office in the
imposed by law. 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
4. Anent the last element, this Court deems it unnecessary to except for losing candidates in barangay elections, no candidate who lost in any election
discuss the same. 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
WHEREFORE, finding the Demurrer to Evidence filed by Mayor argues that the court erred when it ruled that temporary prohibition is not synonymous with
Villapando with merit, the same is hereby GRANTED. Mayor Villapando is the absence of lack of legal qualification.
hereby ACQUITTED of the crime charged.
The Sandiganbayan, Fourth Division held that the qualifications for a position are provided by
SO ORDERED.[13] 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
Thus, this petition by the Office of the Ombudsman, through the Office of the Special the one-year prohibition imposed on losing candidates. However, there is no violation of
Prosecutor, representing the People of the Philippines. 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
Villapando was required by this Court to file his comment to the petition. Despite in the law.
several notices, however, he failed to do so and in a Resolution[14] dated June 7, 2006, this
Court informed him that he is deemed to have waived the filing of his comment and the case There is no basis in law or jurisprudence for this interpretation. On the contrary, legal
shall be resolved on the basis of the pleadings submitted by the petitioner. 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
Petitioner raises the following issues: 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
I. corporations or in any of their subsidiaries.

WHETHER THE RESPONDENT COURT ACTED WITH GRAVE ABUSE OF Article 244 of the Revised Penal Code states:
DISCRETION AMOUNTING TO LACK OF OR EXCESS OF JURISDICTION IN
INTERPRETING THAT THE LEGAL DISQUALIFICATION IN ARTICLE 244 OF Art. 244. Unlawful appointments. Any public officer who shall
THE REVISED PENAL CODE DOES NOT INCLUDE THE ONE YEAR knowingly nominate or appoint to any public office any person lacking
PROHIBITION IMPOSED ON LOSING CANDIDATES AS ENUNCIATED IN THE the legal qualifications therefore, shall suffer the penalty
CONSTITUTION AND THE LOCAL GOVERNMENT CODE. of arresto mayor and a fine not exceeding 1,000 pesos.

II. Section 94 of the Local Government Code provides:

116
SECTION 94. Appointment of Elective and Appointive Local exempt therefrom the legal prohibitions under the 1987 Constitution and the Local
Officials; Candidates Who Lost in Election. - (a) No elective or appointive Government Code of 1991. We reiterate the legal
local official shall be eligible for appointment or designation in any maxim ubi lex non distinguit nec nosdistinguere debemus. Basic is the rule in statutory
capacity to any public office or position during his tenure. 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.
Unless otherwise allowed by law or by the primary functions of
his position, no elective or appointive local official shall hold any other Further, the Sandiganbayan, Fourth Division denied Villapandos Motion for Leave to File
office or employment in the government or any subdivision, agency or Demurrer to Evidence yet accommodated Villapando by giving him five days within which to
instrumentality thereof, including government-owned or controlled inform it in writing whether he will submit his demurrer to evidence for resolution without leave
corporations or their subsidiaries. of court.

(b) Except for losing candidates in barangay elections, no Notably, a judgment rendered with grave abuse of discretion or without due
candidate who lost in any election shall, within one (1) year after such process is void, does not exist in legal contemplation and, thus, cannot be the source of an
election, be appointed to any office in the government or any acquittal.[18]
government-owned or controlled corporations or in any of their
subsidiaries. The Sandiganbayan, Fourth Division having acted with grave abuse of discretion in
disregarding the basic rules of statutory construction resulting in its decision
Section 6, Article IX-B of the 1987 Constitution states: granting Villapandos Demurrer to Evidence and acquitting the latter, we can do no less but
declare its decision null and void.
Section 6. No candidate who has lost in any election shall,
within one year after such election, be appointed to any office in the WHEREFORE, the petition is GRANTED. The Decision dated May 20, 2004 of
Government or any Government-owned or controlled corporations or in the Sandiganbayan, Fourth Division, in Criminal Case No. 27465, granting private respondent
any of their subsidiaries. Alejandro A. Villapandos 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
Villapandos contention and the Sandiganbayan, Fourth Divisions interpretation of VOID. Let the records of this case be remanded to the Sandiganbayan, Fourth Division, for
the term legal disqualification lack cogency. Article 244 of the Revised Penal Code cannot be further proceedings.
circumscribed lexically. Legal disqualification cannot be read as excluding temporary
disqualification in order to exempt therefrom the legal prohibitions under Section 6, Article SO ORDERED.
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. Sandiganbayan[16] 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.
Republic of the Philippines
Grave abuse of discretion defies exact definition, but it generally refers to capricious SUPREME COURT
or whimsical exercise of judgment as is equivalent to lack of jurisdiction. The abuse of discretion Manila
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 EN BANC
exercised in an arbitrary and despotic manner by reason of passion and hostility.[17]
G.R. No. L-3580 March 22, 1950
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 CONRADO CARMELO, petitioner-appellant,
legal disqualification in Article 244 of the Revised Penal Code defies legal cogency. Legal vs.
disqualification cannot be read as excluding temporary disqualification in order to
117
THE PEOPLE OF THE PHILIPPINES and THE COURT OF FIRST INSTANCE OF RIZAL, respondent- Law and in the Constitution of the United States and is now embodied in our own
appellees. Constitution as one of the fundamental rights of the citizen.

Jose A. Fojas for petitioner. It must be noticed that the protection of the Constitution inhibition is against a second
First Assistant Solicitor General Roberto A. Gianzon and Solicitor Martiniano P. Vivo for jeopardy for the same offense, the only exception being, as stated in the same Constitution,
respondents. 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,
MORAN, C.J.: under the general rule, has always been construed to mean not only the second offense
charged is exactly the same as the one alleged in the first information, but also that the two
Petitioner Conrado Melo was charged in the Court of First Instance of Rizal, on December 27, offenses are identical. There is identity between the two offenses when the evidence to
1949, with frustrated homicide, for having allegedly inflicted upon Benjamin Obillo, with a support a conviction for one offense would be sufficient to warrant a conviction for the
kitchen knife and with intent to kill, several serious wounds on different parts of the body, other. This so called "same-evidence test" which was found to be vague and deficient, was
requiring medical attendance for a period of more than 30 days, and incapacitating him from restated by the Rules of Court in a clearer and more accurate form. Under said Rules there is
performing his habitual labor for the same period of time. On December 29, 1949, at eight identity between two offenses not only when the second offense is exactly the same as the
o'clock in the morning, the accused pleaded not guilty to the offense charged, and at 10:15 in first, but also when the second offense is an attempt to commit the first or a frustration
the evening of the same day Benjamin Obillo died from his wounds. Evidence of death was thereof, or when it necessary includes or is necessarily included in the offense charged in the
available to the prosecution only on January 3, 1950, and on the following day, January 4, first information. (Rule 113, sec. 9; U.S. vs. Lim Suco, 11 Phil., 484; U. S. vs. Ledesma, 29 Phil.,
1950, an amended information was filed charging the accused with consummated homicide. vs. Martinez, 55 Phil., 6.) In this connection, an offense may be said to necessarily include
The accused filed a motion to quash the amended information alleging double jeopardy, another when some of the essential ingredients of the former as alleged in the information
motion that was denied by the respondent court; hence, the instant petition for prohibition constitute the latter. And vice-versa, an offense may be said to be necessarily included in
to enjoin the respondent court from further entertaining the amended information. another when all the ingredients of the former constitute a part of the elements constituting
the latter (Rule 116, sec. 5.) In other words, on who has been charged with an offense cannot
Brushing aside technicalities of procedure and going into the substance of the issues raised, it be again charged with the same or identical offense though the latter be lesser or greater
may readily be stated that amended information was rightly allowed to stand. Rule 106, than the former. "As the Government cannot be with the highest, and then go down step to
section 13, 2d paragraph, is as follows: 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.
If it appears at may time before the judgment that a mistake has been made in Cox, 107 Mich., 435, quoted with approval in U. S. vs. Lim Suco, 11 Phil., 484; see also U. S.
charging the proper offense, the court may dismiss the original complaint or vs. Ledesma, 29 Phil., 431 and People vs. Martinez, 55 Phil., 6, 10.)
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 This rule of identity does not apply, however when the second offense was not in existence
also require the witnesses to give bail for their appearance at the trial. 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
Under this provision, it was proper for the court to dismiss the first information and order was then inexistent. Thus, where the accused was charged with physical injuries and after
the filing of a new one for the treason that the proper offense was not charged in the former conviction the injured person dies, the charge for homicide against the same accused does
and the latter did not place the accused in a second jeopardy for the same or identical not put him twice in jeopardy. This is the ruling laid down by the Supreme Court of the
offense. United States in the Philippines case of Diaz vs. U. S., 223 U. S. 442, followed by this Court
in People vs. Espino, G. R. No. 46123, 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
"No person shall be twice put in jeopardy of punishment for the same offense," according to
new fact supervenes for which the defendant is responsible, which changes the character of
article III, section 1 (20) of our constitution. The rule of double jeopardy had a settled
the offense and, together with the fact existing at the time, constitutes a new and distinct
meaning in this jurisdiction at the time our Constitution was promulgated. It meant that
offense" (15 Am. Jur., 66), the accused cannot be said to be in second jeopardy if indicated
when a person is charged with an offense and the case is terminated either by acquittal or
for the new offense.
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, This is the meaning of "double jeopardy" as intended by our constitution for was the one
in the common law of England, and undoubtedly in every system of jurisprudence, and prevailing in jurisdiction at the time the Constitution was promulgated, and no other
instead of having specific origin it simply always existed. It found expression in the Spanish meaning could have been intended by our Rules of Court.

118
Accordingly, an offense may be said to necessarily include or to be necessarily included in EN BANC
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, G.R. No. L-13315 April 27, 1960
if the second offense was then inexistence, no jeopardy could attach therefor during the first
prosecution, and consequently a subsequent charge for the same cannot constitute second THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
jeopardy. By the very nature of things there can be no double jeopardy under such vs.
circumstance, and our Rules of Court cannot be construed to recognize the existence of a BUENAVENTURA BULING, defendant-appellant.
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 Assistant Solicitor General Esmeraldo Umali and Solicitor Emerito M. Salva for appellee.
an absurd consequence. It will always, therefore, be presumed that exceptions have been Francisco A. Puray for appellant.
intended to their language which would avoid results of this character. (In re Allen, 2 Phil.,
641.) LABRADOR, J.:

When the Rules of Court were drafted, there was absolutely no intention of abandoning the Appeal from a judgment of the Court of First Instance of Leyte, Hon. Gaudencio Cloribel,
ruling laid down in the Diaz case, and the proof of this is that although the said Rules were presiding, finding the accused Buenaventura Buling guilty of serious physical injuries and
approved on December 1939, yet on January 30, 1940, this Court decided the Espino case sentencing him to imprisonment of four months of arresto mayor, as minimum, to one year
reiterating therein the Diaz doctrine. Had that doctrine been abandoned deliberately by the of prision correccional, as maximum, and to indemnify the offended party.
Rules of Court as being unwise, unjust or obnoxious, logically it would have likewise been
repudiated in the Espino case by reason if consistency and as a matter of justice to the
The following uncontroverted facts appear in the record: On December 7, 1956, the accused
accused, who should in consequence have been acquitted instead of being sentenced to a
was charged in the Justice of the Peace Court of Cabalian, Leyte, with the crime of less
heavy penalty upon the basis of a doctrine that had already been found to be wrong. There
serious physical injuries for having inflicted wounds on complaining witness Isidro Balaba,
was absolutely no reason to preclude this Court from repealing the doctrine in the Espino
which according to the complaint would "require, medical attendance for a period from 10 to
case, for as a mere doctrine it could be repealed at any time in the decision of any case
15 days and will incapacitate the said Isidro Balaba from the performance of his customary
where it is invoked, is a clear proof that the mind of the Court, even after the approval of the
labors for the game period of time." The accused pleaded guilty to the complaint and was on
Rules, was not against but in favor of said doctrine.
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
For these reasons we expressly repeal the ruling laid down in People vs. Tarok, 73 Phil., 260, subsidiary imprisonment in case of insolvency. On the same day he began to serve his
as followed in People vs. Villasis, 46 Off. Gaz. (Supp. to No. 1), p. 268. Such ruling is not only sentence and has fully served the same.
contrary to the real meaning of "double jeopardy" as intended by the Constitution and by the
Rules of Court but is also obnoxious to the administration of justice. If, in obedience to the
However, Balaba's injuries did not heal within the period estimated, and so on February 20,
mandate of the law, the prosecuting officer files an information within six hours after the
1957, the Provincial Fiscal filed an information against the accused before the Court of First
accused is arrested, and the accused claiming his constitutional right to a speedy trial is
Instance of Leyte, charging him of serious physical injuries. The information alleges that the
immediately arraigned, and later on new fact supervenes which, together with the facts
wounds inflicted by the accused on Isidro Balaba require medical attendance and
existing at the time, constitutes a more serious offense, under the Tarok ruling, no way is
incapacitated him for a period of from 1 ½ months to 2 ½ months. After trial the accused was
open by which the accused may be penalized in proportion to the enormity of his guilt.
found guilty of serious physical injuries and sentenced in the manner indicated in first
Furthermore, such a ruling may open the way to suspicions or charges of conclusion between
paragraph hereof. This is the decision now sough to be set aside and reversed in this appeal.
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.
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
Before closing, it is well to observe that when a person who has already suffered his penalty
injuries.
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.
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
For all the foregoing, the petition is denied, and the respondent court may proceed to the
the cases of Melo vs. People, 85 Phil., 766, People vs. Manolong, 85 Phil., 829 and
trial of the criminal case under the amended information. Without costs.
People vs. Petilla, 92 Phil., 395. But in Melo vs. People, supra, we expressly repealed our

119
ruling in the case of People vs. Tarok, supra, and followed in the case of But the Solicitor General cites the case of People vs. Manolong, supra, and argues that our
People vs. Villasis, supra. In the Melo vs. People case, we stated the ruling to be that: 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
. . . Stating it in another form, the rule is that "where after the first prosecution a one was serious physical injuries and yet we held that there was no jeopardy. We have
new fact supervenes for which the defendant is responsible, which changes the carefully examined this case and have found that the first examination made of the offended
character of the offense and, together with the facts existing at the time, party showed injuries which would take from 20 to 30 days to heal, whereas the subsequent
constitutes a new and distinct offense" (15 Am. Jur., 66), the accused cannot be examination disclosed that the wound of the offended party would require medical
said to be in second jeopardy if indicted for the new offense. (85 Phil., 769-770). 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
Do the facts in the case at bar justify the application of the new ruling? In other words, has a injuries had caused deformity and the loss of the use of the right hand. As nothing was
new fact supervened, like death in the case of Melo vs. People, which changes the character mentioned in the first medical certificate about the deformity and the loss of the use of the
of the offense into one which was not in existence at the time the case for less serious right hand, we presume that such fact was not apparent or could not have been discernible
physical injuries was filed? We do not believe that a new fact supervened, or that a new fact at the time the first examination was made. The course (not the length), of the healing of an
has come into existence. What happened is that the first physician that examined the injury may not be determined before hand; it can only be definitely known after the period
wounds of the offended party certified on December 10, 1956 that the injury was as follows: of healing has ended. That is the reason why the court considered that there was a
"wound, incised, wrist lateral, right, 3/4 inch long, sutured" and that the same would take supervening fact occurring since the filing of the original information.
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, But such circumstances do not exist in the case at bar. If the X-ray examination discloses the
defendant-appellant was found guilty of less serious physical injuries and sentenced to existence of a fracture on January 17, 1957, that fracture must have existed when the first
imprisonment of 1 month and 1 day of arresto mayor, etc. 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,
But on January 18, 1957, another physician examined the offended party, taking an X-ray which would justify the application of the ruling enunciated by us in the cases of Melo vs.
picture of the arm of the offended party which had been wounded. The examination People and People vs. Manolong, supra. We attribute the new finding of fracture, which
discloses, according to the physician, the following injuries: 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
Old stab wound 4 inches long. With infection, distal end arm, right. X-ray plate the time, the fracture would have certainly been disclosed. The wound causing the delay in
finding after one month and 12 days — Fracture old oblique, incomplete distal end, healing was already in existence at the time of the first examination, but said delay was
radius right, with slight calus. (Exh. "E"). 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
and the certification is to the effect that treatment will take from 1 ½ months to 2 ½ months of Melo vs. People and People vs. Manolong, for which reason we are constrained to apply
barring complications. the general rule of double jeopardy.

Counsel for the appellant claims that no fact had supervened in the case at bar, as a result of We take this opportunity to invite the attention of the prosecuting officers that before filing
which another offense had been ommitted. It is argued that the injury and the condition informations for physical injuries, thorough physical and medical examinations of the injuries
thereof was the same when the first examination was made on December 10, 1956, as when should first be made to avoid instances, like the present, where by reason of the important
the examination was made on January 18, 1957, and that if any new fact had been disclosed Constitutional provision of double jeopardy, the accused can not be held to answer for the
in the latter examination failure of this new fact to be disclosed in the previous examination graver offense committed.
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 The decision appealed from is hereby reversed. The judgment of conviction is set aside and
was made during the first examination, which was merely superficial. The physician who the defendant-appellant acquitted of the charge of serious physical injuries. Without costs.
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. SECOND DIVISION

Under the circumstances above indicated, we are inclined to agree with the contention made [G.R. No. 130106. July 15, 2005]
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.
120
PEOPLE OF THE PHILIPPINES, petitioner, vs. HON. PERLITA J. TRIA-TIRONA, in her capacity the appealability of the trial courts decision of acquittal in the context of the constitutional
as Presiding Judge, Branch 102, Regional Trial Court, Quezon City and CHIEF guarantee against double jeopardy should be resolved since it has two pending
INSPECTOR RENATO A. MUYOT, respondents. petitions[7] before the court raising the same question.

DECISION Petitioner informs the Court that in its prior petition in People v. Velasco,[8] it has
presented and extensively discussed the now settled constitutional doctrine in the United
CHICO-NAZARIO, J.: States that the Double Jeopardy Clause does permit a review of acquittals decreed by trial
magistrates where, as in this case, no retrial will be required even if the judgment should be
Can the government appeal from a judgment acquitting the accused after trial on the overturned. It thus argues that appealing the acquittal of private respondent would not be
merits without violating the constitutional precept against double jeopardy? violative of the constitutional right of the accused against double jeopardy.

Before us is a petition for review on certiorari seeking the annulment of the In a resolution dated 12 November 1997, the Court required private respondent to
decision[1] of respondent Judge Perlita J. Tria-Tirona dated 11 August 1997 acquitting comment on the petition within ten days from notice.[9] On 8 January 1998, the latter filed
accused-private respondent Chief Inspector Renato A. Muyot and in lieu thereof a judgment his Comment.[10]
be issued convicting the latter of the crime charged.
On 26 January 1998, the Court required petitioner to file its reply.[11] It did on 13
Armed with two search warrants,[2] members of the National Bureau of Investigation November 1998.[12]
(NBI) Anti-Organized Crime Division, together with members of the NBI Special Investigation
Division and the Presidential Intelligence and Counter-Intelligence Task Force Hammer Head On 13 September 2000, the Court promulgated its decision in People v. Velasco.[13] In
serving as security, conducted a search on the house of accused-private respondent located said case, the government, by way of a petition for certiorari under Rule 65 of the Rules of
on Banawe, Quezon City. The alleged finding of 498.1094 grams of methamphetamine Court, appealed the decision of Hon. Tirso D.C. Velasco acquitting accused Honorato Galvez
hydrochloride (shabu) thereat led to the filing of an information charging private respondent of the charges of murder and double frustrated murder due to insufficiency of evidence, and
with Violation of Section 16, Article III of Republic Act No. 6425, [3] as amended by Rep. Act of the charge of unauthorized carrying of firearm on the ground that the act charged was not
No. 7659. The information[4] reads: a violation of law. This Court dismissed the petition. We ruled:

That on or about October 15, 1996 in Quezon City and within the jurisdiction of this . . . Therefore, as mandated by our Constitution, statutes and cognate jurisprudence, an
Honorable Court, abovenamed accused did then and there knowingly have in his possession, acquittal is final and unappealable on the ground of double jeopardy, whether it happens at
custody and control Four Hundred Ninety-Eight point One Thousand Ninety-Four (498.1094) the trial court level or before the Court of Appeals.
grams of methamphetamine hydroc(h)loride (shabu) a regulated drug without any license,
permit, prescription or authority coming from any government office, bureau, agency, or In general, the rule is that a remand to a trial court of a judgment of acquittal brought before
department authorized to issue such license, permit, prescription or authority in blatant the Supreme Court on certiorari cannot be had unless there is a finding of mistrial, as
violation of the Dangerous Drugs Act of 1972 as amended by RA 7659. in Galman v. Sandiganbayan. . . .

The case was raffled to the sala of public respondent -- Branch 102 of the Regional Trial ...
Court of Quezon City.
Thus, the doctrine that double jeopardy may not be invoked after trial may apply only when
When arraigned on 27 November 1996, private respondent, assisted by a counsel de the Court finds that the criminal trial was a sham because the prosecution representing the
parte, pleaded not guilty to the crime charged.[5] After trial on the merits, public respondent sovereign people in the criminal case was denied due process.
rendered a decision[6] acquitting private respondent on ground of reasonable doubt.
...
The decision, more particularly the acquittal of private respondent, is being
assailed via a petition for certiorari under Rule 65 of the Rules of Court. Petitioner contends . . . Thus, emerging American consensus on jury acquittals notwithstanding, on solid
that public respondent, in acquitting private respondent, committed grave abuse of constitutional bedrock is well engraved our own doctrine that acquittals by judges on
discretion by ignoring material facts and evidence on record which, when considered, would evidentiary considerations cannot be appealed by government. The jurisprudential metes
lead to the inevitable conclusion of the latters guilt beyond reasonable doubt. It added that and bounds of double jeopardy having been clearly defined by both constitution and statute,

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the issue of the effect of an appeal of a verdict of acquittal upon a determination of the On the second issue, petitioner maintains that respondent court abused its discretion
evidence on the constitutionally guaranteed right