G.R. No.
L-11676 October 17, 1916 there, and the table caused them to suspect that a jueteng game was being
THE UNITED STATES, plaintiff-appellee,
vs.
ANDRES PABLO, defendant-appellant.
Alfonso E. Mendoza for appellant.
Attorney-General Avanceña for appellee.
TORRES, J.:
At about noon of the 21st of October, 1915, Andres Pablo, a policeman of
the municipality of Balanga, went by order of his chief to the barrio of
Tuyo to raid a jueteng game which, according to the information lodged,
was being conducted in that place; but before the said officer arrived there
the players, perhaps advised of his approach by a spy, left and ran away;
however, on his arrival at a vacant lot the defendant there found Francisco
Dato and, at a short distance away, a low table. After a search of the
premises he also found thereon a tambiolo (receptacle) and 37 bolas
(balls). Notwithstanding that the officer had seen the men Maximo Malicsi
and Antonio Rodrigo leave the said lot, yet, as at first he had seen no
material proof that the game was being played, he refrained from arresting
them, and on leaving the place only arrested Francisco Daro, who had
remained there.
In reporting to his chief what had occurred, the policeman presented a
memorandum containing the following statement: "In the barrio of Tuyo
I raided a jueteng na bilat game, seized a tambiolo and bolas, and saw the
cabecillas Maximo MAlicsi and Antonio Rodrigo and the gambler
Francisco Dato. I saw the two cabecillas escape."
In consequence, chief of police Jose D. Reyes, on October 22, 1915, filed
a complaint in the court of justice of the peace charging the said Rodrigo,
Malicsi, and Dato with having gambled at jueteng, in violation of
municipal ordinance No. 5. As a result of this complaint the accused were
arrested, but were afterwards admitted to bail.
At the hearing of the case Francisco Dato pleaded guilty. The other two
accused, Maximo Malicsi and Antonio Rodrigo, pleaded not guilty;
therefore, during the trial the chief of police presented the memorandum
exhibited by the policeman Andres Pablo, who testified under oath that on
the date mentioned he and Tomas de Leon went to the said barrio to raid
a jueteng game, but that before they arrived there they saw from afar that
some persons started to run toward the hills; that when witness and his
companion arrived at a vacant lot they saw Francisco Dato and a low table
carried on; that in fact they did find on one side of the lot a tambiolo and
37 bolas, but that they did not see the accused Rodrigo and Malicsi on the
said lot, nor did they see them run; and that only afterwards did the witness
learn that these latter were the cabecillas or ringleaders in the jueteng
game, from information given him by an unknown person. In view of this
testimony by the police officer who made the arrest and of the other
evidence adduced at the trial the court acquitted the defendants Antonio
Rodrigo and Maximo Malicsi and sentenced only Francisco Dato, as a
gambler.
Before the case came to trial in the justice of the peace court the policeman
Andres Pablo had an interview and conference with the accused Malicsi
and ROdrigo in the house of Valentin Sioson. On this occasion he was
instructed not to testify against Malicsi and Rodrigo, and in fact received
through Gregorio Ganzon the sum of P5.
By reason of the foregoing and after making a preliminary investigation
the provincial fiscal, on December 1, 1915, filed an information in the
Court of First Instance of Bataan charging Andres Pablo with the crime of
perjury, under the provisions of section 3 of Act No. 1697. The following
is an extract from the complaint:
That on or about November 6, 1915, in the municipality of Balanga,
Bataan, P.I., and within the jurisdiction of this court, the said accused,
Andres Pablo, during the hearing in the justice of the peace court of
Balanga of the criminal cause No. 787, entitled the United States vs.
Antonio Rodrigo and Maximo Malicsi, for violation of Municipal
Ordinance No. 5 of the municipality of Balanga, did, willfully, unlawfully
and feloniously affirm and swear in legal form before the justice of the
peace court as follow: `We did not there overtake the accused Antonio
Rodrigo and Maximo Malicsi, nor did we even see them run,' the said
statement being utterly false, as the accused well knew that it was, and
material to the decision of the said criminal cause No. 787, United States
vs. Antonio Rodrigo and Maximo Malicsi. An act committed with
violation of law.
The case came to trial and on December 28, 1915, the court rendered
judgment therein sentencing the defendant to the penalty of two years'
imprisonment, to pay a fine of P100 and, in case of insolvency, to the
corresponding subsidiary imprisonment, and to pay the costs. The
defendant was also disqualified from thereafter holding any public office
and from testifying in the courts of the Philippine Islands until the said
disqualification should be removed. From this judgment he appealed.
Francisco Dato, on testifying as a witness, said that when the policemen
Andres Pablo and Tomas de Leon arrived at the place where the jueteng
was being played, they found the defendant gamblers, Malicsi and
Rodrigo; that, prior to the hearing of the case in the justice of the peace
court, Malicsi and Rodrigo ordered him to call Andres Pablo, who,
together with witness, went to the house of Valentin Sioson, where they
held a conference; that witness pleaded guilty in the justice of the peace
court, in fulfillment of his part of an agreement made between himself and
his two coaccused, Malicsi and Rodrigo, who promised him that they
would support his family during the time he might be a prisoner in jail;
that Andres Pablo did not know that they were gamblers, because he did
not find them in the place where the game was in progress, but that when
witness was being taken to the municipal building by the policemen he
told them who the gamblers were who had run away and whom Andres
Pablo could have seen.
Maximo Malicsi corroborated the foregoing testimony and further stated
that, on the arrival of the policemen who made the arrest and while they
were looking for the tambiolo, he succeeded in escaping; that Andres
Pablo had known him for a long time and could have arrested him had he
wished to do so; that prior to the hearing he and his codefendants, ROdrigo
and Dato, did in fact meet in the house of Valentin Sioson, on which
occasion they agreed that they would give the policemen Andres Pablo
P20, provided witness and Rodrigo were excluded from the charge; and
that only P15 was delivered to the said Pablo, through Gregorio Ganzon.
This statement was corroborated by the latter, though he said nothing
about what amount of money he delivered to the policeman Pablo.
The defendant Andres Pablo testified under oath that, on his being asked
by the justice of the peace how he could have seen Maximo Malicsi and
Antonio Rodrigo, he replied that he did not see them at the place where
the game was being conducted nor did he see them run away from there,
for he only found the table, the tambiolo, the bolas, and Francisco Dato;
that he did not surprise the game because the players ran away before he
arrived on the lot where, after fifteen minutes' search, he found only the
tambiolo and the bolas; that on arriving at the place where the game was
played, they found only Francisco Dato and some women in the Street,
and as Dato had already gone away, witness' companion, the policeman
Tomas de Leon, got on his bicycle and went after him; and that he found
the tambiolo at a distance of about 6 meters from a low table standing on
the lot.
From the facts above related, it is concluded that the defendant Andres
Pablo, who pleaded not guilty, falsely testified under oath in the justice of
the peace court of Balanga, Bataan, in saying he had not seen the alleged
gamblers Maximo Malicsi and Antonio Rodrigo in the place where,
according to the complaint filed, the game of jueteng was being played
and where the defendant and his companion, the policeman Tomas de
Leon, had found a table, tambiolo and bolas, used in the game of jueteng,
while it was proved at the trial that he did not them and did overtake them
while they were still in the place where the game was being played. But
notwithstanding his having seen them there, upon testifying in the cause
prosecuted against these men and another for gambling, he stated that he
had not seen them there, knowing that he was not telling the truth and was
false to the oath he had taken, and he did so willfully and deliberately on
account of his agreement with the men, Malicsi and Rodrigo, and in
consideration of a bribe of P15 which he had received in payment for his
false testimony he afterwards gave.
Francisco Dato and Gregorio Ganzon corroborated the assertion that the
policeman Andres Pablo undertook to exclude the gamblers, Malicsi and
Rodrigo, from the charge and from his testimony in consideration for P15
which he received through Gregorio Ganzon.
Andres Pablo was charged with the crime of perjury and was afterwards
convicted under Act No. 1697, which (according to the principle laid down
by this court in various decisions that are already well-settled rules of law)
repealed the provisions contained in articles 318 to 324 of the Penal Code
relative to false testimony.
By the second paragraph of the final section of the last article of the
Administrative Code, or Act No. 2657, there was repealed, among the
other statutes therein mentioned, the said Act No. 1697 relating to perjury,
and the repealing clause of the said Administrative Code does not say
under what other penal law in force the crime of false testimony, at least,
if not that of perjury, shall be punished.
Under these circumstances, may the crime of perjury or of false testimony
go unpunished, and is there no penal sanction whatever in this country for
this crime? May the truth be freely perverted in testimony given under oath
and which, for the very reason that it may save a guilty person from
punishment, may also result in the conviction and punishment of an
innocent person? If all this is not possible and is not right before the law
and good morals in a society of even mediocre culture, it must be
acknowledged that it is imperatively necessary to punish the crime of
perjury or of false testimony — a crime which can produce incalculable
and far-reaching harm to society and cause infinite disturbance of social
order.
The right of prosecution and punishment for a crime is one of the attributes
that by a natural law belongs to the sovereign power instinctively charged
by the common will of the members of society to look after, guard and
defend the interests of the community, the individual and social rights and
the liberties of every citizen and the guaranty of the exercise of his rights.
The power to punish evildoers has never been attacked or challenged, as
the necessity for its existence has been recognized even by the most
backward peoples. At times the criticism has been made that certain
penalties are cruel, barbarous, and atrocious; at other, that they are light
and inadequate to the nature and gravity of the offense, but the imposition
of punishment is admitted to be just by the whole human race, and even
barbarians and savages themselves, who are ignorant of all civilization,
are no exception.lawphil.net
Notwithstanding that the said Act No. 1697 (which, as interpreted by this
court in its decisions, was deemed to have repealed the aforementioned
article of the Penal Code relating to false testimony, comprised within the
term of perjury) did not expressly repeal the said articles of the Penal
Code; and as the said final article of the Administrative Code, in totally
repealing Act No. 1697, does not explicitly provide that the mentioned
articles of the Penal Code are also repealed, the will of the legislation not
being expressly and clearly stated with respect to the complete or partial
repeal of the said articles of the Penal Code, in the manner that it has totally
repealed the said Act No. 1697 relating its perjury; and, furthermore, as it
is imperative that society punish those of its members who are guilty of
perjury or false testimony, and it cannot be conceived that these crimes
should go unpunished or be freely committed without punishment of any
kind, it must be conceded that there must be in this country some prior,
preexistent law that punishes perjury or false testimony.
There certainly are laws which deal with perjury or false testimony, like
Law 7 et seq. of Title 2, third Partida.
However, since the Penal Code went into force, the crime of false
testimony has been punished under the said articles of the said Code,
which as we have already said, have not been specifically repealed by the
said Act No. 1697, but since its enactment, have not been applied, by the
mere interpretation given to them by this court in its decisions; yet, from
the moment that Act was repealed by the Administrative Code, the needs
of society have made
t necessary that the said articles 318 to 324 should be deemed to be in
force, inasmuch as the Administrative Code, in repealing the said Act
relating to perjury, has not explicitly provided that the said articles of the
Penal Code have likewise been repealed.
This manner of understanding and construing the statutes applicable to the
crime of false testimony or perjury is in harmony with the provision of
Law 11, Title 2, Book 3, of the Novisima Recopilacion which says::
All the laws of the kingdom, not expressly repealed by other subsequent
laws, must be literally obeyed and the excuse that they are not in use
cannot avail; for the Catholic kings and their successors so ordered in
numerous laws, and so also have I ordered on different occasions, and even
though they were repealed, it is seen that they have been revived by the
decree which I issued in conformity with them although they were not
expressly designated. The council will be informed thereof and will take
account of the importance of the matter.
It is, then, assumed that the said articles of the Penal Code are in force and
are properly applicable to crimes of false testimony. Therefore, in
consideration of the fact that in the case at bar the evidence shows it to
have been duly proven that the defendant, Andres Pablo, in testifying in
the cause prosecuted for gambling at jueteng, perverted the truth, for the
purpose of favoring the alleged gamblers, Maximo Malicsi and Antonio
Rodrigo, with the aggravating circumstance of the crime being committed
through bribery, for it was also proved that the defendant Pablo received
P15 in order that he should make no mention of the said two gamblers in
his sworn testimony, whereby he knowingly perverted the truth, we hold
that, in the commission of the crime of false testimony, there concurred
the aggravating circumstance of price or reward, No. 3 of article 10 of the
Code, with no mitigating circumstance to offset the effects of the said
aggravating one; wherefore the defendant has incurred the maximum
period of the penalty of arresto mayor in its maximum degree to prision
correccional in its medium degree, and a fine.
For the foregoing reasons, we hereby reverse the judgment appealed from
and sentence Andres Pablo to the penalty of two years four months and
one day of prision correccional, to pay a fine of 1,000 pesetas, and, in
case of insolvency, to suffer the corresponding subsidiary imprisonment,
which shall not exceed one-third of the principal penalty. He shall also pay
the costs of both instances. So ordered.
Johnson, Carson, Trent and Araullo, JJ., concur.
Moreland, J., concurs in the result .
.R. No. 17584 March 8, 1922
THE PEOPLE OF THE PHILIPPINES ISLANDS, plaintiff-
appellee,
vs.
GREGORIO SANTIAGO, defendant-appellant.
L. Porter Hamilton for appellant.
Acting Attorney-General Tuason for appellee.
ROMUALDEZ, J.:
Having caused the death of Porfirio Parondo, a boy 7 years old, by striking
him with automobile that he was driving, the herein appellant was
prosecuted for the crime of homicide by reckless negligence and was
sentenced to suffer one year and one day of prision correccional, and to
pay the costs of the trial.
Not agreeable with that sentence he now comes to this court alleging that
the court below committed four errors, to wit:
1. The trial court erred in not taking judicial notice of the fact that the
appellant was being prosecuted in conformity with Act No. 2886 of the
Philippine Legislature and that the Act is unconstitutional and gave no
jurisdiction in this case.
2. The lower court erred in not dismissing the complaint after the
presentation of the evidence in the case, if not before, for the reason that
said Act No. 2886 is unconstitutional and the proceedings had in the case
under the provisions of the Act constitute a prosecution of appellant
without due process of law.
3. The court a quo erred in not finding that it lacked jurisdiction over the
person of the accused and over the subject- matter of the complaint.
4. The trial court erred in finding the appellant guilty of the crime charged
and in sentencing him to one year and one day of prison correccional and
to the payment of costs.
With regard to the questions of fact, we have to say that we have examined
the record and find that the conclusions of the trial judge, as contained in
his well-written decision, are sufficiently sustained by the evidence
submitted.
The accused was driving an automobile at the rate of 30 miles an hour on
a highway 6 meter wide, notwithstanding the fact that he had to pass a
narrow space between a wagon standing on one side of the road and a heap
of stones on the other side where the were two young boys, the appellant
did not take the precaution required by the circumstances by slowing his
machine, and did not proceed with the vigilant care that under the
circumstances an ordinary prudent man would take in order to avoid
possible accidents that might occur, as unfortunately did occur, as his
automobile ran over the boy Porfirio Parondo who was instantly killed as
the result of the accident.
These facts are so well established in the records that there cannot be a
shade of doubt about them.
Coming now to the other assignments of error, it will be seen that they
deal with the fundamental questions as to whether or not Act No. 2886,
under which the complaint in the present case was filed, is valid and
constitutional.
This Act is attacked on account of the amendments that it introduces in
General Orders No. 58, the defense arguing that the Philippine Legislature
was, and is, not authorized to amend General Orders No. 58, as it did by
amending section 2 thereof because its provisions have the character of
constitutional law. Said section 2 provides as follows:
All prosecutions for public offenses shall be in the name of the United
States against the persons charged with the offenses. (G. O. No. 58, sec. 2
).
Act No. 2886, which amends it, by virtue of which the People of the
Philippine Island is made the plaintiff in this information, contains the
following provisions in section 1:
SECTION 1. Section two of General Orders, Numbered Fifty-eight, series
of nineteen hundred, is hereby amended to read as follows:
"SEC. 2. All prosecutions for public offenses shall be in the name of the
People of the Philippine Islands against the persons charged with the
offense."
Let us examine the question.
For practical reasons, the procedure in criminal matters is not incorporated
in the Constitutions of the States, but is left in the hand of the legislatures,
so that it falls within the realm of public statutory law.
As has been said by Chief Justice Marshall:
A constitution, to contain an accurate detail of all the Subdivisions of
which its great powers will admit, and of all the means by which they may
be carried into execution, would partake of a prolixity of a legal code, and
could scarcely be embraced by the human mind. It would probably never
be understood by the public. (M'Culloch vs. Maryland [1819], 4 Wheat.,
316, 407; 4 L. ed., 579.)
That is why, in pursuance of the Constitution of the United States, each
States, each State has the authority, under its police power, to define and
punish crimes and to lay down the rules of criminal procedure.
The states, as a part of their police power, have a large measure of
discretion in creating and defining criminal offenses. . . .
A Statute relating to criminal procedure is void as a denial of the equal
protection of the laws if it prescribes a different procedure in the case of
persons in like situation. Subject to this limitation, however, the legislature
has large measure of discretion in prescribing the modes of criminal
procedure. . . . (12 C.J., 1185, 1186. See Collins vs. Johnston, 237 U.S.,
502; 35 s. Ct. Rep. 649; 59 L. ed., 1071; Shevlin-Carpenter Co. vs.
Minnesota, 218 U.S., 57; 30 S. Ct. Rep., 663; 54 L. ed., 930; Lynn vs.
Flancders, 141 Ga., 500; 81 S.E., 205.)
This power of the States of the North American Union was also granted to
its territories such as the Philippines:
The plenary legislative power which Congress possesses over the
territories and possessions of the United States may be exercised by that
body itself, or, as is much more often the case, it may be delegated to a
local agency, such as a legislature, the organization of which proceeds
upon much the same lines as in the several States or in Congress, which is
often taken as a model, and whose powers are limited by the Organic Act;
but within the scope of such act is has complete authority to legislate, . . .
and in general, to legislate upon all subjects within the police power of the
territory. (38 Cyc., 205-207.)
The powers of the territorial legislatures are derived from Congress. By
act of Congress their power extends "to all rightful subjects of legislation
not inconsistent with the Constitution and laws of the United States;" and
this includes the power to define and punish crimes. (16 C. J., 62.)
And in the exercise of such powers the military government of the army
of occupation, functioning as a territorial legislature, thought it convenient
to establish new rules of procedure in criminal matters, by the issuance of
General Orders No. 58, the preamble of which reads:
In the interests of justice, and to safeguard the civil liberties of the
inhabitants of these Islands, the criminal code of procedure now in force
therein is hereby amended in certain of its important provisions, as
indicated in the following enumerated sections. (Emphasis ours.)
Its main purpose is, therefore, limited to criminal procedure and its
intention is to give to its provisions the effect of law in criminal matters.
For that reason it provides in section 1 that:
The following provisions shall have the force and effect of law in criminal
matters in the Philippine Islands from and after the 15th day of May, 1900,
but existing laws on the same subjects shall remain valid except in so far
as hereinafter modified or repealed expressly or by necessary implication.
From what has been said it clearly follows that the provisions of this
General Order do not the nature of constitutional law either by reason of
its character or by reason of the authority that enacted it into law.
It cannot be said that it has acquired this character because this order was
made its own by the Congress of the United States for, as a mater of fact,
this body never adopted it as a law of its own creation either before the
promulgation of Act No. 2886, herein discussed, or, to our knowledge, to
this date.
Since the provisions of this General Order have the character of statutory
law, the power of the Legislature to amend it is self-evident, even if the
question is considered only on principle. Our present Legislature, which
has enacted Act No. 2886, the subject of our inquiry, is the legal successor
to the Military Government as a legislative body.
Since the advent of the American sovereignty in the Philippines the
legislative branch of our government has undergone transformations and
has developed itself until it attained its present form. Firstly, it was the
Military Government of the army of occupation which, in accordance with
international law and practice, was vested with legislative functions and
in fact did legislate; afterwards, complying with the instructions of
President McKinley which later were ratified by Congress (sec. 1 of the
Act of July 1, 1902) the legislative powers of the Military Government
were transferred to the Philippine Commission; then, under the provisions
of section 7 of the Act of Congress of July 1, 1902, the Philippine
Assembly was created and it functioned as a colegislative body with the
Philippine Commission. Finally, by virtue of the provisions of sections 12
of the Act of Congress of August 29, 1916, known as the Jones Law, the
Philippine Commission gave way to the Philippine Senate, the Philippine
Assembly became the House of Representatives, and thus was formed the
present Legislature composed of two Houses which has enacted the
aforesaid Act No. 2886.
As a matter of fact, Act No. 2886 is not the first law that amends General
Orders No. 58. The Philippine Commission, at various times, had
amended it by the enactment of laws among which we may cite Act No.
194, regarding preliminary investigation, Act No. 440 relating to counsels
de oficio and Act No. 590 about preliminary investigations by justices of
the peace of provincial capitals. Later on, and before the enactment of Act
No. 2886, herein controverted, the Legislature had also amended this
General Orders No. 58 by the enactment of Act No. 2677 regarding
appeals to the Supreme Court of causes originating in the justice of the
peace courts and by Act No. 2709 which deals with the exclusion of
accused persons from the information in order to be utilized as state's
witnesses.
These amendments repeatedly made by the Philippine Commission as well
as by our present Legislature are perfectly within the scope of the powers
of the said legislative bodies as the successors of the Military Government
that promulgated General Orders No. 58.
No proof is required to demonstrate that the present Legislature had, and
had, the power to enact and amend laws. (U.S. vs. Bull. 15 Phil., 7.) That
it has the power to legislate on criminal matters is very evident from the
wording of section 7 of the Jones Law which says:
That the legislative authority herein provided shall have power, when not
inconsistent with this Act, by due enactment to amend, alter, modify, or
repeal any law, civil or criminal, continued in force by this Act as it may
from time to time see fit.
It is urged the right to prosecute and punish crimes is an attributed of
sovereignty. This assertion is right; but it is also true that by reason of the
principle of territoriality as applied in the supression, of crimes, such
power is delegated to subordinate government subdivisions such as
territories. As we have seen in the beginning, the territorial legislatures
have the power to define and punish crimes, a power also possessed by the
Philippine Legislature by virtue of the provisions of sections 7, already
quoted, of the Jones Law. These territorial governments are local agencies
of the Federal Government, wherein sovereignty resides; and when the
territorial government of the Philippines prosecutes and punishes public
crimes it does so by virtue of the authority delegated to it by the supreme
power of the Nation.
This delegation may be made either expressly as in the case of the several
States of the Union and incorporated territories like Porto Rico and
Hawaii, or tacitly as is the case with the Philippines, which is an organized
territory though not incorporated with the Union. (Malcolm, Philippine
Constitutional Law, 181-205.)
This tacit delegation to our Government needs no demonstration. As a
matter of fact, the crimes committed within our territory, even before
section 2 of General Orders No. 58 was amended, were prosecuted and
punished in this jurisdiction as is done at present; but then as now the
repression of crimes was done, and is still done, under the sovereign
authority of the United States, whose name appears as the heading in all
pleadings in criminal causes and in other judicial papers and notarial acts.
The use of such a heading is prescribed for civil cases in form 1 of section
784 of the Code of Civil Procedure; in criminal causes the constant
practice followed in this jurisdiction established its use; and in notarial
matters its use is provided by section 127 of Act No. 496. This long
continued practice in criminal matters and the legal provision relating to
civil cases and notarial acts have not been amended by any law, much less
by Act No. 2886, the subject of the present inquiry.
There is not a single constitutional provision applicable to the Philippines
prescribing the name to be used as party plaintiff in criminal cases.
The fact that the political status of this country is as yet undetermined and
in a transitory stage, is, in our opinion, responsible for the fact that there
is no positive provision in our constitutional law regarding the use of the
name of the People of the Philippine Islands, as party plaintiff, in criminal
prosecutions, as is otherwise the case in the respective constitutional
charters of the States of the Union and incorporated territories — a
situation which must not be understood as depriving the Government of
the Philippines of its power, however delegated, to prosecute public
crimes. The fact is undeniable that the present government of the
Philippines, created by the Congress of the United States, is autonomous.
This autonomy of the Government of the Philippines reaches all judicial
actions, the case at bar being one of them; as an example of such
autonomy, this Government, the same as that of Hawaii and Porto Rico
(People of Porto Rico vs. Rosaly y Castillo [1913], 227 U.S., 270; 57 L.
ed., 507; 33 Sup. Ct. Rep., 352) cannot be sued without its consent.
(Merritt vs. Government of the Philippine Islands, 34 Phil., 311; L. S.
Moon & Co. vs. Harrison, p. 27, ante.) The doctrine, laid down in these
cases, acknowledges the prerogative of personality in the Government of
the Philippines, which, if it is sufficient to shield it from any responsibility
in court in its own name unless it consents thereto, it should be also, as
sufficiently authoritative in law, to give that government the right to
prosecute in court in its own name whomsoever violates within its territory
the penal laws in force therein.
However, limiting ourselves to the question relative to the form of the
complaint in criminal matters, it is within the power of the Legislature to
prescribe the form of the criminal complaint as long as the constitutional
provision of the accused to be informed of the nature of the accusation is according to the practice in the particular jurisdictions; but omissions or
not violated. defects in this respect may be supplied or cured by other parts of the
Under the Constitution of the United States and by like provisions in the records, and the omissions of such a recital or defects therein, even when
constitutions of the various states, the accused is entitled to be informed required by the constitution or by statute, is a defect of form within a
of the nature and cause of the accusation against him . . . statute requiring exceptions for defect of form to be made before trial. (23
It is within the power of the legislatures under such a constitutional Cyc., 237, 238.)
provision to prescribe the form of the indictment or information, and such We hold that the provisions of sections 2 of General Orders No. 58, as
form may omit averments regarded as necessary at common law. (22 Cyc., amended by Act No. 2886, do not partake of the same character as the
285.) provisions of a constitution; that the said Act No. 2886 is valid and is not
All these considerations a priori are strengthened a posteriori by the violative of any constitutional provisions and that the court a quo did not
important reason disclosed by the following fact — that the Congress has commit any of the errors assigned.
tacitly approved Act No. 2886. Both the Act of Congress of July 1, 1902, The sentence appealed from is hereby affirmed, the appellant being
section 86, and the Jones Law, last paragraph of section 19, provide that furthermore sentenced to the accessory penalties prescribed in article 61
all the laws enacted by the Government of the Philippines or its of the Penal Code, and to indemnify the heirs of the deceased in the sum
Legislature shall be forwarded to the Congress of the United States, which of P1,000 and to the payment of the costs of both instances. So ordered.
body reserves the right and power to annul them. And presuming, as Araullo, C.J., Street, Malcolm, Avanceña and Villamor, JJ., concur.
legally we must, that the provisions of these laws have been complied Ostrand and Johns, JJ., concur in the result.
with, it is undisputed that the Congress of the United States did not annul
any of those acts already adverted to — Nos. 194, 440, 490 (of the
Philippine Commission), and 2677, 2709 and the one now in question No.
2886 (of the present Legislature) — all of which were amendatory of
General Orders No. 58. The Act now under discussion (No. 2886) took
effect on February 24, 1920, and the criminal complaint in this case was
filed on May 10, 1920. The silence of Congress regarding those laws
amendatory of the said General Order must be considered as an act of
approval.
If Congress fails to notice or take action on any territorial legislation the
reasonable inference is that it approves such act. (26 R.C.L., 679; vide
Clinton vs. Englebrcht, 13 Wall., 434; 20 [L. ed.] 659; Tiaco vs. Forbes,
228 U.S., 549; 33 S. Ct. Rep., 585; 57 [L. ed.], 960; Nixon vs. Reid, 8 S.d.,
507; 67 N.W., 57; 32 L.R.A., 315.)
Furthermore, supposing for the sake of argument, that the mention of the
People of the Philippine Islands as plaintiff in the title of the information
constitutes a vice or defect, the same is not fatal when, as in the present
case, it was not objected to in the court below.
An indictment must, in many states under express statutory or
constitutional provision, show by its title or by proper recitals in the
caption or elsewhere that the prosecution is in the name and by the
authority of the state, the commonwealth, or the people of the state,
G.R. No. L-63915 April 24, 1985
LORENZO M. TAÑADA, ABRAHAM F. SARMIENTO, and
MOVEMENT OF ATTORNEYS FOR BROTHERHOOD,
INTEGRITY AND NATIONALISM, INC. [MABINI], petitioners,
vs.
HON. JUAN C. TUVERA, in his capacity as Executive Assistant to
the President, HON. JOAQUIN VENUS, in his capacity as Deputy
Executive Assistant to the President , MELQUIADES P. DE LA
CRUZ, in his capacity as Director, Malacañang Records Office, and
FLORENDO S. PABLO, in his capacity as Director, Bureau of
Printing, respondents.
ESCOLIN, J.:
Invoking the people's right to be informed on matters of public concern,
a right recognized in Section 6, Article IV of the 1973 Philippine
Constitution, 1 as well as the principle that laws to be valid and
enforceable must be published in the Official Gazette or otherwise
effectively promulgated, petitioners seek a writ of mandamus to compel
respondent public officials to publish, and/or cause the publication in the
Official Gazette of various presidential decrees, letters of instructions,
general orders, proclamations, executive orders, letter of implementation
and administrative orders.
Specifically, the publication of the following presidential issuances is
sought:
a] Presidential Decrees Nos. 12, 22, 37, 38, 59, 64, 103,
171, 179, 184, 197, 200, 234, 265, 286, 298, 303, 312,
324, 325, 326, 337, 355, 358, 359, 360, 361, 368, 404,
406, 415, 427, 429, 445, 447, 473, 486, 491, 503, 504,
521, 528, 551, 566, 573, 574, 594, 599, 644, 658, 661,
718, 731, 733, 793, 800, 802, 835, 836, 923, 935, 961,
1017-1030, 1050, 1060-1061, 1085, 1143, 1165, 1166,
1242, 1246, 1250, 1278, 1279, 1300, 1644, 1772, 1808,
1810, 1813-1817, 1819-1826, 1829-1840, 1842-1847.
b] Letter of Instructions Nos.: 10, 39, 49, 72, 107, 108,
116, 130, 136, 141, 150, 153, 155, 161, 173, 180, 187,
188, 192, 193, 199, 202, 204, 205, 209, 211-213, 215-
224, 226-228, 231-239, 241-245, 248, 251, 253-261, 263-
269, 271-273, 275-283, 285-289, 291, 293, 297-299, 301-
303, 309, 312-315, 325, 327, 343, 346, 349, 357, 358,
362, 367, 370, 382, 385, 386, 396-397, 405, 438-440,
444- 445, 473, 486, 488, 498, 501, 399, 527, 561, 576,
587, 594, 599, 600, 602, 609, 610, 611, 612, 615, 641,
642, 665, 702, 712-713, 726, 837-839, 878-879, 881, 882,
939-940, 964,997,1149-1178,1180-1278.
c] General Orders Nos.: 14, 52, 58, 59, 60, 62, 63, 64 &
65.
d] Proclamation Nos.: 1126, 1144, 1147, 1151, 1196,
1270, 1281, 1319-1526, 1529, 1532, 1535, 1538, 1540-
1547, 1550-1558, 1561-1588, 1590-1595, 1594-1600,
1606-1609, 1612-1628, 1630-1649, 1694-1695, 1697-
1701, 1705-1723, 1731-1734, 1737-1742, 1744, 1746-
1751, 1752, 1754, 1762, 1764-1787, 1789-1795, 1797,
1800, 1802-1804, 1806-1807, 1812-1814, 1816, 1825-
1826, 1829, 1831-1832, 1835-1836, 1839-1840, 1843-
1844, 1846-1847, 1849, 1853-1858, 1860, 1866, 1868,
1870, 1876-1889, 1892, 1900, 1918, 1923, 1933, 1952,
1963, 1965-1966, 1968-1984, 1986-2028, 2030-2044,
2046-2145, 2147-2161, 2163-2244.
e] Executive Orders Nos.: 411, 413, 414, 427, 429-454,
457- 471, 474-492, 494-507, 509-510, 522, 524-528, 531-
532, 536, 538, 543-544, 549, 551-553, 560, 563, 567-568,
570, 574, 593, 594, 598-604, 609, 611- 647, 649-677,
679-703, 705-707, 712-786, 788-852, 854-857.
f] Letters of Implementation Nos.: 7, 8, 9, 10, 11-22, 25-
27, 39, 50, 51, 59, 76, 80-81, 92, 94, 95, 107, 120, 122,
123.
g] Administrative Orders Nos.: 347, 348, 352-354, 360-
378, 380-433, 436-439.
The respondents, through the Solicitor General, would have this case
dismissed outright on the ground that petitioners have no legal
personality or standing to bring the instant petition. The view is
submitted that in the absence of any showing that petitioners are
personally and directly affected or prejudiced by the alleged non-
publication of the presidential issuances in question 2 said petitioners are
without the requisite legal personality to institute this mandamus
proceeding, they are not being "aggrieved parties" within the meaning of
Section 3, Rule 65 of the Rules of Court, which we quote:
 SEC. 3. Petition for Mandamus.—When any tribunal,
corporation, board or person unlawfully neglects the
performance of an act which the law specifically enjoins
as a duty resulting from an office, trust, or station, or
unlawfully excludes another from the use a rd enjoyment
of a right or office to which such other is entitled, and
there is no other plain, speedy and adequate remedy in the
ordinary course of law, the person aggrieved thereby may
file a verified petition in the proper court alleging the
facts with certainty and praying that judgment be rendered
commanding the defendant, immediately or at some other
specified time, to do the act required to be done to Protect
the rights of the petitioner, and to pay the damages
sustained by the petitioner by reason of the wrongful acts
of the defendant.
Upon the other hand, petitioners maintain that since the subject of the
petition concerns a public right and its object is to compel the
performance of a public duty, they need not show any specific interest
for their petition to be given due course.
The issue posed is not one of first impression. As early as the 1910 case
of Severino vs. Governor General, 3 this Court held that while the
general rule is that "a writ of mandamus would be granted to a private
individual only in those cases where he has some private or particular
interest to be subserved, or some particular right to be protected,
independent of that which he holds with the public at large," and "it is for
the public officers exclusively to apply for the writ when public rights
are to be subserved [Mithchell vs. Boardmen, 79 M.e., 469],"
nevertheless, "when the question is one of public right and the object of
the mandamus is to procure the enforcement of a public duty, the people
are regarded as the real party in interest and the relator at whose
instigation the proceedings are instituted need not show that he has any
legal or special interest in the result, it being sufficient to show that he is
a citizen and as such interested in the execution of the laws [High,
Extraordinary Legal Remedies, 3rd ed., sec. 431].
Thus, in said case, this Court recognized the relator Lope Severino, a
private individual, as a proper party to the mandamus proceedings
brought to compel the Governor General to call a special election for the
position of municipal president in the town of Silay, Negros Occidental.
Speaking for this Court, Mr. Justice Grant T. Trent said:
We are therefore of the opinion that the weight of
authority supports the proposition that the relator is a
proper party to proceedings of this character when a
public right is sought to be enforced. If the general rule in
America were otherwise, we think that it would not be
applicable to the case at bar for the reason 'that it is
always dangerous to apply a general rule to a particular
case without keeping in mind the reason for the rule,
because, if under the particular circumstances the reason
for the rule does not exist, the rule itself is not applicable
and reliance upon the rule may well lead to error'
No reason exists in the case at bar for applying the general
rule insisted upon by counsel for the respondent. The
circumstances which surround this case are different from
those in the United States, inasmuch as if the relator is not
a proper party to these proceedings no other person could
be, as we have seen that it is not the duty of the law
officer of the Government to appear and represent the
people in cases of this character.
The reasons given by the Court in recognizing a private citizen's legal
personality in the aforementioned case apply squarely to the present
petition. Clearly, the right sought to be enforced by petitioners herein is a
public right recognized by no less than the fundamental law of the land.
If petitioners were not allowed to institute this proceeding, it would
indeed be difficult to conceive of any other person to initiate the same,
considering that the Solicitor General, the government officer generally
empowered to represent the people, has entered his appearance for
respondents in this case.
Respondents further contend that publication in the Official Gazette is
not a sine qua non requirement for the effectivity of laws where the laws
themselves provide for their own effectivity dates. It is thus submitted
that since the presidential issuances in question contain special
provisions as to the date they are to take effect, publication in the
Official Gazette is not indispensable for their effectivity. The point
stressed is anchored on Article 2 of the Civil Code:
Art. 2. Laws shall take effect after fifteen days following
the completion of their publication in the Official Gazette,
unless it is otherwise provided, ...
The interpretation given by respondent is in accord with this Court's
construction of said article. In a long line of decisions,4 this Court has
ruled that publication in the Official Gazette is necessary in those cases
where the legislation itself does not provide for its effectivity date-for
then the date of publication is material for determining its date of
effectivity, which is the fifteenth day following its publication-but not
when the law itself provides for the date when it goes into effect.
Respondents' argument, however, is logically correct only insofar as it
equates the effectivity of laws with the fact of publication. Considered in
the light of other statutes applicable to the issue at hand, the conclusion
is easily reached that said Article 2 does not preclude the requirement of
publication in the Official Gazette, even if the law itself provides for the
date of its effectivity. Thus, Section 1 of Commonwealth Act 638
provides as follows:
Section 1. There shall be published in the Official Gazette
[1] all important legisiative acts and resolutions of a
public nature of the, Congress of the Philippines; [2] all
executive and administrative orders and proclamations,
except such as have no general applicability; [3] decisions
or abstracts of decisions of the Supreme Court and the
Court of Appeals as may be deemed by said courts of
sufficient importance to be so published; [4] such
documents or classes of documents as may be required so
to be published by law; and [5] such documents or classes
of documents as the President of the Philippines shall
determine from time to time to have general applicability
and legal effect, or which he may authorize so to be
published. ...
The clear object of the above-quoted provision is to give the general
public adequate notice of the various laws which are to regulate their
actions and conduct as citizens. Without such notice and publication,
there would be no basis for the application of the maxim "ignorantia
legis non excusat." It would be the height of injustice to punish or
otherwise burden a citizen for the transgression of a law of which he had
no notice whatsoever, not even a constructive one.
Perhaps at no time since the establishment of the Philippine Republic has
the publication of laws taken so vital significance that at this time when
the people have bestowed upon the President a power heretofore enjoyed
solely by the legislature. While the people are kept abreast by the mass
media of the debates and deliberations in the Batasan Pambansa—and
for the diligent ones, ready access to the legislative records—no such
publicity accompanies the law-making process of the President. Thus,
without publication, the people have no means of knowing what
presidential decrees have actually been promulgated, much less a definite
way of informing themselves of the specific contents and texts of such
decrees. As the Supreme Court of Spain ruled: "Bajo la denominacion
generica de leyes, se comprenden tambien los reglamentos, Reales
decretos, Instrucciones, Circulares y Reales ordines dictadas de
conformidad con las mismas por el Gobierno en uso de su potestad.5
The very first clause of Section I of Commonwealth Act 638 reads:
"There shall be published in the Official Gazette ... ." The word "shall"
used therein imposes upon respondent officials an imperative duty. That
duty must be enforced if the Constitutional right of the people to be
informed on matters of public concern is to be given substance and
reality. The law itself makes a list of what should be published in the
Official Gazette. Such listing, to our mind, leaves respondents with no
discretion whatsoever as to what must be included or excluded from such
publication.
The publication of all presidential issuances "of a public nature" or "of
general applicability" is mandated by law. Obviously, presidential
decrees that provide for fines, forfeitures or penalties for their violation
or otherwise impose a burden or. the people, such as tax and revenue
measures, fall within this category. Other presidential issuances which
apply only to particular persons or class of persons such as
administrative and executive orders need not be published on the
assumption that they have been circularized to all concerned. 6
It is needless to add that the publication of presidential issuances "of a
public nature" or "of general applicability" is a requirement of due
process. It is a rule of law that before a person may be bound by law, he
must first be officially and specifically informed of its contents. As
Justice Claudio Teehankee said in Peralta vs. COMELEC 7:
In a time of proliferating decrees, orders and letters of
instructions which all form part of the law of the land, the
requirement of due process and the Rule of Law demand
that the Official Gazette as the official government
repository promulgate and publish the texts of all such
decrees, orders and instructions so that the people may
know where to obtain their official and specific contents.
The Court therefore declares that presidential issuances of general
application, which have not been published, shall have no force and
effect. Some members of the Court, quite apprehensive about the
possible unsettling effect this decision might have on acts done in
reliance of the validity of those presidential decrees which were
published only during the pendency of this petition, have put the
question as to whether the Court's declaration of invalidity apply to P.D.s
which had been enforced or implemented prior to their publication. The
answer is all too familiar. In similar situations in the past this Court had
taken the pragmatic and realistic course set forth in Chicot County
Drainage District vs. Baxter Bank 8 to wit:
The courts below have proceeded on the theory that the
Act of Congress, having been found to be
unconstitutional, was not a law; that it was inoperative,
conferring no rights and imposing no duties, and hence
affording no basis for the challenged decree. Norton v.
Shelby County, 118 U.S. 425, 442; Chicago, 1. & L. Ry.
Co. v. Hackett, 228 U.S. 559, 566. It is quite clear,
however, that such broad statements as to the effect of a
determination of unconstitutionality must be taken with
qualifications. The actual existence of a statute, prior to
such a determination, is an operative fact and may have
consequences which cannot justly be ignored. The past
cannot always be erased by a new judicial declaration.
The effect of the subsequent ruling as to invalidity may
have to be considered in various aspects-with respect to
particular conduct, private and official. Questions of
rights claimed to have become vested, of status, of prior
determinations deemed to have finality and acted upon
accordingly, of public policy in the light of the nature
both of the statute and of its previous application, demand
examination. These questions are among the most
difficult of those which have engaged the attention of
courts, state and federal and it is manifest from numerous
decisions that an all-inclusive statement of a principle of
absolute retroactive invalidity cannot be justified.
Consistently with the above principle, this Court in Rutter vs.
Esteban 9 sustained the right of a party under the Moratorium Law, albeit
said right had accrued in his favor before said law was declared
unconstitutional by this Court.
Similarly, the implementation/enforcement of presidential decrees prior
to their publication in the Official Gazette is "an operative fact which
may have consequences which cannot be justly ignored. The past cannot
always be erased by a new judicial declaration ... that an all-inclusive
statement of a principle of absolute retroactive invalidity cannot be
justified."
From the report submitted to the Court by the Clerk of Court, it appears
that of the presidential decrees sought by petitioners to be published in
the Official Gazette, only Presidential Decrees Nos. 1019 to 1030,
inclusive, 1278, and 1937 to 1939, inclusive, have not been so
published. 10 Neither the subject matters nor the texts of these PDs can be
ascertained since no copies thereof are available. But whatever their
subject matter may be, it is undisputed that none of these unpublished
PDs has ever been implemented or enforced by the government.
In Pesigan vs. Angeles, 11 the Court, through Justice Ramon Aquino,
ruled that "publication is necessary to apprise the public of the contents
of [penal] regulations and make the said penalties binding on the persons
affected thereby. " The cogency of this holding is apparently recognized
by respondent officials considering the manifestation in their comment
that "the government, as a matter of policy, refrains from prosecuting
violations of criminal laws until the same shall have been published in
the Official Gazette or in some other publication, even though some
criminal laws provide that they shall take effect immediately.
WHEREFORE, the Court hereby orders respondents to publish in the
Official Gazette all unpublished presidential issuances which are of
general application, and unless so published, they shall have no binding
force and effect.
SO ORDERED.
Relova, J., concurs.
Aquino, J., took no part.
Concepcion, Jr., J., is on leave.
Separate Opinions
FERNANDO, C.J., concurring (with qualification):
There is on the whole acceptance on my part of the views expressed in
the ably written opinion of Justice Escolin. I am unable, however, to
concur insofar as it would unqualifiedly impose the requirement of
publication in the Official Gazette for unpublished "presidential
issuances" to have binding force and effect.
I shall explain why.
1. It is of course true that without the requisite publication, a due process
question would arise if made to apply adversely to a party who is not
even aware of the existence of any legislative or executive act having the
force and effect of law. My point is that such publication required need
not be confined to the Official Gazette. From the pragmatic standpoint,
there is an advantage to be gained. It conduces to certainty. That is too be
admitted. It does not follow, however, that failure to do so would in all
cases and under all circumstances result in a statute, presidential decree
or any other executive act of the same category being bereft of any
binding force and effect. To so hold would, for me, raise a constitutional
question. Such a pronouncement would lend itself to the interpretation
that such a legislative or presidential act is bereft of the attribute of
effectivity unless published in the Official Gazette. There is no such
requirement in the Constitution as Justice Plana so aptly pointed out. It is
true that what is decided now applies only to past "presidential
issuances". Nonetheless, this clarification is, to my mind, needed to
avoid any possible misconception as to what is required for any statute or
presidential act to be impressed with binding force or effectivity.
2. It is quite understandable then why I concur in the separate opinion of
Justice Plana. Its first paragraph sets forth what to me is the
constitutional doctrine applicable to this case. Thus: "The Philippine
Constitution does not require the publication of laws as a prerequisite for
their effectivity, unlike some Constitutions elsewhere. It may be said
though that the guarantee of due process requires notice of laws to
affected Parties before they can be bound thereby; but such notice is not
necessarily by publication in the Official Gazette. The due process clause
is not that precise. 1 I am likewise in agreement with its closing
paragraph: "In fine, I concur in the majority decision to the extent that it
requires notice before laws become effective, for no person should be
bound by a law without notice. This is elementary fairness. However, I
beg to disagree insofar as it holds that such notice shall be by publication
in the Official Gazette. 2
3. It suffices, as was stated by Judge Learned Hand, that law as the
command of the government "must be ascertainable in some form if it is
to be enforced at all. 3 It would indeed be to reduce it to the level of mere
futility, as pointed out by Justice Cardozo, "if it is unknown and
unknowable. 4 Publication, to repeat, is thus essential. What I am not
prepared to subscribe to is the doctrine that it must be in the Official
Gazette. To be sure once published therein there is the ascertainable
mode of determining the exact date of its effectivity. Still for me that
does not dispose of the question of what is the jural effect of past
presidential decrees or executive acts not so published. For prior thereto,
it could be that parties aware of their existence could have conducted
themselves in accordance with their provisions. If no legal consequences
could attach due to lack of publication in the Official Gazette, then
serious problems could arise. Previous transactions based on such
"Presidential Issuances" could be open to question. Matters deemed
settled could still be inquired into. I am not prepared to hold that such an
effect is contemplated by our decision. Where such presidential decree or
executive act is made the basis of a criminal prosecution, then, of course,
its ex post facto character becomes evident. 5 In civil cases though,
retroactivity as such is not conclusive on the due process aspect. There
must still be a showing of arbitrariness. Moreover, where the challenged
presidential decree or executive act was issued under the police power,
the non-impairment clause of the Constitution may not always be
successfully invoked. There must still be that process of balancing to
determine whether or not it could in such a case be tainted by
infirmity. 6 In traditional terminology, there could arise then a question
of unconstitutional application. That is as far as it goes.
4. Let me make therefore that my qualified concurrence goes no further
than to affirm that publication is essential to the effectivity of a
legislative or executive act of a general application. I am not in
agreement with the view that such publication must be in the Official
Gazette. The Civil Code itself in its Article 2 expressly recognizes that
the rule as to laws taking effect after fifteen days following the
completion of their publication in the Official Gazette is subject to this
exception, "unless it is otherwise provided." Moreover, the Civil Code is
itself only a legislative enactment, Republic Act No. 386. It does not and
cannot have the juridical force of a constitutional command. A later
legislative or executive act which has the force and effect of law can
legally provide for a different rule.
5. Nor can I agree with the rather sweeping conclusion in the opinion of
Justice Escolin that presidential decrees and executive acts not thus
previously published in the Official Gazette would be devoid of any legal
character. That would be, in my opinion, to go too far. It may be fraught,
as earlier noted, with undesirable consequences. I find myself therefore
unable to yield assent to such a pronouncement.
I am authorized to state that Justices Makasiar, Abad Santos, Cuevas,
and Alampay concur in this separate opinion.
Makasiar, Abad Santos, Cuevas and Alampay, JJ., concur.
TEEHANKEE, J., concurring:
I concur with the main opinion of Mr. Justice Escolin and the concurring
opinion of Mme. Justice Herrera. The Rule of Law connotes a body of
norms and laws published and ascertainable and of equal application to
all similarly circumstances and not subject to arbitrary change but only
under certain set procedures. The Court has consistently stressed that "it
is an elementary rule of fair play and justice that a reasonable
opportunity to be informed must be afforded to the people who are
commanded to obey before they can be punished for its violation,1 citing
the settled principle based on due process enunciated in earlier cases that
"before the public is bound by its contents, especially its penal
provisions, a law, regulation or circular must first be published and the
people officially and specially informed of said contents and its
penalties.
Without official publication in the Official Gazette as required by Article
2 of the Civil Code and the Revised Administrative Code, there would be
no basis nor justification for the corollary rule of Article 3 of the Civil
Code (based on constructive notice that the provisions of the law are
ascertainable from the public and official repository where they are duly
published) that "Ignorance of the law excuses no one from compliance
therewith.
Respondents' contention based on a misreading of Article 2 of the Civil
Code that "only laws which are silent as to their effectivity [date] need
be published in the Official Gazette for their effectivity" is manifestly
untenable. The plain text and meaning of the Civil Code is that "laws
shall take effect after fifteen days following the completion of their
publication in the Official Gazette, unless it is otherwise provided, "
i.e. a different effectivity date is provided by the law itself. This proviso
perforce refers to a law that has been duly published pursuant to the basic
constitutional requirements of due process. The best example of this is
the Civil Code itself: the same Article 2 provides otherwise that it "shall
take effect [only] one year [not 15 days] after such publication. 2 To
sustain respondents' misreading that "most laws or decrees specify the
date of their effectivity and for this reason, publication in the Official
Gazette is not necessary for their effectivity 3 would be to nullify and
render nugatory the Civil Code's indispensable and essential requirement
of prior publication in the Official Gazette by the simple expedient of
providing for immediate effectivity or an earlier effectivity date in the
law itself before the completion of 15 days following its publication
which is the period generally fixed by the Civil Code for its proper
dissemination.
MELENCIO-HERRERA, J., concurring:
I agree. There cannot be any question but that even if a decree provides
for a date of effectivity, it has to be published. What I would like to state
in connection with that proposition is that when a date of effectivity is
mentioned in the decree but the decree becomes effective only fifteen
(15) days after its publication in the Official Gazette, it will not mean
that the decree can have retroactive effect to the date of effectivity
mentioned in the decree itself. There should be no retroactivity if the
retroactivity will run counter to constitutional rights or shall destroy
vested rights.
PLANA, J., concurring (with qualification):
The Philippine Constitution does not require the publication of laws as a
prerequisite for their effectivity, unlike some Constitutions
elsewhere. * It may be said though that the guarantee of due process
requires notice of laws to affected parties before they can be bound
thereby; but such notice is not necessarily by publication in the Official
Gazette. The due process clause is not that precise. Neither is the
publication of laws in the Official Gazette required by any statute as a
prerequisite for their effectivity, if said laws already provide for their
effectivity date.
Article 2 of the Civil Code provides that "laws shall take effect after
fifteen days following the completion of their publication in the Official
Gazette, unless it is otherwise provided " Two things may be said of this
provision: Firstly, it obviously does not apply to a law with a built-in
provision as to when it will take effect. Secondly, it clearly recognizes
that each law may provide not only a different period for reckoning its
effectivity date but also a different mode of notice. Thus, a law may
prescribe that it shall be published elsewhere than in the Official Gazette.
Commonwealth Act No. 638, in my opinion, does not support the
proposition that for their effectivity, laws must be published in the
Official Gazette. The said law is simply "An Act to Provide for the
Uniform Publication and Distribution of the Official Gazette."
Conformably therewith, it authorizes the publication of the Official
Gazette, determines its frequency, provides for its sale and distribution,
and defines the authority of the Director of Printing in relation thereto. It
also enumerates what shall be published in the Official Gazette, among
them, "important legislative acts and resolutions of a public nature of the
Congress of the Philippines" and "all executive and administrative orders
and proclamations, except such as have no general applicability." It is
noteworthy that not all legislative acts are required to be published in the
Official Gazette but only "important" ones "of a public nature."
Moreover, the said law does not provide that publication in the Official
Gazette is essential for the effectivity of laws. This is as it should be, for
all statutes are equal and stand on the same footing. A law, especially an
earlier one of general application such as Commonwealth Act No. 638,
cannot nullify or restrict the operation of a subsequent statute that has a
provision of its own as to when and how it will take effect. Only a higher
law, which is the Constitution, can assume that role.
In fine, I concur in the majority decision to the extent that it requires
notice before laws become effective, for no person should be bound by a
law without notice. This is elementary fairness. However, I beg to
disagree insofar as it holds that such notice shall be by publication in the
Official Gazette.
Cuevas and Alampay, JJ., concur.

GUTIERREZ, Jr., J., concurring:

I concur insofar as publication is necessary but reserve my vote as to the
necessity of such publication being in the Official Gazette.

DE LA FUENTE, J., concurring:

I concur insofar as the opinion declares the unpublished decrees and
issuances of a public nature or general applicability ineffective, until due
publication thereof.

G.R. No. L-64279 April 30, 1984
ANSELMO L. PESIGAN and MARCELINO L.
PESIGAN, petitioners,
vs.
JUDGE DOMINGO MEDINA ANGELES, Regional Trial Court,
Caloocan City Branch 129, acting for REGIONAL TRIAL COURT
of Camarines Norte, now presided over by JUDGE NICANOR
ORIÑO, Daet Branch 40; DRA. BELLA S. MIRANDA, ARNULFO
V. ZENAROSA, ET AL., respondents.
Quiazon, De Guzman Makalintal and Barot for petitioners.
The Solicitor General for respondents.
AQUINO, J.:ñé+.£ªwph!1
At issue in this case is the enforceability, before publication in the
Official Gazette of June 14, 1982, of Presidential Executive Order No.
626-A dated October 25, 1980, providing for the confiscation and
forfeiture by the government of carabaos transported from one province
to another.
Anselmo L. Pesigan and Marcelo L. Pesigan, carabao dealers,
transported in an Isuzu ten-wheeler truck in the evening of April 2, 1982
twenty-six carabaos and a calf from Sipocot, Camarines Sur with Padre
Garcia, Batangas, as the destination.
They were provided with (1) a health certificate from the provincial
veterinarian of Camarines Sur, issued under the Revised Administrative
Code and Presidential Decree No. 533, the Anti-Cattle Rustling Law of
1974; (2) a permit to transport large cattle issued under the authority of
the provincial commander; and (3) three certificates of inspection, one
from the Constabulary command attesting that the carabaos were not
included in the list of lost, stolen and questionable animals; one from the
LIvestock inspector, Bureau of Animal Industry of Libmanan, Camarines
Sur and one from the mayor of Sipocot.
In spite of the permit to transport and the said four certificates, the
carabaos, while passing at Basud, Camarines Norte, were confiscated by
Lieutenant Arnulfo V. Zenarosa, the town's police station commander,
and by Doctor Bella S. Miranda, provincial veterinarian. The
confiscation was basis on the aforementioned Executive Order No. 626-
A which provides "that henceforth, no carabao, regardless of age, sex,
physical condition or purpose and no carabeef shall be transported from
one province to another. The carabaos or carabeef transported in
violation of this Executive Order as amended shall be subject
to confiscation and forfeiture by the government to be distributed ... to
deserving farmers through dispersal as the Director of Animal Industry
may see fit, in the case of carabaos" (78 OG 3144).
Doctor Miranda distributed the carabaos among twenty-five farmers of
Basud, and to a farmer from the Vinzons municipal nursery (Annex 1).
The Pesigans filed against Zenarosa and Doctor Miranda an action for
replevin for the recovery of the carabaos allegedly valued at P70,000 and
damages of P92,000. The replevin order could not be executed by the
sheriff. In his order of April 25, 1983 Judge Domingo Medina Angeles,
who heard the case at Daet and who was later transferred to Caloocan
City, dismissed the case for lack of cause of action.
The Pesigans appealed to this Court under Rule 45 of the Rules of Court
and section 25 of the Interim Rules and pursuant to Republic Act No.
5440, a 1968 law which superseded Rule 42 of the Rules of Court.
We hold that the said executive order should not be enforced against the
Pesigans on April 2, 1982 because, as already noted, it is a penal
regulation published more than two months later in the Official Gazette
dated June 14, 1982. It became effective only fifteen days thereafter as
provided in article 2 of the Civil Code and section 11 of the Revised
Administrative Code.
The word "laws" in article 2 (article 1 of the old Civil Code) includes
circulars and regulations which prescribe penalties. Publication is
necessary to apprise the public of the contents of the regulations and
make the said penalties binding on the persons affected thereby. (People
vs. Que Po Lay, 94 Phil. 640; Lim Hoa Ting vs. Central Bank of the
Phils., 104 Phil. 573; Balbuna vs. Secretary of Education, 110 Phil. 150.)
The Spanish Supreme Court ruled that "bajo la denominacion generica
de leyes, se comprenden tambien los reglamentos, Reales decretos,
Instrucciones, Circulares y Reales ordenes dictadas de conformidad con
las mismas por el Gobierno en uso de su potestad (1 Manresa, Codigo
Civil, 7th Ed., p. 146.)
Thus, in the Que Po Lay case, a person, convicted by the trial court of
having violated Central Bank Circular No. 20 and sentenced to six
months' imprisonment and to pay a fine of P1,000, was acquitted by this
Court because the circular was published in the Official Gazette three
months after his conviction. He was not bound by the circular.
That ruling applies to a violation of Executive Order No. 626-A because Makasiar, (Chairman), Concepcion, Jr., Guerrero, and Escolin, JJ.,
its confiscation and forfeiture provision or sanction makes it a penal concur.
statute. Justice and fairness dictate that the public must be informed of De Castro, J., took no part.
that provision by means of publication in the Gazette before violators of
the executive order can be bound thereby.
The cases of Police Commission vs. Bello, L-29960, January 30, 1971, Separate Opinions
37 SCRA 230 and Philippine Blooming Mills vs. Social Security System,
124 Phil. 499, cited by the respondents, do not involve the enforcement ABAD SANTOS, J., concurring:
of any penal regulation. The Pesigans are entitled to the return of their carabaos or the value of
Commonwealth Act No. 638 requires that all Presidential executive each carabao which is not returned for any reason. The Pesigans are also
orders having general applicability should be published in the Official entitled to a reasonable rental for each carabao from the twenty six
Gazette. It provides that "every order or document which shag prescribe farmers who used them. The farmers should not enrich themselves at the
a penalty shall be deemed to have general applicability and legal effect." expense of the Pesigans.
Indeed, the practice has always been to publish executive orders in the
Gazette. Section 551 of the Revised Administrative Code provides that
even bureau "regulations and orders shall become effective only when
approved by the Department Head and published in the Official Gazette
or otherwise publicly promulgated". (See Commissioner of Civil Service
vs. Cruz, 122 Phil. 1015.)
In the instant case, the livestock inspector and the provincial veterinarian
of Camarines Norte and the head of the Public Affairs Office of the
Ministry of Agriculture were unaware of Executive Order No. 626-A.
The Pesigans could not have been expected to be cognizant of such an
executive order.
It results that they have a cause of action for the recovery of the
carabaos. The summary confiscation was not in order. The recipients of
the carabaos should return them to the Pesigans. However, they cannot
transport the carabaos to Batangas because they are now bound by the
said executive order. Neither can they recover damages. Doctor Miranda
and Zenarosa acted in good faith in ordering the forfeiture and dispersal
of the carabaos.
WHEREFORE, the trial court's order of dismissal and the confiscation
and dispersal of the carabaos are reversed and set aside. Respondents
Miranda and Zenarosa are ordered to restore the carabaos, with the
requisite documents, to the petitioners, who as owners are entitled to
possess the same, with the right to dispose of them in Basud or Sipocot,
Camarines Sur. No costs.
SO ORDERED.1äwphï1.ñët

G.R. No. 448 September 20, 1901
THE UNITED STATES, complainant-appellee,
vs.
PHILIP K. SWEET, defendant-appellant.
Theofilus B. Steele, for appellant.
Office of the Solicitor-General Araneta, for appellee.
LADD, J.:
The offense charged in the complaint is punishable under the Penal Code
now in force by arresto mayor and a fine of from 325 to 3,250 pesetas.
(Art. 418.) By Act No. 136 of the United States Philippine Commission,
section 56 (6), Courts of First Instance are given original jurisdiction "in
all criminal cases in which a penalty of more than six months'
imprisonment or a fine exceeding one hundred dollars may be imposed."
The offense was therefore cognizable by the court below unless the fact
that the appellant was at the time of its alleged commission an employee
of the United States military authorities in the Philippine Islands, and the
further fact that the person upon whom it is alleged to have been
committed was a prisoner of war in the custody of such authorities, are
sufficient to deprive it of jurisdiction. We must assume that both these
facts are true, as found, either upon sufficient evidence or upon the
admissions of the prosecuting attorney, by the court below.
Setting aside the claim that the appellant was "acting in the line of duty"
at the time the alleged offense was committed, which is not supported by
the findings or by any evidence which appears in the record, the
contention that the court was without jurisdiction, as we understand it, is
reducible to two propositions: First, that an assault committed by a
soldier or military employee upon a prisoner of war is not an offense
under the Penal Code; and second, that if it is an offense under the Code,
nevertheless the military character sustained by the person charged with
the offense at the time of its commission exempts him from the ordinary
jurisdiction of the civil tribunals.
As to the first proposition, it is true, as pointed out by counsel, that an
assault of the character charged in the complaint committed in time of
war by a military person upon a prisoner of war is punishable as an
offense under the Spanish Code of Military Justice (art. 232), and it is
also true that under the provisions of the same Code (arts. 4, 5) the
military tribunals have, with certain exceptions which it is not material to
state, exclusive cognizance of all offenses, whether of a purely military
nature or otherwise, committed by military persons. But the fact that the
acts charged in the complaint would be punishable as an offense under
the Spanish military legislation does not render them any less an offense
under the article of the Penal Code above cited. There is nothing in the
language of that article to indicate that it does not apply to all persons
within the territorial jurisdiction of the law. Under articles 4 and 5 of the
Code of Military Justice above cited a military person could not be
brought to trial before a civil tribunal for an assault upon a prisoner of
war, but by the commission of that offense he incurred a criminal
responsibility for which he was amenable only to the military
jurisdiction. That criminal responsibility, however, arose from an
infraction of the general penal laws, although the same acts, viewed in
another aspect, might also, if committed in time of war, constitute an
infraction of the military code. We are unable to see how these
provisions of the Spanish Military Code, no longer in force here and
which indeed never had any application to the Army of the United States,
can in any possible view have the effect claimed for them by counsel for
the appellant.
The second question is, Does the fact that the alleged offense was
committed by an employee of the United States military authorities
deprive the court of jurisdiction? We have been cited to no provision in
the legislation of Congress, and to none in the local legislation, which
has the effect of limiting, as respects employees of the United States
military establishment, the general jurisdiction conferred upon the Courts
of First Instance by Act No. 136 of the United States Philippine
Commission above cited, and we are not aware of the existence of any
such provision. The case is therefore open to the application of the
general principle that the jurisdiction of the civil tribunals is unaffected
by the military or other special character of the person brought before
them for trial, a principle firmly established in the law of England and
America and which must, we think, prevail under any system of
jurisprudence unless controlled by express legislation to the contrary.
(United States vs. Clark, 31 Fed. Rep., 710.) The appellant's claim that
the acts alleged to constitute the offense were performed by him in the
execution of the orders of his military superiors may, if true, be available
by way of defense upon the merits in the trial in the court below, but can
not under this principle affect the right of that court to take jurisdiction of
the case.
Whether under a similar state of facts to that which appears in this case a above indicated, but should cease to exercise jurisdiction upon such facts
court of one of the United States would have jurisdiction to try the appearing.
offender against the State laws (see In re Fair, 100 Fed. Rep., 149), it is
not necessary to consider. The present is not a case where the courts of
one government are attempting to exercise jurisdiction over the military
agents or employees of another and distinct government, because the
court asserting jurisdiction here derives its existence and powers from
the same Government under the authority of which the acts alleged to
constitute the offense are claimed to have been performed.
It may be proper to add that there is no actual conflict between the two
jurisdictions in the present case nor any claim of jurisdiction on the part
of the military tribunals. On the contrary it appears from the findings of
the court below that the complaint was entered by order of the
commanding general of the Division of the Philippines, a fact not
important, perhaps, as regards the technical question of jurisdiction, but
which relieves the case from any practical embarrassment which might
result from a claim on the part of the military tribunals to exclusive
cognizance of the offense.
The order of the court below is affirmed with costs to the appellant.
Arellano, C.J., Torres, Willard, and Mapa, JJ., concur.

Separate Opinions
COOPER, J., concurring:
I concur in the result of the decision of the court, but am not prepared to
assent to all that is said in the opinion. An offense charged against a
military officer, acting under the order of his superior, unless the
illegality of the order is so clearly shown on its face that a man of
ordinary sense and understanding would know when he heard it read or
given that the order was illegal, and when the alleged criminal act was
done within the scope of his authority as such officer, in good faith and
without malice, and where the offense is against the military law — that
is, such law as relates to the discipline and efficiency of the Army, or
rules and orders promulgated by the Secretary of War to aid military
officers in the proper enforcement of the custody of prisoners — is not
within the jurisdiction of the courts of the Civil Government. (In re Fair,
100 Fed. Rep., 149.) The civil courts, however, may examine the
evidence for the purpose of determining whether the act alleged to be
criminal was done in the performance of duty under the circumstances
G.R. No. 125865 January 28, 2000
JEFFREY LIANG (HUEFENG), petitioner,
vs.
PEOPLE OF THE PHILIPPINES, respondent.
YNARES-SANTIAGO, J.:
Petitioner is an economist working with the Asian Development Bank
(ADB). Sometime in 1994, for allegedly uttering defamatory words
against fellow ADB worker Joyce Cabal, he was charged before the
Metropolitan Trial Court (MeTC) of Mandaluyong City with two counts
of grave oral defamation docketed as Criminal Cases Nos. 53170 and
53171. Petitioner was arrested by virtue of a warrant issued by the
MeTC. After fixing petitioner's bail at P2,400.00 per criminal charge, the
MeTC released him to the custody of the Security Officer of ADB. The
next day, the MeTC judge received an "office of protocol" from the
Department of Foreign Affairs (DFA) stating that petitioner is covered
by immunity from legal process under Section 45 of the Agreement
between the ADB and the Philippine Government regarding the
Headquarters of the ADB (hereinafter Agreement) in the country. Based
on the said protocol communication that petitioner is immune from suit,
the MeTC judge without notice to the prosecution dismissed the two
criminal cases. The latter filed a motion for reconsideration which was
opposed by the DFA. When its motion was denied, the prosecution filed
a petition for certiorari and mandamus with the Regional Trial Court
(RTC) of Pasig City which set aside the MeTC rulings and ordered the
latter court to enforce the warrant of arrest it earlier issued. After the
motion for reconsideration was denied, petitioner elevated the case to
this Court viaa petition for review arguing that he is covered by
immunity under the Agreement and that no preliminary investigation
was held before the criminal cases were filed in court.1âwphi1.nêt
The petition is not impressed with merit.
First, courts cannot blindly adhere and take on its face the
communication from the DFA that petitioner is covered by any
immunity. The DFA's determination that a certain person is covered by
immunity is only preliminary which has no binding effect in courts. In
receiving ex-parte the DFA's advice and in motu propio dismissing the
two criminal cases without notice to the prosecution, the latter's right to
due process was violated. It should be noted that due process is a right of
the accused as much as it is of the prosecution. The needed inquiry in
what capacity petitioner was acting at the time of the alleged utterances
requires for its resolution evidentiary basis that has yet to be presented at
the proper time.1 At any rate, it has been ruled that the mere invocation of
the immunity clause does not ipso facto result in the dropping of the
charges.2
Second, under Section 45 of the Agreement which provides:
Officers and staff of the Bank including for the purpose of this
Article experts and consultants performing missions for the Bank
shall enjoy the following privileges and immunities:
a.) immunity from legal process with respect to acts
performed by them in their official capacity except when
the Bank waives the immunity.
the immunity mentioned therein is not absolute, but subject to the
exception that the acts was done in "official capacity." It is therefore
necessary to determine if petitioner's case falls within the ambit of
Section 45(a). Thus, the prosecution should have been given the chance
to rebut the DFA protocol and it must be accorded the opportunity to
present its controverting evidence, should it so desire.
Third, slandering a person could not possibly be covered by the
immunity agreement because our laws do not allow the commission of a
crime, such as defamation, in the name of official duty.3 The imputation
of theft is ultra vires and cannot be part of official functions. It is well-
settled principle of law that a public official may be liable in his personal
private capacity for whatever damage he may have caused by his act
done with malice or in bad faith or beyond the scope of his authority or
jurisdiction.4 It appears that even the government's chief legal counsel,
the Solicitor General, does not support the stand taken by petitioner and
that of the DFA.
Fourth, under the Vienna Convention on Diplomatic Relations, a
diplomatic agent, assuming petitioner is such, enjoys immunity from
criminal jurisdiction of the receiving state except in the case of an action
relating to any professional or commercial activity exercised by the
diplomatic agent in the receiving state outside his official functions.5 As
already mentioned above, the commission of a crime is not part of
official duty.
Finally, on the contention that there was no preliminary investigation
conducted, suffice it to say that preliminary investigation is not a matter
of right in cases cognizable by the MeTC such as the one at bar.6 Being
purely a statutory right, preliminary investigation may be invoked only
when specifically granted by law.7 The rule on the criminal procedure is
clear that no preliminary investigation is required in cases falling within
the jurisdiction of the MeTC.8 Besides the absence of preliminary
investigation does not affect the court's jurisdiction nor does it impair the
validity of the information or otherwise render it defective.9
WHEREFORE, the petition is DENIED.
SO ORDERED.1âwphi1.nêt
Davide, Jr., C.J., Puno, Kapunan and Pardo, JJ., concur.

Footnotes
1
See United States v. Guinto, 182 SCRA 644 [1990].
2
Chavez v. Sandiganbayan, 193 SCRA 282 [1991].
3
K.H. Wylie v. Rarang, 209 SCRA 357, 368 [1992].
4
Shauf v. CA, 191 SCRA 713 [1990]; Animos v. Phil. Veterans
Affairs Office, 174 SCRA 214 [1989]; Dumlao v. CA, 114
SCRA 247 [1982].
5
Sec. 31, 1 (c); See also Minucher v. CA, 214 SCRA 242 [1992].
6
See Del Rosario, Jr. v. Bartolome, 270 SCRA 645 [1997].
7
People v. Abejuela, 38 SCRA 324 [1971].
8
Sec. 1, Rule 112, Rules of Criminal Procedure.
9
People v. Gomez, 117 SCRA 72 [1982]; People v. Casiano, 1
SCRA 478 [1961].
G.R. No. L-13005 October 10, 1917
THE UNITED STATES, plaintiff-appellee,
vs.
AH SING, defendant-appellant.
Antonio Sanz for appellant.
Acting Attorney-General Paredes for appellee.
MALCOLM, J.:
This is an appeal from a judgment of the Court of First Instance of Cebu
finding the defendant guilty of a violation of section 4 of Act No. 2381
(the Opium Law), and sentencing him to two years imprisonment, to pay
a fine of P300 or to suffer subsidiary imprisonment in case of
insolvency, and to pay the costs.
The following facts are fully proven: The defendant is a subject of China
employed as a fireman on the steamship Shun Chang. The Shun Chang is
a foreign steamer which arrived at the port of Cebu on April 25, 1917,
after a voyage direct from the port of Saigon. The defendant bought eight
cans of opium in Saigon, brought them on board the steamship Shun
Chang, and had them in his possession during the trip from Saigon to
Cebu. When the steamer anchored in the port of Cebu on April 25, 1917,
the authorities on making a search found the eight cans of opium above
mentioned hidden in the ashes below the boiler of the steamer's engine.
The defendant confessed that he was the owner of this opium, and that he
had purchased it in Saigon. He did not confess, however, as to his
purpose in buying the opium. He did not say that it was his intention to
import the prohibited drug into the Philippine Islands. No other evidence
direct or indirect, to show that the intention of the accused was to import
illegally this opium into the Philippine Islands, was introduced.
Has the crime of illegal importation of opium into the Philippine Islands
been proven?
Two decisions of this Court are cited in the judgment of the trial court,
but with the intimation that there exists inconsistently between the
doctrines laid down in the two cases. However, neither decision is
directly a precedent on the facts before us.
In the case of United States vs. Look Chaw ([1910], 18 Phil., 573), in the
opinion handed down by the Chief Justice, it is found —
That, although the mere possession of a thing of prohibited use in
these Islands, aboard a foreign vessel in transit, in any of their
ports, does not, as a general rule, constitute a crime triable by
the courts of this country, on account of such vessel being
considered as an extension of its own nationality, the same rule
does no apply when the article, whose use is prohibited within the
Philippine Islands, in the present case a can of opium, is landed
from the vessel upon Philippine soil, thus committing an open
violation of the laws of the land, with respect to which, as it is a
violation of the penal law in force at the place of the commission
of the crime, only the court established in the said place itself has
competent jurisdiction, in the absence of an agreement under an
international treaty.1awphil.net
A marked difference between the facts in the Look Chaw case and the
facts in the present instance is readily observable. In the Look Chaw
case, the charge case the illegal possession and sale of opium — in the
present case the charge as illegal importation of opium; in the Look
Chaw case the foreign vessel was in transit — in the present case the
foreign vessel was not in transit; in the Look Chaw case the opium was
landed from the vessel upon Philippine soil — in the present case of
United States vs. Jose ([1916], 34 Phil., 840), the main point, and the one
on which resolution turned, was that in a prosecution based on the illegal
importation of opium or other prohibited drug, the Government must
prove, or offer evidence sufficient to raise a presumption, that the vessel
from which the drug is discharged came into Philippine waters from
a foreign country with the drug on board. In the Jose case, the defendants
were acquitted because it was not proved that the opium was imported
from a foreign country; in the present case there is no question but what
the opium came from Saigon to Cebu. However, in the opinion in the
Jose case, we find the following which may be obiter dicta, but which at
least is interesting as showing the view of the writer of the opinion:
The importation was complete, to say the least, when the ship
carrying it anchored in Subic Bay. It was not necessary that the
opium discharged or that it be taken from the ship. It was
sufficient that the opium was brought into the waters of the
Philippine Islands on a boat destined for a Philippine port and
which subsequently anchored in a port of the Philippine Islands
with intent to discharge its cargo.
Resolving whatever doubt was exist as to the authority of the views just
quoted, we return to an examination of the applicable provisions of the
law. It is to be noted that section 4 of Act No. 2381 begins, "Any person
who shall unlawfully import or bring any prohibited drug into the
Philippine Islands." "Import" and "bring" are synonymous terms. The
Federal Courts of the United States have held that the mere act of going
into a port, without breaking bulk, is prima facie evidence of
importation. (The Mary [U. S.], 16 Fed. Cas., 932, 933.) And again, the
importation is not the making entry of goods at the custom house, but
merely the bringing them into port; and the importation is complete
before entry of the Custom House. (U. S. vs. Lyman [U. S.], 26, Fed.
Cas., 1024, 1028; Perots vs. U. S., 19 Fed. Cas., 258.) As applied to the
Opium Law, we expressly hold that any person unlawfully imports or
brings any prohibited drug into the Philippine Islands, when the
prohibited drug is found under this person's control on a vessel which has
come direct from a foreign country and is within the jurisdictional limits
of the Philippine Islands. In such case, a person is guilty of illegal
importation of the drug unless contrary circumstances exist or the
defense proves otherwise. Applied to the facts herein, it would be absurb
to think that the accused was merely carrying opium back and forth
between Saigon and Cebu for the mere pleasure of so doing. It would
likewise be impossible to conceive that the accused needed so large an
amount of opium for his personal use. No better explanation being
possible, the logical deduction is that the defendant intended this opium
to be brought into the Philippine Islands. We accordingly find that there
was illegal importation of opium from a foreign country into the
Philippine Islands. To anticipate any possible misunderstanding, let it be
said that these statements do not relate to foreign vessels in transit, a
situation not present.
The defendant and appellant, having been proved guilty beyond a
reasonable doubt as charged and the sentence of the trial court being
within the limits provided by law, it results that the judgment must be
affirmed with the costs of this instance against the appellant. So ordered.
Arellano, C.J., Johnson, Carson, Araullo and Street, JJ., concur.
G.R. No. L-1988 February 24, 1948
JESUS MIQUIABAS, petitioner,
vs.
COMMANDING GENERAL, PHILIPPINE-RYUKYUS
COMMAND, UNITED STATES ARMY, respondents.
Lorenzo Sumulong and Esteban P. Garcia for petitioner.
J. A. Wolfson for respondent.
MORAN, C.J.:
This is a petition for a writ of habeas corpus filed by Jesus Miquiabas
against the Commanding General Philippine-Ryukyus Command, United
States Army, who is alleged to have petitioner under custody and to have
appointed a General Court-Martial to try petitioner in connection with an
offense over which the said court has no jurisdiction.
Petitioner is a Filipino citizen and a civilian employee of the United
States Army in the Philippines, who has been charged with disposing in
the Port of Manila Area of things belonging to the United States Army,
in violation of the 94th Article of War of the United States. He has been
arrested for that reason and a General Court-Martial appointed by
respondent tried and found him guilty and sentenced him to 15 years
imprisonment. This sentence, however, is not yet final for it is still
subject to review.
It may be stated as a rule that the Philippines, being a sovereign nation,
has jurisdiction over all offenses committed within its territory, but it
may, by treaty or by agreement, consent that the United States or any
other foreign nation, shall exercise jurisdiction over certain offenses
committed within certain portions of said territory. On March 11, 1947,
the Republic of the Philippines and the Government of the United States
of America, entered into an agreement concerning military bases, and
Article XIII thereof is as follows:
JURISDICTION
1. The Philippines consents that the United States shall have the
right to exercise jurisdiction over the following offenses:
(a) Any offense committed by any person within any base
except where the offender and offended parties are both
Philippine citizens (not members of the armed forces of
the United States on active duty) or the offense is against
the security of the Philippines;
(b) Any offense committed outside the bases by any
member of the armed forces of the United States in which
the offended party is also a member of the armed forces of
the United States; and
(c) Any offense committed outside the bases by any
member of the armed forces of the United States against
the security of the United States.
2. The Philippines shall have the right to exercise jurisdiction
over all other offenses committed outside the bases by any
member of the armed forces of the United States.
3. Whenever for special reasons the United States may desire not
to exercise the jurisdiction reserved to it in paragraphs 1 and 6 of
this Article, the officer holding the offender in custody shall so
notify the fiscal (prosecuting attorney) of the city or province in
which the offense has been committed within ten days after his
arrest, and in such case the Philippines shall exercise jurisdiction.
4. Whenever for special reasons the Philippines may desire not to
exercise the jurisdiction reserved to it in paragraph 2 of this
Article, the fiscal (prosecuting attorney) of the city or province
where the offense has been committed shall so notify the officer
holding the offender in custody within ten days after his arrest,
and in such a case the United States shall be free to exercise
jurisdiction. If any offense falling under paragraph 2 of this
article is committed by any member of the armed forces of the
United States.
(a) While engaged in the actual performance of a specific
military duty, or
(b) during a period of national emergency declared by
either Government and the fiscal (prosecuting attorney) so
finds from the evidence, he shall immediately notify the
officer holding the offender in custody that the United
States is free to exercise jurisdiction. In the event the
fiscal (prosecuting attorney) finds that the offense was not
committed in the actual performance of a specific military
duty, the offender's commanding officer shall have the
right to appeal from such finding to the Secretary of
Justice within ten days from the receipt of the decision of
the fiscal and the decision of the Secretary of Justice shall
be final.
5. In all cases over which the Philippines exercises jurisdiction
the custody of the accused, pending trial and final judgment, shall
 be entrusted without delay to the commanding officer of the
nearest base, who shall acknowledge in writing that such accused
has been delivered to him for custody pending trial in a
competent court of the Philippines and that he will be held ready
to appear and will be produced before said court when required
by it. The commanding officer shall be furnished by the fiscal
(prosecuting attorney) with a copy of the information against the
accused upon the filing of the original in the competent court.
6. Notwithstanding the foregoing provisions, it is naturally agreed
that in time of war the United States shall have the right to
exercise exclusive jurisdiction over any offenses which may be
committed by members of the armed forces of the United States
in the Philippines.
7. The United States agrees that it will not grant asylum in any of
the bases to any person fleeing from the lawful jurisdiction of the
Philippines. Should such person be found in any base, he will be
surrendered on demand to the competent authorities of the
Philippines.
8. In every case in which jurisdiction over an offense is exercised
by the United States, the offended party may institute a separate
civil action against the offender in the proper court of the
Philippines to enforce the civil liability which under the laws of
the Philippines may arise from the offense.
Under paragraph 1 (a), the General Court-Martial would have
jurisdiction over the criminal case against petitioner if the offense had
been committed within a base. Under paragraph 1 (b), if the offense had
been committed outside a base, still the General Court-Martial would
have jurisdiction if the offense had been committed by a "member of the
armed forces of the United States" there being no question that the
offended party in this case is the United States. It is not necessary
therefore, to consider whether the offense is against "the security of the
United States" under paragraph 1 (c), or whether petitioner committed it
in "the actual performance of a specific military duty" or in time of a
declared "national emergency" under paragraph 4, or whether we are still
in a state of war under paragraph 6, for in all these instances the military
jurisdiction depends also upon whether the offender is a member of the
armed forces of the United States. We shall then determine in this case
(1) whether the offense has been committed within or without a base,
and, in the second instance, (2) whether the offender is or is not a
member of the armed forces of the United States.
As to the first question, Article XXVI of the Agreement provides that
"bases are those area named in Annex A and Annex B and such
additional areas as may be acquired for military purposes pursuant to the
terms of this Agreement." Among the areas specified in Annexes A and
B, there is none that has reference to the Port Area of Manila where the
offense has allegedly been committed. On the contrary, it appears in
Annex A that "army communications system" is included, but with "the
deletion of all stations in the Port of Manila Area."
Paragraph 2 of Article XXI is invoked by respondent. The whole article
is as follows:
TEMPORARY INSTALLATIONS
1. It is mutually agreed that the United States shall retain the right
to occupy temporary quarters and installations now existing
outside the bases mentioned in Annex A and Annex B, for such
reasonable time, not exceeding two years, as may be necessary to
develop adequate facilities within the bases for the United States
armed forces. If circumstances require an extension of time, such
a period will be fixed by mutual agreement of the two
Governments; but such extension shall not apply to the existing
temporary quarters and installations within the limits of the City
of Manila and shall in no case exceed a period of three years.
2. Notwithstanding the provisions of the preceding paragraph, the
Port of Manila reservation with boundaries as of 1941 will be
available for use to the United States armed forces until such time
as other arrangements can be made for the supply of the bases by
mutual agreement of the two Governments.
3. The terms of this agreement pertaining to bases shall be
applicable to temporary quarters and installations referred to in
paragraph 1 of this article while they are so occupied by the
armed forces of the United States; provided, that offenses
committed within the temporary quarters and installations located
within the present limits of the City of Manila shall not be
considered as offenses within the bases but shall be governed by
the provisions of Article XIII, paragraphs 2 and 4, except that the
election not to exercise the jurisdiction reserved to the
Philippines shall be made by the Secretary of Justice. It is agreed
that the United States shall have full use and full control of all
 these quarters and installations while they are occupied by the
armed forces of the United States, including the exercise of such
measures as may be necessary to police said quarters for the
security of the personnel and property therein.
The subject matter of this article, as indicated by its heading, is
"Temporary Installations." Paragraph 1 refers to temporary quarters and
installations existing outside the bases specified in Annex A and Annex
B, which may be retained by the United States armed forces for such
reasonable time as may be necessary not exceeding two years in
duration, extendible fro not more than three years, the extension not
being applicable to existing temporary quarters and installations within
the limits of the City of Manila.
Paragraph 2, of Article XXI, refers to the Port of Manila Reservation,
which will be available for use to the United States armed forces, also as
a temporary quarters and installations, its temporariness not being for a
definite period of time, but "until such time as other arrangements can be
made for supply of the bases by mutual agreement of the two
Governments." There is in paragraph 2 absolutely nothing that may be
construed as placing the Port of Manila Reservation in the category of a
permanent base.
Paragraph 3, of Article XXI, provides "that offenses committed within
the temporary quarters and installations located within the present limits
of the City of Manila shall not be considered as offenses within the bases
but shall be governed by the provisions of Article XIII, paragraphs 2 and
4." Therefore, the offense at bar cannot be considered as committed
within, but without, a base, since it has been committed in the Port of
Manila Area, which is not one of the bases mentioned in Annexes A and
B to the Agreement, and is merely temporary quarters located within the
present limits of the City of Manila.
The next inquiry is whether or not the offender may be considered as a
member of the armed forces of the United States under Article XIII,
paragraph 1 (b). As above stated, petitioner is a Filipino citizen and a
civilian employee of the United States Army in the Philippines. Under
the terms of the Agreement, a civilian employee cannot be considered as
a member of the armed forces of the United States. Articles XI, XVI and
XVIII of the Agreement make mention of civilian employees separately
from members of the armed forces of the United States, which is a
conclusive indication that under said Agreement armed forces do not
include civilian employees.
Respondent invokes Articles II of the Articles of War of the United
States, which enumerates, among the persons subject to military law,
persons accompanying or serving with the armies of the United States.
But this case should be decided not under the Articles of War, but under
the terms of the Base Agreement between the United States and the
Philippines. And not because a person is subject to military law under
the Articles of War does he become, for that reason alone, a member of
the armed forces under the Base Agreement. And even under the Articles
of War, the mere fact that a civilian employee is in the service of the
United States Army does not make him a member of the armed forces of
the United States. Otherwise, it would have been necessary for said
Article to enumerate civilian employees separately from members of the
armed forces of the United States.
Respondent maintains that petitioner has no cause of action because the
Secretary of Justice had not notified the officer holding the petitioner in
custody whether or not the Philippines desired to retain jurisdiction
under Article XXI, paragraph 3, of the Military Base Agreement. It is
sufficient to state in this connection that in cases like the present where
the offender is a civilian employee and not a member of the Unites States
armed forces, no waiver can be made either by the prosecuting attorney
of by the Secretary of Justice, under paragraphs 2 and 4 of Article XIII in
connection with paragraph 3 of Article XXI, of the Agreement.
We are, therefore, of the opinion and so hold, that the General Court-
Martial appointed by respondent has no jurisdiction to try petitioner for
the offense allegedly committed by him and, consequently, the judgment
rendered by said court sentencing the petitioner to 15 years'
imprisonment is null and void for lack of jurisdiction.
It is ordered that petitioner be released immediately by respondent
without prejudice to any criminal action which may be instituted in the
proper court of the Philippines.
Let a copy of this decision be sent immediately to the Honorable,
Secretary of Justice.
Paras, Feria, Pablo, Hilado, Bengzon, Briones, Padilla, and Tuason,
JJ, concur.
Separate Opinions
PERFECTO, J., concurring:
One of the attributes of national sovereignty is the power to try and
punish offenses, criminal and otherwise. The exercise of that power is,
by virtue of express provision of our Constitution, vested in the Supreme
Court and in inferior courts established by law. (Sec. 1, Art. VIII) The
fundamental law refers to inferior courts created by an enactment of a
national legislature, Assembly or Congress, not to foreign courts martial,
created by foreign countries.
All this is in accordance with elemental principles of political law.
If petitioner is liable for a criminal offense, according to our laws, the
jurisdiction to try him belongs to a justice of the peace or municipal
court or to a court of first instance.
The jurisdiction can be transferred to other courts by virtue of a law that
may be enacted to said effect. The law, to be effective, must not violate
the constitutional Bill of Rights, among them the guarantee of fair trial in
favor of an accused, the equal protection of the law, the due process of
law, the guarantees against illegal detentions and searches, and others.
Petitioner is a Filipino citizen and a civilian employee of the U. S. Army,
rendering services in the Philippines. He attacks the power of the
Commanding General, Philippine Ryukus Command, U.S. Army, to
have him under military custody and tried by a general court-martial of
said army. Respondent invokes, in opposing the petition, the provisions
of the agreement on military Bases entered into by the Republic of the
Philippines and the government of the United States of America on
March 14, 1947.
The agreement appears to be a concession to two weaknesses: the
American distrust in Philippine tribunals and Filipino yielding to much
distrust; on one hand, undisguised prejudice, — national, racial, or
otherwise, — on the other, meek submission to the natural consequences
of an unreasonable prejudice; on one side, the haughtiness of a powerful
nation, proud in the consciousness of its power, on the other, the moral
surrender of a new nation, not yet so sure in the exercise to their fullness
of sovereign prerogatives. Extra-territoriality is wrong per se.
It is, therefore, assailable on two opposing fronts. On constitutional
ground, it is hardly defensible.
The Bill of Rights has been embodied in the Constitution for the
protection of all human beings within the territorial jurisdiction of the
Philippines. All persons covered by the waivers made in the agreement,
whether Americans or Filipinos, whether citizens or aliens, are denied
the constitutional guarantee of the equal protection of the law. Their
fundamental rights are safeguarded by the Constitution, and the
agreement places them outside the Constitution.
Our conclusion is, therefore, that the agreement in question, so far as it
stipulates waiver of the jurisdiction of our courts of justice on the class
of persons mentioned therein, is null and void, being in open conflict
with clear provisions of our fundamental law.
Upon this ground, petitioner is entitled to be released by respondent and
by the court martial which tried him.
Even in the erroneous hypothesis that the waiver clauses of the
agreement are valid, we concur in the reasoning of the Chief Justice in
support of the position that petitioner is not comprehended in said waiver
clauses. With more reason, respondent has no power nor jurisdiction to
hold petitioner in confinement, nor to have him tried by a U.S. army
court-martial.
Notice must be served to the whole world that, in rendering the decision
in this case, the Supreme Court, in the fullness of judicial maturity, acted
not as a mere agency of national sovereignty, but in the consciousness
that the administration of justice, more than national, is a human
function, untethered by the narrow provincialism of the points of view of
a country, but founded on the universal and permanent interests of
mankind, as expressed in principles with equal value regardless of the
hemisphere of the latitude where a person may be placed.
There is a suggestion that, because it has not found articulate expression
in this case, it should be ignored, when it is boiling in many minds, and it
is that respondent, shielded by his military power and the overwhelming
national power of his country, may ignore our decision, and we will be
powerless to enforce it. The fact that respondent appeared before us,
through counsel, without any reservation, answers the suggestion, and
gives full justice to the sense of moral values of the respondent.
Besides, in the present state of international affairs, when America is
engaged in the noble task of making a reality the ideal of one world, it
can not compromise its moral leadership by any showing of reckless
disregard to the decision of a court of justice. The cry that there must be
one world or none can receive but one satisfactory answer; the reality of
world justice. Only in justice hinges the salvation of humanity. Only
justice can give real peace and provide the basis for contentment and
happiness.
We concur in the decision, ordering the immediate release of the
petitioner.
G.R. No. L-30026 January 30, 1971
MARIO GUMABON, BLAS BAGOLBAGOL, GAUDENCIO
AGAPITO, EPIFANIO PADUA and PATERNO
PALMARES, petitioners,
vs.
THE DIRECTOR OF THE BUREAU OF PRISONS, respondent.
Jose W. Diokno for petitioners.
Office of the Solicitor General Felix V. Makasiar, Assistant Solicitor
General Antonio A. Torres and Solicitor Eduardo C. Abaya for
respondent.
FERNANDO, J.:
Habeas corpus, the great writ of liberty, is relied upon by petitioners, five
in number, for their release from imprisonment. Meted out life terms for
the complex crime of rebellion with murder and other crimes, they would
invoke the People v. Hernandez1 doctrine, negating the existence of such
an offense, a ruling that unfortunately for them was not handed down
until after their convictions had become final. Nor is this the first
instance, a proceeding of this character was instituted, as in Pomeroy v.
Director of Prisons,2 likewise a petition for habeas corpus, a similar
question was presented. The answer given was in the negative.
Petitioners plead for a new look on the matter. They would premise their
stand on the denial of equal protection if their plea would not be granted.
Moreover they did invoke the codal provision that judicial decisions
shall form part of the legal system of the Philippines,3 necessarily
resulting in the conclusion that the Hernandez decision once promulgated
calls for a retroactive effect under the explicit mandate of the Revised
Penal Code as to penal laws having such character even if at the time of
their application a final sentence has been rendered "and the convict is
serving the same."4 These arguments carry considerable persuasion.
Accordingly we find for petitioners, without going so far as to overrule
Pomeroy.
Petitioner Mario Gumabon, after pleading guilty, was sentenced on May
5, 1953 to suffer reclusion perpetua for the complex crime of rebellion
with multiple murder, robbery, arson and kidnapping. Petitioners
Gaudencio Agapito, Paterno Palmares and Epifanio Padua, likewise
pleaded guilty to the complex crime of rebellion with multiple murder
and other offenses, and were similarly made to suffer the same penalty in
decisions rendered, as to the first two, on March 8, 1954 and, as to the
third, on December 15, 1955. The last petitioner, Blas Bagolbagol, stood
trial also for the complex crime of rebellion with multiple murder and
other offenses and on January 12, 1954 penalized with reclusion
perpetua. Each of the petitioners has been since then imprisoned by
virtue of the above convictions. Each of them has served more than 13
years.5
Subsequently, in People v. Hernandez,6 as above noted, this Court ruled
that the information against the accused in that case for rebellion
complexed with murder, arson and robbery was not warranted under
Article 134 of the Revised Penal Code, there being no such complex
offense.7 In the recently-decided case of People vs. Lava,8 we expressly
reaffirmed the ruling in the Hernandez case rejecting the plea of the
Solicitor General for the abandonment of such doctrine. It is the
contention of each of the petitioners that he has served, in the light of the
above, more than the maximum penalty that could have been imposed
upon him. He is thus entitled to freedom, his continued detention being
illegal.9
The fear that the Pomeroy ruling stands as an obstacle to their release on
a habeas corpus proceeding prompted petitioners, as had been
mentioned, to ask that it be appraised anew and, if necessary, discarded.
We can resolve the present petition without doing so. The plea there
made was unconvincing, there being a failure to invoke the contentions
now pressed vigorously by their counsel, Attorney Jose W. Diokno, as to
the existence of a denial of a constitutional right that would suffice to
raise a serious jurisdictional question and the retroactive effect to be
given a judicial decision favorable to one already sentenced to a final
judgment under Art. 22 of the Revised Penal Code. To repeat, these two
grounds carry weight. We have to grant this petition.
1. The fundamental issue, to repeat, is the availability of the writ of
habeas corpus under the circumstances disclosed. Its latitudinarian scope
to assure that illegality of restraint and detention be avoided is one of the
truisms of the law. It is not known as the writ of liberty for nothing. The
writ imposes on judges the grave responsibility of ascertaining whether
there is any legal justification for a deprivation of physical freedom.
Unless there be such a showing, the confinement must thereby cease. If
there be a valid sentence it cannot, even for a moment, be extended
beyond the period provided for by law. Any deviation from the legal
norms call for the termination of the imprisonment.
Rightly then could Chafee refer to the writ as "the most important human
rights provision" in the fundamental law. 10Nor is such praise unique.
Cooley spoke of it as "one of the principal safeguards to personal
liberty." 11 For Willoughby, it is "the greatest of the safeguards erected
by the civil law against arbitrary and illegal imprisonment by
whomsoever detention may be exercised or ordered." 12 Burdick echoed
a similar sentiment, referring to it as "one of the most important
bulwarks of liberty." 13 Fraenkel made it unanimous, for to him, "without
it much else would be of no avail." 14 Thereby the rule of law is assured.
A full awareness of the potentialities of the writ of habeas corpus in the
defense of liberty coupled with its limitations may be detected in the
opinions of former Chief Justices Arellano, 15 Avanceña, 16 Abad
Santos, 17 Paras, 18Bengzon, 19 and the present Chief Justice. 20 It fell to
Justice Malcolm's lot, however to emphasize quite a few times the
breadth of its amplitude and of its reach. In Villavicencio v.
Lukban, 21 the remedy came in handy to challenge the validity of the
order of the then respondent Mayor of Manila who, for the best of
reasons but without legal justification, ordered the transportation of more
than 150 inmates of houses of ill-repute to Davao. After referring to the
writ of habeas corpus as having been devised and existing "as a speedy
and effectual remedy to relieve persons from unlawful restraint" the
opinion of Justice Malcolm continued: "The essential object and purpose
of the writ of habeas corpus is to inquire into all manner of involuntary
restraint as distinguished from voluntary, and to relieve a person
therefrom if such restraint is illegal. Any restraint which will preclude
freedom of action is sufficient." 22
The liberality with which the judiciary is to construe habeas corpus
petitions even if presented in pleadings on their face devoid of merit was
demonstrated in Ganaway v. Quilen, 23 where this Court, again through
Justice Malcolm, stated: "As standing alone the petition for habeas
corpus was fatally defective in its allegations, this court, on its motion,
ordered before it the record of the lower court in the case
entitled Thomas Casey, et al. v. George Ganaway." 24 It is to Justice
Malcolm likewise in Conde v. Rivera, 25 to whom is traceable the
doctrine, one that broadens the field of the operation of the writ, that a
disregard of the constitutional right to speedy trial ousts the court of
jurisdiction and entitles the accused if "restrained of his liberty, by
habeas corpus to obtain his
freedom." 26
So it is in the United States. An 1830 decision 27 of Chief Justice
Marshall put the matter thus: "The writ of habeas corpus is a high
prerogative writ, known to the common law, the great object of which is
the liberation of those who may be imprisoned without sufficient cause."
Then there is this affirmation from an 1869 decision 28 of the then Chief
Justice Chase: "The great writ of habeas corpus has been for centuries
esteemed the best and only sufficient defense of personal freedom." The
passing of the years has only served to confirm its primacy as a weapon
on in the cause of liberty. Only the other year, Justice Fortas spoke for
the United States Supreme Court thus: "The writ of habeas corpus is the
fundamental instrument for safeguarding individual freedom against
arbitrary and lawless state action. ... The scope and flexibility of the writ
— its capacity to reach all manner of illegal detention — its ability to cut
through barriers of form and procedural mazes — have always been
emphasized and jealously guarded by courts and lawmakers. The very
nature of the writ demands that it be administered with the initiative and
flexibility essential to insure that miscarriages of justice within its reach
are surfaced and corrected." 29 Justice Fortas explicitly made reference to
Blackstone, who spoke of it as "the great and efficacious writ, in all
manner of illegal confinement." Implicit in his just estimate of its pre-
eminent role is his adoption of Holmes' famous dissent in Frank v.
Mangum: 30 "But habeas corpus cuts through all forms and goes to the
very tissue of the structure."
2. Where, however, the detention complained of finds its origin in what
has been judicially ordained, the range of inquiry in a habeas corpus
proceeding is considerably narrowed. For if "the person alleged to be
restrained of his liberty is in the custody of an officer under process
issued by a court or judge or by virtue of a judgment or order of a court
of record, and that the court or judge had jurisdiction to issue the
process, render the judgment, or make the order," the writ does not
lie. 31 That principle dates back to 1902, 32 when this Court announced
that habeas corpus was unavailing where the person detained was in the
custody of an officer under process issued by a court or magistrate. This
is understandable, as during the time the Philippines was under
American rule, there was necessarily an adherence to authoritative
doctrines of constitutional law there followed.
One such principle is the requirement that there be a finding of
jurisdictional defect. As summarized by Justice Bradley in Ex
parte Siebold, an 1880 decision: "The only ground on which this court,
or any court, without some special statute authorizing it, will give relief
on habeas corpus to a prisoner under conviction and sentence of another
court is the want of jurisdiction in such court over the person or the
cause, or some other matter rendering its proceedings void." 33
There is the fundamental exception though, that must ever be kept in
mind. Once a deprivation of a constitutional right is shown to exist, the
court that rendered the judgment is deemed ousted of jurisdiction and
habeas corpus is the appropriate remedy to assail the legality of the
detention. 34
3. Petitioners precisely assert a deprivation of a constitutional right,
namely, the denial of equal protection. According to their petition: "In
the case at bar, the petitioners were convicted by Courts of First Instance
for the very same rebellion for which Hernandez, Geronimo, and others
were convicted. The law under which they were convicted is the very
same law under which the latter were convicted. It had not and has not
been changed. For the same crime, committed under the same law, how
can we, in conscience, allow petitioners to suffer life imprisonment,
while others can suffer only prision mayor?" 35
They would thus stress that, contrary to the mandate of equal protection,
people similarly situated were not similarly dealt with. What is required
under this required constitutional guarantee is the uniform operation of
legal norms so that all persons under similar circumstances would be
accorded the same treatment both in the privileges conferred and the
liabilities imposed. As was noted in a recent decision: "Favoritism and
undue preference cannot be allowed. For the principle is that equal
protection and security shall be given to every person under
circumstances, which if not identical are analogous. If law be looked
upon in terms of burden or charges, those that fall within a class should
be treated in the same fashion, whatever restrictions cast on some in the
group equally binding on the rest." 36
The argument of petitioners thus possesses a persuasive ring. The
continued incarceration after the twelve-year period when such is the
maximum length of imprisonment in accordance with our controlling
doctrine, when others similarly convicted have been freed, is fraught
with implications at war with equal protection. That is not to give it life.
On the contrary, it would render it nugatory. Otherwise, what would
happen is that for an identical offense, the only distinction lying in the
finality of the conviction of one being before the Hernandez ruling and
the other after, a person duly sentenced for the same crime would be
made to suffer different penalties. Moreover, as noted in the petition
before us, after our ruling in People v. Lava, petitioners who were mere
followers would be made to languish in jail for perhaps the rest of their
natural lives when the leaders had been duly considered as having paid
their penalty to society, and freed. Such a deplorable result is to be
avoided.
4. Petitioners likewise, as was made mention at the outset, would rely on
Article 22 of the Revised Penal Code which requires that penal judgment
be given a retroactive effect. In support of their contention, petitioners
cite U.S. v. Macasaet, 37 U.S. vs.Parrone, 38 U.S. v. Almencion, 39 People
v. Moran, 40 and People v. Parel. 41 While reference in the above
provision is made not to judicial decisions but to legislative acts,
petitioners entertain the view that it would be merely an exaltation of the
literal to deny its application to a case like the present. Such a belief has
a firmer foundation. As was previously noted, the Civil Code provides
that judicial decisions applying or interpreting the Constitution, as well
as legislation, form part of our legal system. Petitioners would even find
support in the well-known dictum of Bishop Hoadley:
"Whoever hath an absolute authority to interpret any written or spoken
laws, it is he who is truly the law-giver to all intents and purposes, and
not the person who first thought or spoke them." It is to be admitted that
constitutional law scholars, notably
Frankfurter, 42 Powell, 43 and Thayer, 44 in discussing judicial review as
well as the jurist John Chipman Gray, were much impressed with the
truth and the soundness of the above observations. We do not have to go
that far though. Enough for present purposes that both the Civil Code
and the Revised Penal Code allow, if they do not call for, a retroactive
application.
It being undeniable that if the Hernandez ruling were to be given a
retroactive effect petitioners had served the full term for which they
could have been legally committed, is habeas corpus the appropriate
remedy? The answer cannot be in doubt. As far back as 1910 the
prevailing doctrine was announced in Cruz v. Director of
Prisons. 45Thus: "The courts uniformly hold that where a sentence
imposes punishment in excess of the power of the court to impose, such
sentence is void as to the excess, and some of the courts hold that the
sentence is void in toto; but the weight of authority sustains the
proposition that such a sentence is void only as to the excess imposed in
case the parts are separable, the rule being that the petitioner is not
entitled to his discharge on a writ of habeas corpus unless he has served
out so much of the sentence as was valid." 46 There is a reiteration of
such a principle in Director v. Director of Prisons 47 where it was
explicitly announced by this Court "that the only means of giving
retroactive effect to a penal provision favorable to the accused ... is the
writ of habeas corpus." 48 While the above decision speaks of a trial
judge losing jurisdiction over the case, insofar as the remedy of habeas
corpus is concerned, the emphatic affirmation that it is the only means of
benefiting the accused by the retroactive character of a favorable
decision holds true. Petitioners clearly have thus successfully sustained
the burden of justifying their release.
WHEREFORE, the petition for habeas corpus is granted, and it is
ordered that petitioners be forthwith set at liberty.
Dizon and Zaldivar, JJ., concur.
Concepcion, C.J., concurs in the result.
Castro and Makasiar, JJ., took no part.
Separate Opinions
TEEHANKEE, J., concurring and dissenting:
The petitioners at bar, three of whom pleaded guilty1 and two of whom
stood
trial,2 were meted out life terms in 1953, 1954 and 1955 for the so-called
complex crime of rebellion with multiple murder and other crimes, and
have served or are now entering into their 17th year of imprisonment,
save for petitioner Epifanio Padua who was sentenced on December 15,
1955 and is completing his 15th year of imprisonment, (excluding the
periods they were under pre-conviction detention). The leaders of the
rebellion who were meted out death and life sentences for the same
charge by the Court of First Instance of Manila had their sentences
reduced last near to ten years of prision mayor by the Court in People v.
Lava,3 wherein the Court expressly re-affirmed the doctrine first laid
down in 1956 in People vs. Hernandez,4 that the crime of rebellion
cannot be complexed with other common crimes since such common
crimes "assume the political complexion of the main crime of which they
are mere ingredients and consequently cannot be punished separately
from the principal offense, or complexed with the same, to justify the
imposition of a graver penalty." The Court rejected therein the State's
plea for the reexamination and setting aside of such doctrine, declaring
that "(T)his Court has given this plea of the Solicitor General a very
serious consideration, but after a mature deliberation the members of this
Court have decided to maintain that ruling in the Hernandez case and to
adhere to what this Court said in that case." The said leaders have since
been duly freed as having served out their penalty, but their followers,
herein petitioners, are still serving their life sentences.
I concede the validity of the ruling in Pomeroy vs. Director of
Prisons5 that "(W)ith reference to persons in custody pursuant to a final
judgment, the rule is that the writ of habeas corpus can issue only for
want of jurisdiction of the sentencing court, and cannot function as a writ
of error." "I grant, too, that at the time of the Pomeroy decision in 1960,
as noted therein, "the existence of the 'complexed' rebellion (was) still
upheld by a sizable number of lawyers, prosecutors, judges and even
justices of this Court." But with the doctrine first enunciated in 1956
in Hernandez by a bare six-to-four majority vote having withstood the
test of time6 and having been just last year unreservedly reaffirmed
without a single dissent in Lava, it cannot now be gainsaid that it is now
part of our legal system that the crime of "complexed" rebellion does not
exist in our Revised Penal Code. No prosecutor would now file an
information for "complexed" rebellion but simply for the offense of
simple rebellion as defined in Article 134 of the Revised Penal Code,
and even if such an information for "complexed" rebellion to be so filed,
the trial courts would be bound to quash such information as not
charging an offense on the strength of Lava and Hernandez.
Petitioners have therefore properly invoked in their favor the provisions
of Article 22 of the Revised Penal Code that:
ART. 22. Retroactive effect of penal laws.—Penal laws
shall have a retroactive effect insofar as they favor the
person guilty of a felony, who is not a habitual criminal,
as this term is defined in rule 5 of article 62 of this Code,
although at the time of the publication of such laws a final
sentence has been pronounced and the convict is serving
the same.
in relation to the provisions of Article 8 of the Civil Code that "(J)udicial
decisions applying or interpreting the laws or the Constitution shall form
a part of the legal system of the Philippines."
The situation of petitioners is no different than it would be if, say, the
penalty of reclusion perpetua were imposed by statute for the crime of
simple rebellion at the time of their conviction and they were accordingly
sentenced, and the statutory penalty were now reduced to prision
mayor or 12 years imprisonment; having served out the maximum
penalty of 12 years now imposed by the amended statute, they would be
entitled to invoke the retroactive effect of the statute favoring
them.lâwphî1.ñèt The only difference between the situation given and
the present case is that here it is this Supreme Court, interpreting the
laws in discharge of its constitutional prerogative, that has laid down the
doctrine since Hernandez in 1956 that no offense of "complexed"
rebellion exists and petitioners should therefore be now equally entitled
to the retroactive favorable effect of such doctrine.
The actual case of petitioners is that at the time of their conviction, it
was
believed — erroneously — that the crime committed by them was
punishable by life imprisonment, but the Court has subsequently
judicially determined it not be so and that the maximum imposable
penalty is prision mayor or 12 years. Petitioners-convicts are entitled to
the benefit of this later judicial declaration, just as if a statutory
amendment had been enacted—not because the sentencing court had no
jurisdiction or is now ousted of jurisdiction. The writ prayed for should
issue, since as held in Directo vs. Director of Prisons,7 "the only means
of giving retroactive effect to a penal provision favorable to the accused
where the trial judge has lost jurisdiction over the case, is the writ of
habeas corpus."
The question of jurisdiction of the sentencing court therefore is moot, for
it is universally recognized that relief by habeas corpus may be properly
sought in cases of imposition of excessive penalty, such that the part of
the sentence beyond or in excess of the power of the court to impose is
held void, the applicant having already served out the entire part of the
sentence within the court's power. 8 As pointed out by the Court
in Rodriguez vs. Director of Prisons,9 furthermore, "Article 22 of the
Revised Penal Code ... extends its benefits even to convicts serving
sentence, and the only legal remedy open to them to make use of such
benefits is the writ of habeas corpus inasmuch as, if the penalty imposed
upon them under the former penal law was decreased by the revised
code, the excess has become illegal."
Regardless, therefore, of whether the trial courts that sentenced
petitioners to life sentences had jurisdiction or not to impose such
penalty, or were right or wrong in imposing such penalty, the only
relevant question now is whether petitioners have served the maximum
— and lesser — sentence of prision mayor that this Court has by firm
judicial doctrine since 1956 determined to be the penalty that the Revised
Penal Code fixes for the crime of rebellion. Since they have actually
served much more than the maximum imposable penalty, the excess of
the sentence imposed upon them over the imposable maximum of twelve
years of prision mayor cannot but be declared illegal and they should
now be set free.
In People vs. Parel, 10 the Court held that the provisions of a new law
(Act 3030) for the prescription of certain election offenses (fixing the
same at one year after commission) were more favorable to the accused
than those of the pre-existing law and were therefore retroactive as to the
same offenses committed before the enactment of the new law. In
meeting the objection that the reduced prescription period was by its
terms applicable only to offenses resulting from the new law (which
amended the pre-existing Election Law) and could not be given
retroactive effect, the Court found "that practically all of the offenses
defined in the former law are also defined in the same language in Act
3030 (the new law), the only difference being that the penalties have
been increased." Holding that the retroactivity clause of Article 22 of the
Penal Code must apply in all in which the new law is more favorable to
the accused, in the absence of any express statutory exception, the Court
drew this analogy: "Let us suppose that a statute is enacted defining the
crime of murder in the same language in which it is defined in the Penal
Code, but providing that the maximum penalty for the crime defined in
the new statute shall be life imprisonment, the statute containing no
provision that it shall not be retroactive in its effect. Would anyone then
maintain that the death penalty might still be imposed for murder
committed before the new statute was enacted?"
The case at bar for petitioners is much stronger. Here, there is no
question even as to the enactment of a law statute describing the crime in
the same language and imposing a lesser penalty, but the settled doctrine
of this Court that there does not exist in our legal system the complex
crime of rebellion of which the petitioners stand convicted, "since
rebellion cannot form a complex with common crimes, because the latter
are either absorbed by the rebellion itself or are punishable as
independent offenses." 11 Petitioners here have been convicted for the
very same rebellion and under the very same law for which their leaders,
Jose Lava et al., have been convicted. Yet, while their leaders have since
been freed after serving their sentences of ten years of prision mayor,
petitioners as mere followers are serving out the life sentences imposed
on them, notwithstanding their already having served out much more
than the maximum penalty of twelve years of prision mayor imposable
upon them. The fact that the legal doubts about the non-existence of the
crime of "complexed" rebellion were cleared up only in 1956 after they
had already been convicted and were serving their sentences does not
make the excess in the penalty imposed upon them beyond the maximum
of twelve years any less illegal.
The rule of prospective and non-retroactive operation of judicial
doctrines, and its corollary rule of the law of the case, have no
application here. These salutary rules decree that rights of parties having
been decisively settled and determined by final judgment of the court of
competent jurisdiction with the party adversely affected having had the
opportunity to raise in the case all relevant questions, the decision
becomes the law of the case, and vested rights would be impaired,
judicial chaos and disorder ensue and litigation would be never-ending
and would become more intolerable than the wrongs it is intended to
redress, should an adjudicated case be reopened simply because in
another and subsequent case, this Court adopted a new or different
construction of the law under which a different result of the adjudicated
case might have been obtained. Here, the whole question
turns — simply — on the nature of the crime of rebellion as defined in
section 134 of the Revised Penal Code and the maximum penalty
imposable therefor under section 135 of the same Code. As this Court
had ruled since 1956--which is now settled doctrine—that only the crime
of simple rebellion exists in our legal system for which the maximum
penalty of prision mayor may be imposed, the excess of the life
sentences imposed upon petitioners over the imposable maximum
of prision mayor cannot stand and must necessarily be declared void.
Prescinding then from the question of jurisdiction of the sentencing
courts, the case at bar presents a clear case of an excess in penalty
imposed beyond twelve years of prision mayor which has become illegal
by virtue of this Court's settled doctrine that the crime of rebellion cannot
be complexed with other common crimes. On this ground, as well as on
the further and more fundamental ground that to hold them liable to
continue serving life sentences for a crime that the law—at the time of
their conviction as well as now—punishes only with prision
mayor which they have more than fully served, would be to deny them
their constitutional rights of due process and equal protection of the law.
Any further detention of petitioners, in my view as above discussed, is
illegal and unconstitutional and the petition for habeas corpus should be
granted and petitioners forthwith set at liberty.
Reyes, J.B.L., Makalintal and Villamor, JJ., concur.
Separate Opinions
TEEHANKEE, J., concurring and dissenting:
The petitioners at bar, three of whom pleaded guilty1 and two of whom
stood
trial,2 were meted out life terms in 1953, 1954 and 1955 for the so-called
complex crime of rebellion with multiple murder and other crimes, and
have served or are now entering into their 17th year of imprisonment,
save for petitioner Epifanio Padua who was sentenced on December 15,
1955 and is completing his 15th year of imprisonment, (excluding the
periods they were under pre-conviction detention). The leaders of the
rebellion who were meted out death and life sentences for the same
charge by the Court of First Instance of Manila had their sentences
reduced last near to ten years of prision mayor by the Court in People v.
Lava,3 wherein the Court expressly re-affirmed the doctrine first laid
down in 1956 in People vs. Hernandez,4 that the crime of rebellion
cannot be complexed with other common crimes since such common
crimes "assume the political complexion of the main crime of which they
are mere ingredients and consequently cannot be punished separately
from the principal offense, or complexed with the same, to justify the
imposition of a graver penalty." The Court rejected therein the State's
plea for the reexamination and setting aside of such doctrine, declaring
that "(T)his Court has given this plea of the Solicitor General a very
serious consideration, but after a mature deliberation the members of this
Court have decided to maintain that ruling in the Hernandez case and to
adhere to what this Court said in that case." The said leaders have since
been duly freed as having served out their penalty, but their followers,
herein petitioners, are still serving their life sentences.
I concede the validity of the ruling in Pomeroy vs. Director of
Prisons5 that "(W)ith reference to persons in custody pursuant to a final
judgment, the rule is that the writ of habeas corpus can issue only for
want of jurisdiction of the sentencing court, and cannot function as a writ
of error." "I grant, too, that at the time of the Pomeroy decision in 1960,
as noted therein, "the existence of the 'complexed' rebellion (was) still
upheld by a sizable number of lawyers, prosecutors, judges and even
justices of this Court." But with the doctrine first enunciated in 1956
in Hernandez by a bare six-to-four majority vote having withstood the
test of time6 and having been just last year unreservedly reaffirmed
without a single dissent in Lava, it cannot now be gainsaid that it is now
part of our legal system that the crime of "complexed" rebellion does not
exist in our Revised Penal Code. No prosecutor would now file an
information for "complexed" rebellion but simply for the offense of
simple rebellion as defined in Article 134 of the Revised Penal Code,
and even if such an information for "complexed" rebellion to be so filed,
the trial courts would be bound to quash such information as not
charging an offense on the strength of Lava and Hernandez.
Petitioners have therefore properly invoked in their favor the provisions
of Article 22 of the Revised Penal Code that:
ART. 22. Retroactive effect of penal laws.—Penal laws
shall have a retroactive effect insofar as they favor the
person guilty of a felony, who is not a habitual criminal,
as this term is defined in rule 5 of article 62 of this Code,
although at the time of the publication of such laws a final
sentence has been pronounced and the convict is serving
the same.
in relation to the provisions of Article 8 of the Civil Code that "(J)udicial
decisions applying or interpreting the laws or the Constitution shall form
a part of the legal system of the Philippines."
The situation of petitioners is no different than it would be if, say, the
penalty of reclusion perpetua were imposed by statute for the crime of
simple rebellion at the time of their conviction and they were accordingly
sentenced, and the statutory penalty were now reduced to prision
mayor or 12 years imprisonment; having served out the maximum
penalty of 12 years now imposed by the amended statute, they would be
entitled to invoke the retroactive effect of the statute favoring them. The
only difference between the situation given and the present case is that
here it is this Supreme Court, interpreting the laws in discharge of its
constitutional prerogative, that has laid down the doctrine
since Hernandez in 1956 that no offense of "complexed" rebellion exists
and petitioners should therefore be now equally entitled to the retroactive
favorable effect of such doctrine.
The actual case of petitioners is that at the time of their conviction, it
was
believed — erroneously — that the crime committed by them was
punishable by life imprisonment, but the Court has subsequently
judicially determined it not be so and that the maximum imposable
penalty is prision mayor or 12 years. Petitioners-convicts are entitled to
the benefit of this later judicial declaration, just as if a statutory
amendment had been enacted—not because the sentencing court had no
jurisdiction or is now ousted of jurisdiction. The writ prayed for should
issue, since as held in Directo vs. Director of Prisons,7 "the only means
of giving retroactive effect to a penal provision favorable to the accused
where the trial judge has lost jurisdiction over the case, is the writ of
habeas corpus."
The question of jurisdiction of the sentencing court therefore is moot, for
it is universally recognized that relief by habeas corpus may be properly
sought in cases of imposition of excessive penalty, such that the part of
the sentence beyond or in excess of the power of the court to impose is
held void, the applicant having already served out the entire part of the
sentence within the court's power. 8 As pointed out by the Court
in Rodriguez vs. Director of Prisons,9 furthermore, "Article 22 of the
Revised Penal Code ... extends its benefits even to convicts serving
sentence, and the only legal remedy open to them to make use of such
benefits is the writ of habeas corpus inasmuch as, if the penalty imposed
upon them under the former penal law was decreased by the revised
code, the excess has become illegal."
Regardless, therefore, of whether the trial courts that sentenced
petitioners to life sentences had jurisdiction or not to impose such
penalty, or were right or wrong in imposing such penalty, the only
relevant question now is whether petitioners have served the maximum
— and lesser — sentence of prision mayor that this Court has by firm
judicial doctrine since 1956 determined to be the penalty that the Revised
Penal Code fixes for the crime of rebellion. Since they have actually
served much more than the maximum imposable penalty, the excess of
the sentence imposed upon them over the imposable maximum of twelve
years of prision mayor cannot but be declared illegal and they should
now be set free.
In People vs. Parel, 10 the Court held that the provisions of a new law
(Act 3030) for the prescription of certain election offenses (fixing the
same at one year after commission) were more favorable to the accused
than those of the pre-existing law and were therefore retroactive as to the
same offenses committed before the enactment of the new law. In
meeting the objection that the reduced prescription period was by its
terms applicable only to offenses resulting from the new law (which
amended the pre-existing Election Law) and could not be given
retroactive effect, the Court found "that practically all of the offenses
defined in the former law are also defined in the same language in Act
3030 (the new law), the only difference being that the penalties have
been increased." Holding that the retroactivity clause of Article 22 of the
Penal Code must apply in all in which the new law is more favorable to
the accused, in the absence of any express statutory exception, the Court
drew this analogy: "Let us suppose that a statute is enacted defining the
crime of murder in the same language in which it is defined in the Penal
Code, but providing that the maximum penalty for the crime defined in
the new statute shall be life imprisonment, the statute containing no
provision that it shall not be retroactive in its effect. Would anyone then
maintain that the death penalty might still be imposed for murder
committed before the new statute was enacted?"
The case at bar for petitioners is much stronger. Here, there is no
question even as to the enactment of a law statute describing the crime in
the same language and imposing a lesser penalty, but the settled doctrine
of this Court that there does not exist in our legal system the complex
crime of rebellion of which the petitioners stand convicted, "since
rebellion cannot form a complex with common crimes, because the latter
are either absorbed by the rebellion itself or are punishable as
independent offenses." 11 Petitioners here have been convicted for the
very same rebellion and under the very same law for which their leaders,
Jose Lava et al., have been convicted. Yet, while their leaders have since
been freed after serving their sentences of ten years of prision mayor,
petitioners as mere followers are serving out the life sentences imposed
on them, notwithstanding their already having served out much more
than the maximum penalty of twelve years of prision mayor imposable
upon them. The fact that the legal doubts about the non-existence of the
crime of "complexed" rebellion were cleared up only in 1956 after they
had already been convicted and were serving their sentences does not
make the excess in the penalty imposed upon them beyond the maximum
of twelve years any less illegal.
The rule of prospective and non-retroactive operation of judicial
doctrines, and its corollary rule of the law of the case, have no
application here. These salutary rules decree that rights of parties having
been decisively settled and determined by final judgment of the court of
competent jurisdiction with the party adversely affected having had the
opportunity to raise in the case all relevant questions, the decision
becomes the law of the case, and vested rights would be impaired,
judicial chaos and disorder ensue and litigation would be never-ending
and would become more intolerable than the wrongs it is intended to
redress, should an adjudicated case be reopened simply because in
another and subsequent case, this Court adopted a new or different
construction of the law under which a different result of the adjudicated
case might have been obtained. Here, the whole question
turns — simply — on the nature of the crime of rebellion as defined in
section 134 of the Revised Penal Code and the maximum penalty
imposable therefor under section 135 of the same Code. As this Court
had ruled since 1956--which is now settled doctrine—that only the crime
of simple rebellion exists in our legal system for which the maximum
penalty of prision mayor may be imposed, the excess of the life
sentences imposed upon petitioners over the imposable maximum
of prision mayor cannot stand and must necessarily be declared void.
Prescinding then from the question of jurisdiction of the sentencing
courts, the case at bar presents a clear case of an excess in penalty
imposed beyond twelve years of prision mayor which has become illegal
by virtue of this Court's settled doctrine that the crime of rebellion cannot
be complexed with other common crimes. On this ground, as well as on
the further and more fundamental ground that to hold them liable to
continue serving life sentences for a crime that the law—at the time of
their conviction as well as now—punishes only with prision
mayor which they have more than fully served, would be to deny them
their constitutional rights of due process and equal protection of the law.
Any further detention of petitioners, in my view as above discussed, is
illegal and unconstitutional and the petition for habeas corpus should be
granted and petitioners forthwith set at liberty.
Reyes, J.B.L., Makalintal and Villamor, JJ., concur.
Footnotes
1 99 Phil. 515 (1956).
2 107 Phil. 50 (1960).
3 Art. 8 of the Civil Code provides: "Judicial decisions
applying or interpreting the laws or the Constitution shall
form a part of the legal system of the Philippines."
4 According to Art. 22 of the Revised Penal Code:
"Retroactive effect of penal laws.—Penal laws shall have
a retroactive effect insofar as they favor the person guilty
of a felony, who is not a habitual criminal, as this term is
defined in rule 5 of article 62 of this Code, although at the
time of the publication of such laws a final sentence has
been pronounced and the convict is serving the same."
5 Petition, par. 1.1 dated January 11,
1969.lâwphî1.ñèt The above allegations are expressly
admitted in the answer for the respondent Director of
Prisons filed by the Solicitor General on April 10, 1969.
6 99 Phil. 515 (1956).
7 The petition likewise cited in addition to People v.
Hernandez, People v. Geronimo, 100 Phil. 90 (1956);
People v. Togonon, 101 Phil. 804 (1957); People v.
Romagoza, 103 Phil. 20 (1958) and People v. Santos, 104
Phil. 551 (1958). Petition, par. 1.2.
8 L-4974, May 16, 1969.
9 Petition, par. 1.3.
10 Chafee, The Most Important Human Right in the
Constitution, 32 Boston Univ. Law Rev. 143 (1947).
11 2 Cooley, Constitutional Limitations 709 (1927).
12 3 Willoughby on the Constitution 1612 (1929).
13 Burdick, the Law of the American Constitution 27
(1922).
14 Fraenkel, Our Civil Liberties 6 (1944).
15 Cf. In re Patterson, 1 Phil. 93 (1902).
16 Cf. Ortiz v. del Villar, 57 Phil. 19 (1932).
17 Cf. Slade Perkins v. Director of Prisons, 58 Phil. 271
(1933).
18 Cf. Pomeroy v. Director of Prisons, 107 Phil. 50, 59-
62, diss. (1960).
19 Cf. Avelino v. Vera, 77 Phil. 192 (1946).
20 Cf. Saulo v. Cruz, 105 Phil. 315 (1959).
21 39 Phil. 778 (1919).
22 Ibid., p. 790.
23 42 Phil. 805 (1922).
24 Ibid., p. 805.
25 45 Phil. 650 (1924).
26 Ibid., p. 652.
27 Ex parte Watkins, 3 Pet. 193, 202.
28 Ex parte Yerger, 8 Wall. 85, 95.
29 Harris v. Nelson, 22 L Ed 2d 281, 286 (1969).
30 237 US 309, 346 (1915).
31 Section 4, Rule 102 provides: "If it appears that the
person alleged to be restrained of his liberty is in the
custody of an officer under process issued by a court or
judge or by virtue of a judgment or order of a court of
record, and that the court or judge had jurisdiction to issue
the process, render the judgment, or make the order, the
writ shall not be allowed; or if the jurisdiction appears
after the writ is allowed, the person shall not be
discharged by reason of any informality or defect in the
process, judgment, or order. Nor shall anything in this
rule be held to authorize the discharge of a person charged
with or convicted of an offense in the Philippines, or of a
person suffering imprisonment under lawful judgment." 3
Moran, Comments on the Rules of Court, p. 604, 1970 ed.
32 In re Prautch, 1 Phil. 132.
33 100 US 371, 375. According to Ex parte Lange: "On
consideration of the petition, the court was of opinion that
the facts therein recited very fairly raised the question
whether the circuit court, in the sentence which it had
pronounced, and under which the prisoner was held, had
not exceed its powers. It therefore directed the writ to
issue, accompanied also by a writ of certiorari, to bring
before this court the proceedings in the circuit court under
which the petitioner was restrained of his liberty. The
authority of this court in such case, under the Constitution
of the United States, and the 14th section of the judiciary
act of 1789 (1 Stat. at L. 73), to issue this writ, and to
examine the proceedings in the inferior court, so far as
may be necessary to ascertain whether that court has
exceeded its authority, is no longer open to question." (85
US 163, 165-166 [1874]). Justice Miller, who penned the 3 28 SCRA 72, 100 (May 16, 1969).
opinion, cited the following cases: U. S. v. Hamilton, 3 4 99 Phil. 515 (1956).
Dall. 17 (1795); Ex parte Burford, 3 Cranch 448 5 107 Phil., 50 (1960).
(1806); Ex parte Bollman, 4 Cranch 75 (1807); Ex 6 Reiterated in People vs. — Geronimo, 100 Phil., 90
parte Watkins, 3 Pet. 193, 7 Pet. 508 (1830); Ex (1956); — Togonon, 101 Phil., 804 (1957); — Romagoza,
Parte Metzger, 5 How. 176 (1847); Ex parte Kaine, 14 103 Phil., 20 (1958); and Aquino, 108 Phil., 814 (1960).
How. 103 (1852); Ex parte Wells, 18 How. 307 7 56 Phil. 692 (1932).
(1856); Ex Parte Milligan, 4 Wall. 2 (1866); Ex 8 Cruz vs. Director of Prisons, 17 Phil. 269
parte Mccardle, 6 Wall. 318 (1868); Ex parte Yerger, 8 (1910); See also Caluag vs. Pecson, 82 Phil. 8 (1948).
Wall. 85 (1869). 9 57 Phil. 133 (1932).
34 Cf. Conde v. Rivera, 45 Phil. 650 (1924); Harden v. 10 44 Phil. 437 (1932), emphasis copied; see also People
Director of Prisons, 81 Phil. 741 (1948); Abriol v. vs. Moran, 44 Phil. 387 (1923).
Homeres, 84 Phil. 525 (1949); Chavez v. Court of 11 Pomeroy vs. Director of Prisons, supra fn. 5, see pp.
Appeals, 54, 61.
L-29169, Aug. 1968, 24 SCRA 663; Celeste v. People, L-
21435, Jan. 30, 1970, 31 SCRA 391.
35 Petition, par. 5.1, p. 11.
36 J. M. Tuason & Co., Inc. v. Land Tenure
Administration, L-21064, Feb. 18, 1970, 31 SCRA 413.
37 11 Phil. 447 (1908).
38 24 Phil. 29 (1913).
39 25 Phil. 648 (1913).
40 44 Phil. 387 (1923).
41 44 Phil. 437 (1923).
42 Frankfurter, The Reading of Statutes, reproduced in Of
Law and Men, 47, at p. 53 (1956).
43 Powell, The Logic and Rhetoric of Constitutional Law,
1 Selected Essays on Constitutional Law 474, at p. 481
(1938).
44 Thayer, The Origin and Scope of the American
Doctrine of Constitutional Law, Ibid., 503, at p. 524
(1938).
45 17 Phil. 269.
46 Ibid., pp. 272-273.
47 56 Phil. 692 (1932).
48 Ibid. p. 695.
TEEHANKEE, J.:
1 Petitioners Gumabon, Agapito and Palmares.
2 Petitioners Bagolbagol and Padua.
G.R. No. L-62114 July 5, 1983
ISIDRO BERNARDO and CAYETANO BERNARDO, petitioners,
vs.
THE PEOPLE OF THE PHILIPPINES, respondent.
Alberto Mala, Jr. for petitioners.
The Solicitor General for respondent.
RELOVA, J.:
FIRST DIVISION
Petitioner Isidro Bernardo was a tenant of Ledda Sta. Rosa in her
riceland in Plaridel, Bulacan from October 1972 to August 1974. At the
time, petitioner constructed a house therein for his family's dwelling. His
son, co-petitioner Cayetano Bernardo, was staying with him in said
house as his helper in tilling the land. Subsequently, Isidro left the
landholding and transferred to San Nicolas, Bulacan without the
knowledge of the landowner Ledda Sta. Rosa. Before leaving the
landholding, however, Isidro transferred his tenancy rights to his son, co-
petitioner Cayetano Bernardo, who continued to reside in subject house.
Eventually, Ledda Sta. Rosa took possession of the whole riceland,
through her overseer Dr. Patricio E. Cruz.
A case of forcible entry was filed by Ledda Sta. Rosa against herein
petitioners, Isidro Bernardo and Cayetano Bernardo, before the
Municipal Court of Plaridel, Bulacan. Petitioners lost before the inferior
court as well as in the Court of First Instance of Bulacan. Likewise,
petitioners lost in their petition for certiorari and mandamus before the
Court of Appeals.
Thereafter, Ledda Sta. Rosa sent a letter of demand to petitioners telling
them to vacate the house and the land. When the latter failed to leave, a
criminal complaint was filed against them for violation of Presidential
Decree No. 772 with the fiscal's office. After a preliminary investigation
of the case, the provincial fiscal filed the corresponding information with
the Court of First Instance of Bulacan, Branch VI, docketed as Criminal
Case No. 3022-M, as follows:
That on or about the 22nd day of April 1974, in the
municipality of Plaridel, province of Bulacan, Philippines,
and within the jurisdiction of this Honorable Court, the
said accused Isidro Bernardo and Cayetano Bernardo, did
then and there willfully, unlawfully and feloniously,
without the knowledge and taking advantage of the
tolerance of the owner Ledda Sta. Rosa y Cruz, succeed
and/or continue in possessing and squatting on a parcel of
land of the said owner, by erecting thereon their
residential house and failing to remove the said residential
house despite demand to do so made by the said owner.
Upon arraignment, herein petitioners, father and son, entered a plea of
not guilty. Trial on the merits of the case proceeded and, after both
parties have submitted their cases, herein petitioners, through counsel,
filed a motion to dismiss on the ground of lack of jurisdiction of the
court to entertain a case for violation of Presidential Decree No. 772,
inasmuch as the same applies to squatters in urban communities only and
not to agricultural lands; that in the case of People vs. Echaves, 95
SCRA 663, it was held that "Presidential Decree No. 772 does not apply
to pasture lands because its preamble shows that it was intended to apply
to squatting in urban communities or more particularly to illegal
construction in squatter areas made by well-to-do individuals."
The motion to dismiss was denied and the trial court rendered judgment
convicting herein petitioners of the crime charged and sentencing them
to pay a fine of P2,500.00 each, with subsidiary imprisonment in case of
insolvency. Hence, this petition for certiorari to set aside the decision of
the lower court on the ground that it has no jurisdiction to entertain the
criminal case for alleged violation of Presidential Decree No. 772 since
the facts obtaining in the case do not constitute an offense or violation of
said law.
Indeed, in the case of People vs. Echaves, supra, this Court, speaking
through Mr. Justice Ramon C. Aquino, held that Presidential Decree No.
772 does not apply to pasture lands. The preamble of the decree is
quoted below:
WHEREAS, it came to my knowledge that despite the
issuance of Letter of Instruction No. 19 dated October 2,
1972, directing the Secretaries of National Defense,
Public Works and Communications, Social Welfare and
the Director of Public Works, the PHHC General
Manager, the Presidential Assistant on Housing and
Rehabilitation Agency, Governors, City and Municipal
Mayors, and City and District Engineers, 'to remove all
illegal constructions including buildings on and along
esteros and river banks, those along railroad tracks and
those built without permits on public and private
 property,' squatting is still a major problem in urban
communities all over the country;
WHEREAS, many persons or entities found to have been
unlawfully occupying public and private lands belong to
the affluent class;
WHEREAS, there is a need to further intensify the
government's drive against this illegal and nefarious
practice.
The intent of the decree is unmistakable. It is intended to apply only to
urban communities, particularly to illegal constructions.
The Solicitor General in his comment to the petition manifests that "the
intent and purpose of PD 772 is to prohibit and penalize squatting or
similar acts on public and private lands located in urban communities. ...
['that no person should be brought within the terms of a penal statute
who is not clearly within them, nor should any act be pronounced
criminal which is not clearly made so by the statute (US vs. Abad
Santos, 36 Phil. 243). ... Consequently, the decision of the lower court in
Criminal Case No. 3022- M, convicting herein petitioners of the offense
of violation of PD No. 772, is null and void and should, therefore, be set
aside."
ACCORDINGLY, this petition for certiorari is GRANTED, the
judgment of conviction is SET ASIDE, and said Criminal Case No.
3022-M is hereby DISMISSED.
SO ORDERED.
Teehankee (Chairman), Plana, Escolin and Gutierrez, Jr., JJ., concur.
Melencio-Herrera and Vasquez, JJ., are on leave.
G.R. No. 100210 April 1, 1998
THE PEOPLE OF THE PHILIPPINES, petitioner,
vs.
HON. OSCAR B. PIMENTEL, as Judge, RTC of Makati, Metro
Manila, Branch 148 and ANTONIO A. TUJAN, respondents.
MARTINEZ, J.:
Is the Court of Appeals, in affirming the order of the Regional Trial
Court, correct in ruling that Subversion is the "main offense" in a charge
of Illegal Possession of Firearm and Ammunition in Furtherance of
Subversion under P.D. No. 1866, as amended, and that, therefore, the
said charge should be quashed in view of a previous charge
of Subversion under R.A. No. 1700, as amended by P.D. No. 885,
against the same accused pending in another court?
Stated differently, is the accused charged with the same offense in both
cases, which would justify the dismissal of the second charge on the
ground of double jeopardy?
This is the pith issue presented before us in this appeal
by certiorari interposed by the People under Rule 45 of the Revised
Rules of Court, seeking a review of the decision1 of the Court of Appeals
(Sixteenth Division) dated May 27, 1991, in CA-G.R. SP No. 24273,
entitled "THE PEOPLE OF THE PHILIPPINES, Petitioner, versus
HON. OSCAR B. PIMENTEL, as Judge, RTC of Makati, Metro Manila,
Branch 148 and ANTONIO A. TUJAN, Respondents."
The record discloses the following antecedent facts:
As early as 1983, private respondent Antonio Tujan was charged with
Subversion under Republic Act No. 1700 (the Anti-Subversion Law), as
amended, before the Regional Trial Court of Manila (Branch 45),
National Capital Region, docketed as Criminal Case No. 64079.2 As a
consequence thereof, a warrant for his arrest was issued on July 29,
1983,3 but it remained unserved as he could not be found.
Almost seven (7) years thereafter, or on June 5, 1990, Antonio Tujan
was arrested on the basis of the warrant of arrest in the subversion
case.4 When arrested, an unlicensed .38 caliber special revolver and six
(6) rounds of live ammunition were found in his possession.5
Consequently, on June 14, 1990, Antonio Tujan was charged with Illegal
Possession of Firearm and Ammunition in Furtherance of Subversion
under Presidential Decree No. 1866, as amended, before the Regional
Trial Court of Makati (Branch 148), docketed as Criminal Case No.
1789. The Information reads:
That on or about the 5th day of June, 1990, in the Municipality of
Parañaque, Metro Manila, Philippines and within the jurisdiction
of this Honorable Court, the above-named accused, being a
member of a communist party of the Philippines, and its front
organization, did then and there willfully, unlawfully and
feloniously have in his possession, control and custody, in
furtherance of or incident to, or in connection with the crime of
subversion, a special edition ARMSCOR PHILS. caliber .38
special revolver with Serial No. 1026387 and with six (6) live
ammunitions, without first securing the necessary license or
permit thereof from competent government authority.6
The above Information recommended no bail for Antonio Tujan, which
recommendation was approved by the trial court in an Order dated June
19, 1990.7 The same order also directed the continued detention of
Antonio Tujan at MIG 15 of the Intelligence Service of the Armed
Forces of the Philippines (ISAFP), Bago Bantay, Quezon City, while his
case is pending.
On June 26, 1990, Antonio Tujan, through counsel, filed a
motion8 invoking his right to a preliminary investigation pursuant to
Section 7, Rule 112 of the Revised Rules of Court and praying that his
arraignment be held in abeyance until the preliminary investigation is
terminated.
However, on June 27, 1990, during the hearing of Antonio Tujan's
motion for preliminary investigation, his counsel withdrew the motion
since he would file a motion to quash the Information, for which reason
counsel requested a period of twenty (20) days to do so. This was
granted by the trial court on that same day.9
On July 16, 1990, Antonio Tujan did file the motion to quash10 the
Information in Criminal Case No. 1789 on the ground that he "has been
previously in jeopardy of being convicted of the offense charged" in
Criminal Case No. 64079 (for subversion) of the Regional Trial Court of
Manila (Branch 45). The said ground is based on Sections 3 (h) and 7,
Rule 117 of the 1985 Rules on Criminal Procedure. In support of the
motion, Antonio Tujan contends that "common crimes such as illegal
possession of firearms and ammunition should actually be deemed
absorbed in subversion,"11 citing the cases of Misolas vs. Panga, et al.
(G.R. No. 83341, January 30, 1990, 181 SCRA 648) and Enrile
vs. Salazar, et al. (G.R. No. 92163, June 5, 1990, 186 SCRA 217).
Antonio Tujan then avers that "the present case is the twin prosecution"
of "the earlier subversion case" and, therefore, he "is entitled to invoke
the constitutional protection against double jeopardy."12
The petitioner opposed13 the motion to quash, arguing that Antonio
Tujan does not stand in jeopardy of being convicted a second time
because: (a) he has not even been arraigned in the subversion case, and
(b) the offense charged against him in Criminal Case No. 64079 is for
Subversion, punishable under Republic Act No. 1700; while the present
case is for Illegal Possession of Firearm and Ammunition in Furtherance
of Subversion, punishable under a different law (Presidential Decree No.
1866). Moreover, petitioner contends that Antonio Tujan's reliance on
the Misolas and Enrile cases "is misplaced."14 Tujan merely relies on the
dissenting opinions in the Misolas case. Also, the Enrile case which
involved a complex crime of rebellion with murder is inapplicable to the
instant case which is not a complex offense. Thus, the "absorption rule"
as held applicable in the Enrile ruling "has no room for application in the
present case because (illegal) possession of firearm and ammunition is
not a necessary means of committing the offense of subversion, nor is
subversion a necessary means of committing the crime of illegal
possession of firearm and ammunition."15
The trial court, in an order dated October 12, 1990, granted the motion to
quash the Information in Criminal Case No. 1789, the dispositive portion
of the order reading:
WHEREFORE, the motion to quash the information is hereby
GRANTED, but only in so far as the accused may be placed in
jeopardy or in danger of being convicted or acquitted of the crime
of Subversion and as a consequence the Information is hereby
quashed and the case dismissed without prejudice to the filing of
Illegal Possession of Firearm.
SO ORDERED.16
It is best to quote the disquisition of the respondent court in quashing the
information and dismissing the case:
xxx xxx xxx
In other words, the main offense the accused is being charged in
this case is also Subversion considering that the alleged Illegal
Possession of the Firearm and Ammunition is only in furtherance
thereof.
Now, subversion being a continuing offense as has been
previously held by the Supreme Court, the fact that the accused
has been previously charged of Subversion before another court
before the institution of this instant case is just a continuing
offense of his former charge or that his acts constituting
subversion is a continuation of the acts he committed before.
The court therefore cannot subscribe to the position taken by the
prosecution that this case is very different from the other case and
that double jeopardy will attach in this particular case.
This court agrees with the position taken by the defense that
double jeopardy will attach to the accusation of subversion,
punishable now under Republic Act 1700, as Rule 117 of the
Rules of Court particularly Section 1 thereof, provides:
Time to move to quash — At anytime before
entering his plea, the accused may move to quash
the complaint or information.(la)
In other words, there is no necessity that the accused should be
arraigned first before he can move to quash the information. It is
before he pleads which the accused did in this case.
On the other submissions by the prosecution, that the possession
of firearms and ammunitions is not a necessary means of
committing the offense of subversion or vice versa, then if the
court follows such argument, there could be no offense of Illegal
Possession of Firearm and Ammunition in furtherance of
Subversion, for even the prosecution admits also that in
subversion which is an offense involving propaganda, counter
propaganda, a battle of the hearts and mind of the people does not
need the possession or use of firearms and ammunitions.
The prosecution even admits and to quote:
The defense of double jeopardy. while
unquestionably available to the accused, had not
been clearly shown to be invokable(sic) at this
point in time.
But the rule says otherwise as previously stated as provided for
under Section 1 of Rule 117 of the Rules of Court.
Thus, if ever the accused is caught in possession of a firearm and
ammunition which is separate and distinct from the crime of
subversion and is not a necessary ingredient thereof and the
court believed so, the prosecution will have to file another
 information as they may wish. The court therefore has to grant
the motion to quash on the aforestated grounds, subject to
Section 5 of Rule 117, considering that the only offense to which
the accused in this case may be placed in jeopardy is Subversion
and not Illegal Possession of Firearms and Ammunitions.
The prosecution may file any information as warranted within ten
(10) days from receipt of this order otherwise the court will order
the release of the accused, unless he is in custody for some other
offense.17(Emphasis ours)
Petitioner's motion for reconsideration18 was also denied in an order
dated December 28, 1990.19
The petitioner elevated the case to the Court of Appeals through a
petition for certiorari, docketed as CA-G.R. SP No. 24273. However, the
appellate court found that the trial court did not commit any grave abuse
of discretion amounting to lack or excess of jurisdiction in quashing the
questioned Information. In dismissing the petition, the appellate court, in
its decision dated May 27, 1991, basically reiterated the aforequoted
ruling of the trial court.
Petitioner now comes to this Court, claiming that: (1) the decision of the
Court of Appeals is not in accord with the law and applicable
jurisprudence; and (2) it was deprived of due process to prosecute and
prove its case against private respondent Antonio Tujan in Criminal Case
No. 1789.
We agree with the petitioner.
The Court of Appeals considered as duplicitous the Information for
violation of P.D. No. 1866 filed against private respondent Antonio
Tujan. It ruled:
The foregoing information (for Illegal Possession of Firearm and
Ammunition in Furtherance of Subversion) filed before the
Makati court shows that the main case is subversion considering
that there is an allegation that the alleged illegal possession of
firearms was made "in furtherance of or incident to, or in
connection with the crime of subversion." Also, the information
alleged likewise that the accused is a member of a communist
party of the Philippines and its front organization. Basically, the
information refers to the crime of Subversion qualified by Illegal
Possession of Firearms. . . .20
The ruling of the Court of Appeals is erroneous.
Section 1 of Presidential Decree No. 1866, under which Antonio Tujan is
charged in Criminal Case No. 1789 before the Regional Trial Court of
Makati (Branch 148), provides as follows:
Sec. 1. Unlawful Manufacture, Sales, Acquisition, Disposition or
Possession of Firearms or Ammunition or Instruments Used or
Intended to be Used in the Manufacture of Firearms or
Ammunition. — The penalty of reclusion temporal in its
maximum period to reclusion perpetua shall be imposed
upon any person who shall unlawfully manufacture, deal in,
acquire, dispose, or posses any firearms, part of firearm,
ammunition, or machinery, tool or instrument used or intended to
be used in the manufacture of any firearm or ammunition.
If homicide or murder is committed with the use of an unlicensed
firearms, the penalty of death shall be imposed.
If the violation of this Section is in furtherance of, or incident to,
or in connection with the crimes of rebellion, insurrection or
subversion, the penalty of death shall be imposed.
The penalty of reclusion temporal in its maximum period
to reclusion perpetua shall be imposed upon the owner,
president, manager, director or other responsible officer of any
public or private firm, company, corporation or entity, who shall
willfully or knowingly allow any of the firearms owned by such
firm, company, corporation or entity to be used by any person or
persons found guilty of violating the provisions of the preceding
paragraphs.
The penalty of prision mayor shall be imposed upon any person
who shall carry any licensed firearm outside his residence
without legal authority therefor. (Emphasis ours)
The above-quoted provisions of P.D. No. 1866 are plain and simple.
Under the first paragraph of Section 1, the mere possession of an
unlicensed firearm or ammunition is the crime itself which carries the
penalty of reclusion temporal in its maximum period to reclusion
perpetua. The third paragraph of the same Section makes the use of said
firearm and ammunition "in furtherance of, or incident to, or in
connection with the crimes of rebellion, insurrection or subversion" a
circumstance to increase the penalty to death. Thus, the allegation in the
Information in Criminal Case No. 1789 that the unlicensed firearm found
in the possession of Antonio Tujan, "a member of the communist party
of the Philippines and its front organization," was used "in furtherance of
or incident to, or in connection with the crime of subversion" does not
charge him with the separate and distinct crime of Subversion in the
same Information, but simply describes the mode or manner by which the
violation of Section 1 of P.D. No. 1866 was committed21 so as to qualify
the penalty to death.
There is, therefore, only one offense charged in the questioned
information, that is, the illegal possession of firearm and ammunition,
qualified by its being used in furtherance of subversion.22 There is
nothing in P.D. No. 1866, specifically Section 1 thereof, which decrees
categorically or by implication that the crimes of rebellion, insurrection
or subversion are the very acts that are being penalized. This is clear
from the title of the law itself which boldly indicates the specific acts
penalized under it:
CODIFYING THE LAWS
ON ILLEGAL/UNLAWFUL POSSESSION,
MANUFACTURE, DEALING IN, ACQUISITION
OR DISPOSITION, OF FIREARMS,
AMMUNITION OR EXPLOSIVES OR
INSTRUMENTS USED IN THE
MANUFACTURE OF FIREARMS,
AMMUNITION OR EXPLOSIVES,
AND IMPOSING STIFFER PENALTIES FOR
CERTAIN VIOLATIONS THEREOFAND FOR
RELEVANT PURPOSES. (Emphasis ours)
On the other hand, the previous subversion charge against Antonio Tujan
in Criminal Case No. 64079, before the Regional Trial Court of Manila
(Branch 45), is based on a different law, that is, Republic Act No. 1700,
as amended. Section 3 thereof penalizes any person who "knowingly,
willfully and by overt act affiliates with, becomes or remains a member
of a subversive association or organization . . ." Section 4 of said law
further penalizes "such member [of the Communist Party of the
Philippines and/or its successor or of any subversive association] (who)
takes up arms against the Government." Thus, in the present case, private
respondent Antonio Tujan could be charged either under P.D. No. 1866
or R.A. No. 1700,23 or both.
This leads us to the issue of whether or not private respondent Antonio
Tujan was placed in double jeopardy with the filing of the second
Information for Illegal Possession of Firearm and Ammunition in
Furtherance of Subversion.
We rule in the negative.
Article III of the Constitution provides:
Sec. 21. No person shall be twice put in jeopardy of punishment
for the same offense. If an act is punished by a law and an
ordinance, conviction or acquittal under either shall constitute a
bar to another prosecution for the same act. (Emphasis ours)
Complementing the above constitutional provision, Rule 117 of the
Revised Rules of Court states:
Sec. 7. Former conviction or acquittal; double jeopardy. —
When an accused has been convicted or acquitted, or the case
against him dismissed or otherwise terminated without his
express consent by a court of competent jurisdiction, upon a valid
complaint or information or other formal charge sufficient in
form and substance to sustain a conviction and after the accused
had pleaded to the charge, the conviction or acquittal of the
accused or the dismissal of the case shall be a bar to another
prosecution for the offense charged, or for any attempt to commit
the same or frustration thereof, or for any offense which
necessarily includes or is necessarily included in the offense
charged in the former complaint or information.
xxx xxx xxx
The right of an accused against double jeopardy is a matter which he
may raise in a motion to quash to defeat a subsequent prosecution for
the same offense. The pertinent provision of Rule 117 of the Revised
Rules of Court provides:
Sec. 3. Grounds. — The accused may move to quash the
complaint or information on any of the following grounds:
xxx xxx xxx
(h) That the accused has been previously convicted or in jeopardy
of being convicted, or acquitted of the offense charged. (2a)
(Emphasis ours)
In order that the protection against double jeopardy may inure to the
benefit of an accused, the following requisites must have obtained in
the first criminal action: (a) a valid complaint or information; (b) a
competent court; (c) the defendant had pleaded to the charge;24 and (d)
the defendant was acquitted, or convicted, or the case against him was
dismissed or otherwise terminated without his express consent.25
Suffice it to say that in the present case, private respondent's motion to
quash filed in the trial court did not actually raise the issue of double
jeopardy simply because it had not arisen yet. It is noteworthy that the
private respondent has not even been arraigned in the first criminal
action for subversion. Besides, as earlier discussed, the two criminal
charges against private respondent are not of the same offense as
required by Section 21, Article III of the Constitution.
It is clear from the foregoing, that the assailed decision of the Court of
Appeals is not in accordance with the law and jurisprudence and thus
should be reversed.
While we hold that both the subversion charge under R.A. No. 1700, as
amended, and the one for illegal possession of firearm and ammunition
in furtherance of subversion under P.D. No. 1866, as amended, can co-
exist, the subsequent enactment of Republic Act No. 7636 on September
22, 1992, totally repealing R.A. No. 1700, as amended, has substantially
changed the complexion of the present case, inasmuch as the said
repealing law being favorable to the accused-private respondent, who is
not a habitual delinquent, should be given retroactive effect.26
Although this legal effect of R.A. No. 7636 on private-respondent's case
has never been raised as an issue by the parties — obviously because the
said law came out only several months after the questioned decision of
the Court of Appeals was promulgated and while the present petition is
pending with this Court — we should nonetheless fulfill our duty as a
court of justice by applying the law to whomsoever is benefited by it
regardless of whether or not the accused or any party has sought the
application of the beneficent provisions of the repealing law.27
That R.A. No. 7636 should apply retroactively to accused-private
respondent is beyond question. The repeal by said law of R.A. No. 1700,
as amended, was categorical, definite and absolute. There was no saving
clause in the repeal. The legislative intent of totally abrogating the old
anti-subversion law is clear. Thus, it would be illogical for the trial
courts to try and sentence the accused-private respondent for an offense
that no longer exists.28
As early as 1935, we ruled in People vs. Tamayo:29
There is no question that at common law and in America a much
more favorable attitude towards the accused exists relative to
statutes that have been repealed than has been adopted here. Our
rule is more in conformity with the Spanish doctrine, but even in
Spain, where the offense ceases to be criminal, prosecution
cannot be had. (1 Pacheco Commentaries, 296) (Emphasis ours)
Where, as here, the repeal of a penal law is total and absolute and the act
with was penalized by a prior law ceases to be criminal under the new
law, the previous offense is obliterated.30 It is a recognized rule in this
jurisdiction that a total repeal deprives the courts of jurisdiction to try,
convict and sentence persons charged with violation of the old law prior
to the repeal.31
With the enactment of R.A. No. 7636, the charge of subversion against
the accused-private respondent has no more legal basis and should be
dismissed.
As regards the other charge of illegal possession of firearm and
ammunition, qualified by subversion, this charge should be amended to
simple illegal possession of firearm and ammunition since, as earlier
discussed, subversion is no longer a crime.
Moreover, the offense of simple illegal possession of firearm and
ammunition is now bailable under Republic Act No. 8294 which was
enacted on June 6, 1997. R.A. No. 8294 has amended Presidential
Decree No. 1866, as amended, by eliminating the provision in said P.D.
that if the unlicensed firearm is used in furtherance of subversion, the
penalty of death shall he imposed.32 Under the new law (R.A. No. 8294),
the penalty prescribed for simple illegal possession of firearm (.38
caliber) is now reduced to prision correccional in its maximum period
and a fine of not less than Fifteen thousand pesos (P15,000.00).33 The
reduced penalty of imprisonment — which is four (4) years, two (2)
months and one (1) day to six (6) years — entitles the accused-private
respondent to bail. Considering, however, that the accused-private
respondent has been detained since his arrest on June 5, 1990 up to the
present (as far as our record has shown), or more than seven (7) years
now, his immediate release is in order. This is so because even if he were
convicted for illegal possession of firearm and ammunition, the length of
his detention while his case is pending has already exceeded the penalty
prescribed by the new law.
WHEREFORE, the assailed decision of the Court of Appeals dated May
27, 1991, in CA-G.R. SP No. 24273, including the orders dated October
12, 1990 and December 28, 1990 of the Regional Trial Court of Makati
(Branch 148), National Capital Region, in Criminal Case No. 1789, are
hereby REVERSED and SET ASIDE.
The subversion charge against accused-private respondent Antonio A.
Tujan in Criminal Case No. 64079 of the Regional Trial Court of Manila,
Branch 45, is hereby DISMISSED.
The other Information for illegal possession of firearm and ammunition 22 See Misolas vs. Panga, et al., G.R. No. 83341 [En Banc],
in furtherance of subversion against the same accused in Criminal Case January 30, 1990, 181 SCRA 648.
No. 1789 of the Regional Trial Court of Makati, Branch 148, is 23 Ibid., p. 655.
DEEMED AMENDED to Simple Illegal Possession of Firearm and 24 Gaspar vs. Sandiganbayan, 144 SCRA 416.
Ammunition. The accused-appellant is hereby ordered RELEASED 25 People vs. Obsania, 132 Phil. 782, 788; People vs. Santiago,
IMMEDIATELY from detention for the reason stated above, unless he is 174 SCRA 143; Ada vs. Virola, 172 SCRA 336; People vs.
being detained for any other offense. Pineda, 219 SCRA 1; People vs. Vergara, 221 SCRA 560; Paulin
This decision is IMMEDIATELY EXECUTORY. vs. Gimenez, 217 SCRA 386.
No pronouncement as to costs. 26 Article 22, Revised Penal Code.
SO ORDERED. 27 See People vs. Simon, G.R. No. 93028, July 29, 1994 (En
Narvasa, C.J., Regalado, Davide, Jr., Romero, Bellosillo, Melo, Puno, Banc); 234 SCRA 5555, 570-571, citing People vs. Moran, et al.,
Vitug, Kapunan, Mendoza, Panganiban, Quisumbing and Purisima, JJ., 44 Phil. 387 [1923].
concur. 28 People vs. Tamayo, 61 Phil. 225, 227 [1935].
Footnotes 29 Ibid.
1 Penned by then Associate Justice Justo P. Torres, Jr. and 30 Ibid.
concurred in by then Associate Justice Ricardo J. Francisco and 31 People vs. Sindiong, et al., 77 Phil. 1000; People vs. Jacinto,
Associate Justice Consuelo Ynares-Santiago; Annex "N," O.G., November 17, 1958, p. 7585, 7587.
Petition; Rollo, pp. 95-106. 32 Section 1, par. 3, P.D. No. 1866, as amended.
2 Annexes "E" & "E-1," Petition; Rollo, pp. 32-38. 33 Section 1, par. 1, R.A. No. 8294.
3 Rollo, p. 39.
4 Annexes "E" & E-1," supra.
5 Ibid.
6 Annex "N," Petition; Rollo, pp. 98-99.
7 Annex "B," Petition; Rollo, p. 27.
8 Annex "C," Petition; Rollo, p. 28.
9 Annex "D," Petition; Rollo, p. 31.
10 Annex "E," Petition; Rollo, p. 32.
11 Rollo, p. 33.
12 Ibid., p. 34.
13 Annex "G," Petition; Rollo, p. 41.
14 Rollo, p. 43.
15 Rollo, p. 43.
16 Annex "H," Petition; Rollo, p. 45.
17 Annex "H," Petition; Rollo, pp. 48-50.
18 Annex "I," Petition; Rollo, p. 51.
19 Annex "J," Petition; Rollo, p. 55.
20 Rollo, p. 99.
21 See Tangan vs. People, et al., No. L-73963, November 5,
1987, 155 SCRA 435, 444.
G.R. No. 166401 October 30, 2006
[Formerly G.R. Nos. 158660-67]
PEOPLE OF THE PHILIPPINES, appellee,
vs.
ALFREDO BON, appellant.
DECISION
TINGA, J.:
Two critical issues emerge in this case. The first relates to whether the
Court should affirm the conviction of appellant Alfredo Bon (appellant)
for six counts of rape and two counts of attempted rape, the victims
being his then-minor nieces. On that score, we affirm. As a consequence
though, we are ultimately impelled to confront a question much
broader in both scope and import. While the Court had previously
declined to acknowledge the constitutional abolition of the death
penalty through the 1987 Constitution,1 we now find it necessary to
determine whether the enactment of Republic Act No. 9346 resulted in
the statutory interdiction of the death penalty.
The second issue arises as we are compelled to review the maximum
term of reclusion temporal in the sentence imposed on appellant by the
Court of Appeals for the two counts of attempted rape. The sentence was
prescribed by the appellate court prior to the enactment of Republic Act
No. 9346 which ended the imposition of the death penalty in the
Philippines. The proximate concern as to appellant is whether his penalty
for attempted qualified rape, which under the penal law should be two
degrees lower than that of consummated qualified rape, should be
computed from death or reclusion perpetua.
First, the antecedent facts.
I.
2
Eight (8) Informations were filed within the period from 21 August
2000 to 23 February 2001 by the Assistant Provincial Prosecutor of
Gumaca, Quezon against appellant, charging him with the rape of
AAA3 and BBB,4 the daughters of his older brother. Appellant was
accused of raping AAA in Criminal Case Nos. 6899-G, 6902-G, 6906-G,
and 6908-G; while he was accused of raping BBB in Criminal Case Nos.
6689-G, 6903-G, 6905-G, and 6907-G.5All these cases were
consolidated for trial. The rapes were alleged to have been committed in
several instances over a span of six (6) years.
Both AAA and BBB testified against appellant, their uncle, and both
identified him as the man who had raped them. During trial, their
respective birth certificates and the medical certificates executed by the
doctor who physically examined them were entered as documentary
evidence.
AAA testified that she was only six (6) years old when she was first
molested in 1994 in the house appellant had shared with her
grandmother.6 She recounted that the incident took place when she and
appellant were alone in the house. Appellant touched her thighs and
vagina, removed her clothes and inserted his penis into her vagina.
Appellant threatened that she and her parents would be killed should she
disclose the incident to anyone. She thereafter stopped sleeping in the
house of her grandmother. It was only three (3) years after, in 1997, that
she slept in the said house, yet again she was sexually abused by
appellant. She was then nine (9) years old.7
AAA recounted that at age eleven (11) in 1999, she was raped by
appellant for the third time, again at the house of her grandmother.8 The
following year, when she was twelve (12), she was abused for the fourth
time by appellant. This time, she was raped in an outdoor clearing9 after
having been invited there by appellant to get some vegetables. While at
the clearing, appellant forced her to lie down on a grassy spot and tried to
insert his penis in her vagina. As she cried in pain, appellant allegedly
stopped.10
It was only on 12 June 2000 that she decided to reveal to her mother,
CCC,11 the brutish acts appellant had done to her.12 Her mother thus filed
a complaint against her uncle. AAA identified appellant in open court
and presented as documentary evidence her birth certificate to prove that
she was born on 3 September 1988.13
BBB, on the other hand, testified that she was first raped by appellant in
1997 when she was ten (10) years old, also at the house appellant shared
with her grandmother. While alone in the house, appellant poked a knife
at her, removed her clothes and inserted his penis in her vagina. Despite
the pain she felt, she could not resist appellant as he was holding a knife.
She did not report the rape to her parents out of fear of appellant's threat
that he would kill her.14 BBB further testified that in 1998 and 1999, she
was raped again by appellant on several occasions, the rapes occurring
under threat of a bladed weapon, and regardless of the time of day.15
BBB stated that she was last raped by appellant on 15 January
2000.16 On that night, she was sleeping beside her sister AAA in the
house of her grandmother when she felt appellant touching her body. She
pushed him away but appellant pulled her three (3) meters away from
AAA towards the door. As appellant was holding a knife, BBB could not
make any noise to alert her sister. Appellant ordered her to remove her
clothes and forced her to lie down. After he took off his clothes,
appellant placed himself on top of BBB and stayed there for three (3)
minutes "moving up and down." Thereafter, she put on her clothes and
returned to where her sister was. She added that although it was dark, she
knew it was appellant who had molested her as she was familiar with his
smell. Since then, she never slept in her grandmother's house again.17
It was on 14 June 2000 that BBB disclosed her harrowing experience to
her mother. Prior to that, however, she had already revealed the sexual
abuses she had underwent to her sister AAA. Upon learning of the same,
her mother brought her to the police station and her statement was taken.
Thereafter, she was brought to the hospital to be examined. Furthermore,
BBB explained that she only reported the abuses done to her on 14 June
2000 or five (5) months after the last rape because she was afraid of
appellant's threat of killing her and her family.18
The third witness for the prosecution was the mother, CCC. She testified
that she only knew of the abuses done on her daughters on 15 June 2000.
Five months earlier, CCC became concerned after observing that BBB,
on the pretext of preparing clothes for a game, was packing more than
enough clothes. She asked her other daughter, DDD, to dig into the
matter and the latter told her that BBB was planning to leave their house.
Upon learning this, she sent somebody to retrieve BBB. However, it was
only five months after that incident that BBB confided to her mother that
she was raped by appellant. CCC lost no time in reporting the matter to
the authorities and had BBB and AAA examined in the hospital. After
examination, it was confirmed that BBB was indeed sexually molested.19
CCC initially did not tell her husband about what had happened to their
daughters because she was afraid that her husband might kill appellant. It
was only after appellant was arrested that she disclosed such fact to her
husband. After the arrest of appellant, his relatives became angry at
CCC, and her mother-in-law avoided talking to her since then.20
The physician who examined BBB and AAA also testified for the
prosecution. Dr. Purita T. Tullas (Dr. Tullas), medical officer of Gumaca
District Hospital, testified that she was the one who examined BBB and
AAA, and thereafter, issued medical certificates for each child. These
medical certificates were presented in court.21
The medical certificate of BBB revealed that at the time of examination,
there were no external sign of physical injury found on her body.
However, Dr. Tullas found that the labia majora and minora of BBB
was slightly gaping, her vaginal orifice was admitting two fingers
without resistance and there were hymenal lacerations at "three (3)
o'clock" and "eight (8) o'clock" which might have happened a long time
before her examination. Dr. Tullas concluded that there might have been
sexual penetration caused by a male sex organ for several times.22
AAA's medical certificate stated that at the time of examination, there
were no external physical injuries apparent on her body. AAA's labia
majora and minora were well coaptated and the hymen was still intact.
On direct examination, Dr. Tullas said that it could happen that the
hymen would still be intact despite sexual penetration with a person
having an elastic hymen. On the other hand, when asked on cross-
examination, she stated that there was also the possibility that no foreign
body touched the labia of the pudendum of AAA.23
Only appellant testified for his defense, offering denial and alibi as his
defense. He averred in court that from 1994 to 2000, he lived in the
house of his parents which was about "thirty (30) arm stretches" away
from the house of BBB and AAA. He denied having raped BBB on 15
January 2000 because on said date he was at the house of his sister, two
(2) kilometers away from the house of his parents where the rape
occurred, from 11:30 in the morning and stayed there until early morning
of the following day.24
He offered a general denial of the other charges against him by BBB and
AAA. He claimed that he seldom saw the two minors. He further
asserted that prior to the institution of the criminal case against him he
had a smooth relationship with his nieces and the only reason the case
was filed against him was that CCC, his sister-in-law and the mother of
his nieces, harbored ill-feelings towards his deceased father, who would
call CCC "lazy" within earshot of other family members.25
The RTC convicted appellant on all eight (8) counts of rape.26 The RTC
pronounced appellant's defense of denial and alibi as unconvincing,
citing jurisprudence declaring denial and alibi as intrinsically weak
defenses. The RTC concluded that appellant failed to controvert the
clear, candid and straightforward testimonies of his nieces. It further
considered the qualifying circumstances of minority of the victims and
the relationship of the victims and appellant, the latter being the former's
relative by consanguinity within the third degree.
As the penalty imposed consisted of eight (8) death sentences, the
records of the case were automatically elevated to this Court for review.
However, in the aftermath of the pronouncement of the Court in People
v. Mateo27 the present case was transferred to the Court of Appeals for
appropriate action and disposition.
On 29 December 2004, the Court of Appeals agreed with the rulings of
the RTC in regard to six (6) of the eight (8) death sentences imposed on
appellant.28 The appellate court ratiocinated, thus:
We have painstakingly gone over the record of these cases and
find no cogent reason to deviate from the findings of the trial
court except in at least two (2) cases. The prosecution's case
which was anchored mainly on the testimonies of private
complainants [BBB] and [AAA], deserve full faith and credit for
being clear, precise and straightforward. Like the trial court, We
find no reason to disbelieve the private complainants. It was
established with certitude that the accused on several occasions
sexually assaulted his nieces. The perpetration of the crimes and
its authorship were proved by the victims' candid and unwavering
testimonies both of whom had the misfortune of sharing the same
fate in the hands of their own uncle. The sincerity of [AAA] was
made more evident when she cried on the witness stand in
obvious distress over what their uncle had done to her and her
sister.29
The Court of Appeals downgraded the convictions in Criminal Case Nos.
6906 and 6908 to attempted rape. In these two (2) cases, it was alleged
that appellant had raped AAA in 1999 and on 11 June 2000, respectively.
According to the appellate court, it could not find evidence beyond
reasonable doubt in those two (2) cases that appellant had accomplished
the slightest penetration of AAA's vagina to make him liable for
consummated rape. It stressed that there was not even moral certainty
that appellant's penis ever touched the labia of the pudendum, quoting
portions of the transcript of the stenographic notes where AAA was
asked if appellant was then successful in inserting his penis into her
vagina and she answered in the negative.30 Accordingly, the Court of
Appeals reduced the penalties attached to the two (2) counts of rape from
death for consummated qualified rape to an indeterminate penalty of ten
(10) years of prision mayor, as minimum, to seventeen (17) years and
four (4) months of reclusion temporal, as maximum, for attempted rape.
Appellant, in his Supplemental Brief31 before this Court, assails the
findings of the Court of Appeals. He cites inconsistencies in the
testimony of BBB as to what really transpired on 15 January 2000.
Particularly, appellant observes that BBB testified on 6 June 2001 as to
her rape on 15 January 2000. BBB, her sister and appellant had been
sleeping side by side. However, when BBB again testified on 3 July
2002, this time she stated that on that night, as she and her sister AAA
were sleeping in their room at their parents' house (and not at her
grandmother's), the accused passed through a window, entered their
room and raped her again.32 Appellant also latches on the inconsistencies
in BBB's testimony as to the length of the duration of her rape on that
day. In BBB's testimony on 6 June 2001, she said that appellant was atop
her for three (3) minutes while in the 3 July 2002 hearing, BBB stated
that the rape lasted for only half a minute.
It must be observed though that BBB was at a tender age when she was
raped in 2001. Moreover, these inconsistencies, which the RTC and the
Court of Appeals did not consider material, were elicited while BBB was
testifying in open court. Our observations in People v. Perez33 on the
appreciation of alleged inconsistencies in the testimony of rape victims
who happen to be minors are instructive, thus:
We note that these alleged inconsistencies refer, at best, only to
trivial, minor, and insignificant details. They bear no
materiality to the commission of the crime of rape of which
accused-appellant was convicted.[34] As pointed out by the
Solicitor General in the Appellee's Brief, the seeming
inconsistencies were brought about by confusion and merely
represent minor lapses during the rape victim's direct examination
and cannot possibly affect her credibility. Minor lapses are to be
expected when a person is recounting details of a traumatic
experience too painful to recall. The rape victim was testifying in
open court, in the presence of strangers, on an extremely intimate
matter, which, more often than not, is talked about in hushed
tones. Under such circumstances, it is not surprising that her
narration was less than letter-perfect.[35] "Moreover, the
inconsistency may be attributed to the well-known fact that a
courtroom atmosphere can affect the accuracy of testimony and
the manner in which a witness answers questions."[36]37
Further, the public prosecutor offered a convincing explanation on why
BBB was confused on some points of her two testimonies. Particularly in
the Memorandum for the People38 filed with the RTC, the public
prosecutor creditably explained the inconsistencies, thus:
[BBB]'s testimony on July 3, 2002 might be contradictory to her
first testimony on June 6, 2001, with respect to the last rape on
January 15, 2000, as regards the place of commission—house of
her parents or house of accused; and the length of time he stayed
on her top – 3 minutes or half-minute. But she remained
consistent in her declaration that on January 15, 2000, her uncle
inserted his penis into her vagina, and he was moving while on
her top then she felt something came out from him. He was able
to rape her because he threatened her with a knife or bladed
weapon. Further, the first she took the witness stand on June 6,
2001, she was made to recall the last rape, the first rape and many
acts of sexual abuses [sic] against her. She was even confused
about her age when she was first raped by her uncle. After she
testified on November 14, 2001, for the separate charges of rapes
in 1997, 1998 and 1999, she was able to recall more clearly the
last rape on January 15, 2000, which happened in her own house.
These noted discrepancies as to the exact place of commission –
accused's house or victim's house – is not an essential element of
the crime of rape and both houses are situated in Brgy. Villa
Padua Ilaya, Gumaca, Quezon, which is within the territorial
jurisdiction of this Honorable Court. x x x 39
In addition, we share the lower court's disbelief of appellant's proffered
defenses of denial and alibi. These two defenses are inherently the
weakest as they are negative defenses. Mere denials of involvement in a
crime cannot take precedence over the positive testimony of the offended
party. For alibi to prosper, it is not enough for the defendant to prove that
he was somewhere else when the crime was committed; he must likewise
demonstrate that it is physically impossible for him to have been at the
scene of the crime at the time.40
In the case at bar, appellant's alibi that he was at his sister's house barely
two (2) kilometers away when the rape took place on 15 January 2000
cannot be given credence by this Court. If we are to thread this line of
reasoning, appellant could have easily left his sister's house in the middle
of the night, raped BBB, and then returned to his sister's house without
much difficulty and without anybody noticing his absence.
Well-settled is the rule that a categorical and positive identification of an
accused, without any showing of ill-motive on the part of the eyewitness
testifying on the matter, prevails over alibi and denial.41 The defenses of
denial and alibi deserve scant consideration when the prosecution has
strong, clear and convincing evidence identifying appellant as the
perpetrator.42 In this case, both BBB and AAA, minors and relatives of
appellant, positively identified him as their rapist in open court. The
lower courts found no issue detracting from the credibility of such
identification.
It is worthy to note that the alibi presented by appellant is limited to the
15 January 2000 rape of BBB. He offers nothing to counteract the
accusations against him involving the seven (7) other specific acts of
rape other than the averment that he did not know anything about the
allegations propounded on him, an infinitesimal defense considering the
evidence against him.
Appellant does claim that the present case was merely instituted because
of the grudge of CCC towards his deceased father. It is outrageous to
even suggest that a mother will subject her daughters to the humiliating
experience of coming before the court and narrating their harrowing
experience just because she was tagged by her father-in-law as lazy. In
addition, CCC's father-in-law had died several years before the criminal
charges against appellant were ever instituted. If CCC truly wanted to
retaliate and damage the reputation of her father-in-law, she could have
done so when the latter was still alive. No member of a rape victim's
family would dare encourage the victim to publicly expose the dishonor
of the family, more specifically if such accusation is against a member of
the family, unless the crime was in fact committed.43
Besides, no sane woman, least of all a child, would concoct a story of
defloration, allow an examination of her private parts and subject herself
to public trial or ridicule if she has not in truth, been a victim of rape and
impelled to seek justice for the wrong done to her. Testimonies of child-
victims are normally given full weight and credit, since when a woman,
more so if she is a minor, says that she has been raped, she says in effect
all that is necessary to show that rape has been committed. Youth and
immaturity are generally badges of truth and sincerity.44 The weight of
such testimonies may be countered by physical evidence to the contrary,
or indubitable proof that the accused could not have committed the rape,
but in the absence of such countervailing proof, these testimonies shall
be accorded utmost value.
The twin aggravating circumstances of minority and relationship were
properly appreciated in this case. The minority of the victims and their
relationship with appellant were aptly established
in the lower court proceedings. Not only did the prosecution allege in the
Informations the ages of the victims when they were raped but the
prosecution also presented the birth certificates of BBB and AAA in
court as documentary evidence to prove that they were both minors when
appellant raped them. Appellant, in open court, also admitted that that he
was the uncle of both victims being the brother of the victims' father, and
thus, a relative of the victims within the third degree of consanguinity.
Furthermore, the delay in reporting the repulsive acts of appellant to
BBB and AAA is understandably justified, considering that appellant
repeatedly threatened to kill them and their family should they disclose
the incidents to anyone. It has been held time and again that delay in
revealing the commission of rape is not an indication of a fabricated
charge.45 Such intimidation must be viewed in light of the victim's
perception and judgment at the time of the commission of the crime and
not by any hard and fast rule. It is enough that the intimidation produces
a fear that if the victim does not yield to the perverse impulses of the
accused, something would happen to her at the moment, or even
thereafter, as when she is threatened with death if she would report the
incident.46
At the same time, we agree with the Court of Appeals that the two counts
of rape in Criminal Case Nos. 6906-G and 6908-G were not proven
beyond reasonable doubt, but only the two separate incidents of
attempted rape.
It is to be noted that there is an attempt to commit rape when the offender
commences its commission directly by overt acts but does not perform
all acts of execution which should produce the felony by reason of some
cause or accident other than his own spontaneous desistance.47 In
Criminal Case No. 6906-G, the records show that there was no
penetration or any indication that the penis of appellant touched the labia
of the pudendum of AAA. This was evident in AAA's testimony at the
hearing on 17 October 2001, to wit:
Q – Do you remember of any unusual incident that happened to
you when you were eleven years old?
A – Yes, Mam. [sic]
Q – What was that?
A – He also touched my vagina and my other private parts and he
inserted also his penis (into) my vagina. [sic]
Q – Was he able to insert his penis into your vagina?
A – No, Mam. [sic]
Q – Why?
A – It was painful, Mam. [sic]
xxxx
Q – How many times did he try to insert his penis into your
vagina?
A – Many times, Mam.48 [sic]
AAA also testified in the same vein in Criminal Case No. 6908-G.
Q – I am now through with Criminal Case No. 6906-G. In
Criminal Case No. 6908-G, also for Rape. When was the last
time that this sexual abuse was committed by your Uncle?
A – June 11, Mam. [sic]
Q – What year?
A – June 11, 2000, Mam. [sic]
xxxx
Q – What did your Uncle do to you on June 11, 2000?
A – He also removed my clothes, Mam. [sic]
Q – And after removing your clothes, what did he do to you?
A – He was trying to insert his penis into my vagina, Mam. [sic]
xxxx
Q – And what did you feel when he was trying to insert his penis
in your vagina?
A – Painful, Mam. [sic]
Q – And what did you do when you feel painful?
A – I cried, Mam. [sic]
Q – When you cried, what did your Uncle do, if any?
A – He did not pursue what he was doing, Mam. [sic]
xxxx
Q – And your Uncle was not able to penetrate his penis to your
vagina?
A – No, Mam.49 [sic]
In downgrading the offense committed and consequently decreasing the
penalty, the CA declared:
It is carnal knowledge, not pain, that is the element to
consummate rape. Indeed pain may be deduced from the sexual
act but accused cannot be convicted of rape by presuming carnal
 knowledge out of pain. It is well-settled that complete penetration
of the penis into the vagina is not necessary to convict for
consummated rape since the slightest penetration of one into the
other will suffice. However, in People v. Campuhan, the term
"slightest penetration" was clarified to mean that there must be
sufficient and convincing proof of the penis indeed touching at
the very least the labias of the female organ. Mere epidermal
contact between the penis and the external layer of the victim's
vagina (the stroking and the grazing of the male organ upon the
female organ or the mons pubis) categorizes the crime as
attempted rape or acts of lasciviousness. There must be positive
proof of even the slightest penetration, more accurately, the
touching of the labias by the penis, before rape could be deemed
consummated. We, therefore, take exception to the finding of the
trial court that when the accused was trying to insert his penis
into the child's vagina, the act proved painful to [AAA,] which
made the accused stop from further executing the act. From the
testimony of private complainant, [AAA] in the afore-numbered
cases, the prosecution failed to demonstrate beyond any shadow
of doubt that accused-appellant's penis reached the labia of the
pudendum of AAA's vagina. There is no basis then to apply the
rule that the introduction of the penis into the aperture of the
female organ (thereby touching the labia of the pudendum)
already consummates the case of rape. x x x 50
It should be added that under Article 6 of the Revised Penal Code, there
is an attempt when the offender commences the commission of a felony
directly by overt acts, and does not perform all the acts of execution
which should produce the felony by reason of some cause or accident
other than his own spontaneous desistance. In the crime of rape,
penetration is an essential act of execution to produce the felony. Thus,
for there to be an attempted rape, the accused must have commenced the
act of penetrating his sexual organ to the vagina of the victim but for
some cause or accident other than his own spontaneous desistance, the
penetration, however slight, is not completed.51
The Court thus affirms the conclusions of the Court of Appeals that it
has been established beyond reasonable doubt that appellant is guilty of
six (6) counts of rape and two (2) counts of attempted rape. However, in
light of Rep. Act No. 9346, the appropriate penalties for both crimes
should be amended.
II.
We shall not dwell at length on the proper penalty imposable on
appellant for the six (6) counts of rape. The sentence of death imposed
by the RTC and affirmed by the Court of Appeals can no longer be
affirmed in view of Rep. Act No. 9346, titled "An Act Prohibiting the
Imposition of Death Penalty in the Philippines." Section 2 of the law
mandates that in lieu of the death penalty, the penalty of reclusion
perpetua shall be imposed. Correspondingly, the Court can no longer
uphold the death sentences imposed by lower courts, but must, if the
guilt of the accused is affirmed, impose instead the penalty of reclusion
perpetua, or life imprisonment when appropriate. Since the passage of
Rep. Act No. 9346, the Court has had occasion to effectuate such
reduction in recent cases such as People v. Tubongbanua52 and People v.
Cabalquinto.53
III.
The question of what should be the appropriate penalty for the two (2)
counts of attempted rape proves to be the more challenging but
interesting question facing the Court.
The Court of Appeals had sentenced appellant, for the attempted rape of
AAA, to "an indeterminate penalty of ten (10) years of prision mayor, as
minimum, to seventeen (17) years and four (4) months of reclusion
temporal as maximum," for each count of attempted rape. There is no
doubt as to the validity of this sentence at the time it was meted prior to
the enactment of Rep. Act No. 9346. Article 51 of the Revised Penal
Code establishes the penalty to be imposed upon the principals of an
attempted felony:
ART. 51. xxx — A penalty lower by two degrees than that
prescribed by law for the consummated felony shall be imposed
upon the principals in an attempt to commit a felony.54
What is the penalty "lower by two degrees than that prescribed by law"
for attempted rape? Article 266-B of the Revised Penal Code, which
incorporates the amendments introduced by Rep. Act No. 8353,
prescribes:
The death penalty shall also be imposed if the crime of rape is
committed with any of the following aggravating/qualifying
circumstances:
1. When the victim is under eighteen (18) years of age and the
offender is a parent, ascendant, step-parent, guardian, relative by
 consanguinity or affinity within the third civil degree, or the
common law spouse of the parent of the victim. x x x55
The prescribed penalty for the consummated rape of a victim duly
proven to have been under eighteen years of age and to have been raped
by her uncle, is death under Article 266-B of the Revised Penal Code.
The determination of the penalty two degrees lower than the death
penalty entails the application of Articles 61 and 71 of the Revised Penal
Code:
Art. 61. Rules of graduating penalties.—For the purpose of
graduating the penalties which, according to the provisions of
Articles 50 to 57, inclusive, of this Code, are to be imposed upon
persons guilty as principals of any frustrated or attempted felony,
or as accomplices or accessories, the following rules shall be
observed:
1. When the penalty prescribed for the felony is single and
indivisible, the penalty next lower in degree shall be that
immediately following that indivisible penalty in the respective
graduated scale prescribed in Article 71 of this Code.56
xxxx
Article 71 of the Revised Penal Code (Article 71) warrants special
attention, crucial as it is to our disposition of this question. The provision
reads:
Art. 71. Graduated scales. — In the case in which the law
prescribes a penalty lower or higher by one or more degrees than
another given penalty, the rules prescribed in Article 61 shall be
observed in graduating such penalty.
The lower or higher penalty shall be taken from the graduated
scale in which is comprised the given penalty:
The courts, in applying such lower or higher penalty, shall
observe the following graduated scales:
SCALE NO. 1
1. Death
2. Reclusion perpetua
3. Reclusion temporal
4. Prision mayor
5. Prision correctional
6. Arresto mayor
7. Destierro
8. Arresto menor
9. Public censure
10. Fine57
xxxx
Following the scale prescribed in Article 71, the penalty two degrees
lower than death is reclusion temporal, which was the maximum penalty
imposed by the Court of Appeals on appellant for attempted rape.
Reclusion temporal is a penalty comprised of three divisible periods, a
minimum, a medium and a maximum.
At the same time, the Indeterminate Sentence Law prescribes that "the
court shall sentence the accused to an indeterminate sentence, the
maximum term of which shall be that which, in view of the attending
circumstances, could be properly imposed under the rules of the said
Code, and the minimum which shall be within the range of the penalty
next lower to that prescribed by the Code for the offense." The purpose
of the prescription of minimum and maximum periods under the
Indeterminate Sentence Law is to effect the privilege granted under the
same law, for prisoners who have served the minimum penalty to be
eligible for parole per the discretion of the Board of Indiscriminate
Sentence.58 Thus, convicts sentenced to suffer death penalty or life-
imprisonment are ineligible under that law, as are persons sentenced
to reclusion perpetua, an indivisible penalty without minimum or
maximum periods.59
Hence, the Court of Appeals sentenced appellant to suffer the penalty for
attempted rape, with a maximum penalty within the range of reclusion
temporal, and a minimum penalty within the range of the penalty next
lower, or prision mayor. If Rep. Act No. 9346 had not been enacted, the
Court would have affirmed such sentence without complication.
However, the enactment of the law has given rise to the problem
concerning the imposable penalty. Appellant was sentenced to a
maximum term within reclusion temporal since that is the penalty two
degrees lower than death. With the elimination of death as a penalty,
does it follow that appellant should now be sentenced to a penalty two
degrees lower than reclusion perpetua, the highest remaining penalty
with the enactment of Rep. Act No. 9346? If it so followed, appellant
would be sentenced to prision mayor in lieu of reclusion temporal.
IV.
Obviously, our ruling on the appropriate penalty on appellant for
attempted rape will affect not only appellant, but several classes of
convicts as well. Before we proceed with the discussion, the Court finds
it necessary to make the following qualification.
Prior to the enactment of Rep. Act No. 9346, the death penalty was
imposable under two different frames of reference. This was especially
made clear with the 1993 amendments to the Revised Penal Code
through Rep. Act No. 7659, or the Death Penalty Law. Under the
Revised Penal Code, as amended, the death penalty was provided for in
two ways, namely: as the maximum penalty for "reclusion perpetua to
death," and death itself as an automatic and exclusive penalty. Death as
the automatic penalty was mandated for the crimes of qualified bribery
"if it is the public officer who asks or demands such gift or
present;"60 kidnapping or detention "for the purpose of extorting ransom
from the victim or any other person;"61 destructive
arson wherein "death results;"62 and rape qualified by any of the several
circumstances enumerated under the law.
On the other hand, the penalty of "reclusion perpetua to death" was
imposable on several crimes, including murder,63 qualified piracy,64 and
treason.65 The imposition of the death penalty for crimes punishable by
"reclusion perpetua to death" depended on the appreciation of the
aggravating and mitigating circumstances generally outlined in Articles
13 and 14 of the Revised Penal Code. Reference to those two provisions
was unnecessary if the penalty imposed was death, as opposed to
"reclusion perpetua to death."
There is no need for now to discuss the effects of Rep. Act No. 9346 on
the penalties for frustrated and attempted felonies which were punishable
by "reclusion perpetua to death" if consummated, or on accomplices and
accessories to such felonies. Such situations do not relate to the case of
appellant, who was convicted of two (2) counts of attempted rape, which,
if consummated, of course would have carried prior to the enactment of
Rep. Act 9346 the penalty of death, and not "reclusion perpetua to
death."
The Court also recognizes that the graduation of penalties reckoned from
"reclusion perpetua to death" differs from that based on the exclusive
penalty of death. For example, it has been held that the penalty two
degrees lower than "reclusion perpetua to death" is prision mayor.66 In
contrast, the Court has likewise held that for qualified rape in the
attempted stage, "the penalty x x x two (2) degrees lower than the
imposable penalty of death for the offense charged x x x is reclusion
temporal."67 In People v. Tolentino,68 we ruled that the accused, who had
been sentenced to die for the rape of his nine (9)-year old stepdaughter,
was guilty only of attempted rape. In explaining that "reclusion
temporal" was the proper penalty, the Court, through then Chief Justice
Davide, explained:
Under Article 51 of the Revised Penal Code, the penalty for an
attempted felony is the "penalty lower by two degrees than that
prescribed by law for the consummated felony." In this case, the
penalty for the rape if it had been consummated would have been
death, pursuant to Article 335 of the Revised Penal Code, as
amended by R.A. No. 7659, since [RT69] was eight years old and
TOLENTINO was the common-law spouse of [RT's] mother.
The last paragraph thereof provides:
The death penalty shall also be imposed if the crime of
rape is committed with any of the following attendant
circumstances:
1. When the victim is under eighteen (18) years of age
and the offender is a parent, ascendant, step-parent,
guardian, relative by consanguinity or affinity within the
third civil degree, or the common-law spouse of the
parent of the victim.
xxxx
The penalty in this case should have been reclusion temporal,
which is the penalty lower by two degrees than death. However,
with the application of the Indeterminate Sentence Law,
TOLENTINO may be sentenced to an indeterminate
imprisonment penalty whose minimum shall be within the range
of prision mayor and whose maximum shall be within the range
of reclusion temporal in its medium period pursuant to Article 64
(1) of the Revised Penal Code.70
This dichotomy results from the application of Article 61 of the Revised
Penal Code. Both reclusion perpetua and death are indivisible penalties.
Under Article 61 (2) of the Revised Penal Code, "[w]hen the penalty
prescribed for the crime is composed of two indivisible penalties … the
penalty next lower in degree shall be that immediately following the
lesser of the penalties prescribed in the respective graduated scale."
Hence, in passing sentence on those convicted of attempted felonies
which warranted the penalty of "reclusion perpetua to death" if
consummated, the Court has consistently held that penalty two degrees
lower than "reclusion perpetua to death" is prision mayor. In contrast, if
the penalty for the consummated crime is the single indivisible penalty
of death, as was prescribed for several crimes under Rep. Act No. 7659,
Article 61(1) of the Revised Penal Code provides that "the penalty
prescribed for the felony is single and indivisible, the penalty next lower
in degree shall be that immediately following that indivisible penalty in
the respective graduated scale prescribed in Article 71". Thus, the proper
penalty two degrees lower than death is reclusion temporal.
It is also for this reason that the controversy we are now addressing did
not similarly arise after the enactment of the 1987 Constitution, which
prohibits the imposition of the death penalty subject to its subsequent
readoption at the choice of Congress. Generally, the highest penalty
imposed under the Revised Penal Code was "reclusion perpetuato
death," a penalty composed of two indivisible penalties. As a result, the
Court had no occasion, after the passage of the 1987 Constitution, to
consider the effect of the charter on penalties downgraded from a single
indivisible penalty. It was under Rep. Act No. 7659, passed in 1993, that
some commonly occurring crimes, such as qualified rape and kidnapping
for ransom, were penalized with the single indivisible penalty of death.
The discussion for purposes of this decision will only center on crimes,
such as qualified rape as defined in the Revised Penal Code, as amended,
for which the imposable penalty was death alone. Thus, our ruling will
bear no direct effect on the sentencing of accomplices and accessories or
persons guilty of the attempted or frustrated stage of felonies for which
the imposable penalty was "reclusion perpetua to death."
Hence, it should be understood that any reference forthwith to the
penalty of death does not refer to the penalty of "reclusion
perpetua to death."
V.
If there was a clear intent in Rep. Act No. 9346 to downgrade the
penalties for convicts whose sentences had been graduated beginning
from death pursuant to Article 71, the Court would not hesitate to
enforce such downgrading based on clear statutory intent. However,
nothing in Rep. Act No. 9346 expressly refers to those penalties imposed
on frustrated or attempted felonies, or on accessories and accomplices.
Section 1 of Rep. Act No. 9346 bears examination:
Section 1. The imposition of the penalty of death is hereby
prohibited. Accordingly, Republic Act No. Eight Thousand One
Hundred Seventy-Seven (R.A. No. 8177), otherwise known as
the Act Designating Death by Lethal Injection, is hereby
repealed. Republic Act No. Seven Thousand Six Hundred Fifty-
Nine (R.A. No. 7659), otherwise known as the Death Penalty
Law, and all other laws, executive orders and decrees, insofar as
they impose the death penalty are hereby repealed or amended
accordingly.
If the penalties for attempted rape of a minor,71 among others, were
deemed to have been amended by virtue of Rep. Act No. 9346, such
amendment can be justified under the ambit of the repealing clause,
which reads, "all other laws, executive orders and decrees, insofar as
they impose the death penalty are hereby repealed or amended
accordingly." While this clause may, given its breadth, initially impress
as the nature of a general repealing clause, it is in actuality an express
repealing clause. Section 1 specifically repeals all laws, executive orders
and decrees insofar as they impose the death penalty, and not merely
such enactments which are inconsistent with Rep. Act No. 9346.
Section 1 arguably presents more problems in that regard with its
utilization of the particular phrase "insofar as they impose the death
penalty." We can entertain two schools of thought in construing this
provision, both of them rooted in literalist interpretations. First, it can be
claimed that the present application of the penalties for attempted rape of
a minor (among many examples) does not "impose the death penalty,"
since none of the convicts concerned would face execution through the
application of the penalty for attempted rape. Hence, the statutory
provisions enforced in determining the penalty for attempted rape, or
other crimes not punishable by death, are not amended by Rep. Act No.
9346.
On the other hand, the operation of the provisions imposing the penalty
for attempted rape of a minor necessarily calls for the application, if not
its literal imposition, of death as a penalty, in the context of applying the
graduated scale of penalties under Article 71 of the Revised Penal Code.
If we were to construe "impose" as to mean "apply," then it could be
argued that Article 71 was indeed amended by Rep. Act No. 9346. After
all, the application of Article 71 to crimes such as attempted rape of a
minor call for the actual operation of the death penalty not only in
theory, but as a means of determining the proper graduated penalty.
On face value, the attractive worth of the firstly offered line of thinking
is enhanced by its innate conservatism, limiting as it would the effects of
Rep. Act No. 9346. It also can be understood if confronted with the
option of employing either a liberal or a conservative construction, there
is a natural tendency to employ the conservative mode. Further, the
reasoning is seemingly consistent with that employed by the Court
in People v. Muñoz,72 a decision which will be thoroughly analyzed in
the course of this discussion.
If the true intent of Rep. Act No. 9346 was to limit the extent of the
"imposition" of the death penalty to actual executions, this could have
been accomplished with more clarity. For example, had Section 1 read
instead "insofar as they sentence an accused to death," there would have
been no room for doubt that only those statutory provisions calling for
actual executions would have been repealed or amended. The inability of
Congress to shape the repealing clause in so specific a fashion does leave
open the question whether Congress did actually intend to limit the
operation of Rep. Act No. 9346 to actual executions only.
But let us for now test that premise by assuming for the nonce that the
legislative intent of Rep. Act No. 9346 was to limit the prohibition of the
law to the physical imposition of the death penalty, without extending
any effect to the graduated scale of penalties under Article 71 of the
Revised Penal Code.
VI.
There are troubling results if we were to uphold, based on legislative
intent, the interpretation of Rep. Act No. 9346 that limits its effects only
to matters relating to the physical imposition of the death penalty.
Illustrations are necessary. The easy demonstration of iniquitous results
is in the case of accomplices. Under Article 267 of the Revised Penal
Code, as amended, kidnapping for ransom was punishable by death. Let
us say X and Y were tried for the crime. X was charged as a principal for
having directly participated in the kidnapping. Y was charged as an
accomplice for having allowed X to use his house to detain the victim,
even though Y was abroad at the time of the crime and otherwise had no
other participation therein. Both X and Y were convicted by final
judgment. Since X could no longer be meted the death penalty, he is
sentenced instead to reclusion perpetua. Ordinarily, Y as an accomplice
should receive the penalty next lower in degree, or reclusion temporal.
Yet following the "conservative" interpretation of Rep. Act No. 9346, the
graduation of penalties remains unaffected with the enactment of the new
law. Thus, under Article 71, which would still take into account the
death penalty within the graduated scale, Y, as an accomplice, would be
sentenced to reclusion perpetua, the same penalty as the principal.
It might be countered that part of the legislative intent of Rep. Act No.
9346, by retaining the graduated scale of penalties under Article 71, was
to equalize the penalties of principals and accomplices for crimes
previously punishable by death. We do not doubt that the legislature has
the theoretical capability to amend the penal law in such fashion. Yet
given the drastic effects of equalizing the penalties for principals and
accomplices, a step that runs contrary to entrenched thought in criminal
law, one could reasonably assume that a legislature truly oriented to
enact such change would have been candid enough to have explicitly
stated such intent in the law itself. Of course, nothing in Rep. Act No.
9346, either in the caption or in the provisions, explicates the intention to
equalize the penalties for principals and accomplices in any crime at all.
Moreover, it cannot be denied that it would, at bare minimum, seem
strange that the penalties for principals and accomplices are equalized in
some crimes, and not in others. Let us return to our previous example of
X and Y, but this time, assume that they were charged for simple
kidnapping, with no qualifying circumstance that would have resulted in
the imposition of the death penalty. Since the crime is not punishable by
death, Rep. Act No. 9346 would have no effect in the imposition of the
penalty for simple kidnapping. Accordingly, X would have been
sentenced to reclusion perpetua as the principal, while Y would have
been sentenced to reclusion temporal as an accomplice.
Since simple kidnapping is a comparatively lighter crime than
kidnapping for ransom, the lesser penalties are justified. Since Y was
merely an accomplice to the crime of simple kidnapping, the imposition
on him of a lighter penalty than X is in accord with the Revised Penal
Code and established juridical and legal thought. Less justifiable would
be the notion that in kidnapping for ransom, the principal and the
accomplice would receive the same penalty, while in simple kidnapping,
the principal suffers a higher penalty than the accomplice. Frankly, there
is no rational explanation for such a disparity, and no legal justification
other than the recognition that Congress has the power to will it so.
Admittedly, the impact of Rep. Act No. 9346 is less dramatic in relation
to frustrated and attempted felonies which were punishable by death if
consummated. The consummated felony previously punishable by death
would now be punishable by reclusion perpetua. At the same time, the
same felony in its frustrated stage would, under the foregoing premise in
this section, be penalized one degree lower from death, or also reclusion
perpetua. It does not seem right, of course, that the same penalty
of reclusion perpetua would be imposed on both the consummated and
frustrated felony. However, the anomaly would be mainly in theory, as
we recognize that those felonies previously punishable by death are
improbable of commission in their frustrated stage, unlike several
felonies punishable by "reclusion perpetua to death,"73 such as murder,
which may be frustrated.
Still, it cannot be denied that these felonies previously punishable by
death are capable of commission in their attempted stages and that the
Revised Penal Code provides that the penalty for attempted felonies is "a
penalty lower by two degrees than that prescribed by law for the
consummated felony." The Court has thus consistently
imposed reclusion temporal, the penalty two degrees lower than death,
as the maximum term for attempted felonies which, if consummated,
would have warranted the death penalty.74 If it were to be insisted that
Rep. Act No. 9346 did not affect at all the penalties for attempted
felonies, then those found guilty of the subject attempted felonies would
still be sentenced to reclusion temporal, even though the "penalty lower
by two degrees than that prescribed by law for the consummated felony"
would now be prision mayor.
It should be pointed out that the interpretation of Rep. Act No. 9346 that
would sanction a penalty for some attempted felonies that is only one
degree lower than the consummated crime would, again, be
disharmonious and inconsistent with the Revised Penal Code and
established thought in criminal law. Conceding again that the legislature
has the discretion to designate the criminal penalties it sees fit, a regime
that foists a differential theoretical basis for the punishment of different
attempted felonies resulting in discriminatory penalties is not only
irrational but also, to say the least, highly suspect. Considering that
physical liberties are at stake, it would be a most cruel joke if such
discriminatory effects ensued not from deliberate legislative will, but
from oversight.
VII.
The implementation of Rep. Act No. 9346 in a way that leaves extant the
penalties for accomplices, accessories, frustrated and attempted felonies,
clearly results in illogical, iniquitous and inconsistent effects. In contrast,
no similar flaws ensue should we construe Rep. Act No. 9346 instead as
not having barred the application of the death penalty even as a means of
depreciating penalties other than death. In particular, the operative
amendment that would assure the integrity of penalties for accomplices,
accessories, frustrated and attempted felonies lies in Article 71, which
ranks "death" at the top of the scale for graduated penalties.
Simply put, the negation of the word "death" as previously inscribed in
Article 71 will have the effect of appropriately downgrading the proper
penalties attaching to accomplices, accessories, frustrated and attempted
felonies to the level consistent with the rest of our penal laws. Returning
to our previous examples, Y, the convicted accomplice in kidnapping for
ransom, would now bear the penalty of reclusion temporal, the penalty
one degree lower than that the principal X would bear (reclusion
perpetua). Such sentence would be consistent with Article 52 of the
Revised Penal Code, as well as Article 71, as amended, to remove the
reference to "death." Moreover, the prospect of the accomplice receiving
the same sentence as the principal, an anomalous notion within our penal
laws, would be eliminated. Thus, the same standard would prevail in
sentencing principals and accomplices to the crime of kidnapping in
ransom, as that prescribed to the crime of simple kidnapping.
The harmonization that would result if Rep. Act No. 9346 were
construed as having eliminated the reference to "death" in Article 71
would run across the board in our penal laws. Consistent with Article 51
of the Revised Penal Code, those convicted of attempted qualified rape
would receive the penalty two degrees lower than that prescribed by law,
now Rep. Act No. 9346, for qualified rape.
There are principles in statutory construction that will sanction, even
mandate, this "expansive" interpretation of Rep. Act No. 9346. The
maxim interpretare et concordare legibus est optimus
interpretandi embodies the principle that a statute should be so construed
not only to be consistent with itself, but also to harmonize with other
laws on the same subject matter, as to form a complete, coherent and
intelligible system—a uniform system of jurisprudence.75"Interpreting
and harmonizing laws with laws is the best method of interpretation. x x
x x This manner of construction would provide a complete, consistent
and intelligible system to secure the rights of all persons affected by
different legislative and quasi-
legislative acts."76 There can be no harmony between Rep. Act No. 9346
and the Revised Penal Code unless the later statute is construed as
having downgraded those penalties attached to death by reason of the
graduated scale under Article 71. Only in that manner will a clear and
consistent rule emerge as to the application of penalties for frustrated and
attempted felonies, and for accessories and accomplices.
It is also a well-known rule of legal hermeneutics that penal or criminal
laws are strictly construed against the state and liberally in favor of the
accused.77 If the language of the law were ambiguous, the court will lean
more strongly in favor of the defendant than it would if the statute were
remedial, as a means of effecting substantial justice.78 The law is tender
in favor of the rights of an individual.79 It is this philosophy of caution
before the State may deprive a person of life or liberty that animates one
of the most fundamental principles in our Bill of Rights, that every
person is presumed innocent until proven guilty.
Resort to the aforementioned principles in statutory construction would
not have been necessary had Rep. Act No. 9346 ineluctably stated that
the repeal of all laws imposing the death penalty did not engender the
corresponding modification of penalties other than death, dependent as
these are on "death" as a measure under the graduated scale of penalties
under Article 71. Admittedly, if this were indeed the intent of Congress,
and such intent were unequivocally expressed in Rep. Act No. 9346, the
resulting inequities and inconsistencies we had earlier pointed out would
have remained. If that were to be the case, we would have
acknowledged, perhaps tacitly, that such inequities and inconsistencies
fell part of the legislative intent. It does not speak well of a Congress to
be deliberately inconsistent with, or ignorant of its own prior enactments.
Yet ultimately, Section 1 of Rep. Act No. 9346 is not expressive of such
rash or injudicious notions, as it is susceptible to a reading that would
harmonize its effects with the precepts and practices that pervade our
general penal laws, and in a manner that does not defy the clear will of
Congress.
VIII.
One who would like to advocate that Rep. Act No. 9346 did not
correspondingly amend any of the penalties other than death in our penal
laws would most certainly invoke our ruling in People v.
Muñoz,80 decided in 1989. Therein, a divided Court ruled in that the
constitutional bar on the imposition of the death penalty did not enact "a
corresponding modification in the other periods [in penalties]", there
being no expression of "such a requirement… in Article III, Section
19(1) of the Constitution or indicat[ion] therein by at least
clear and unmistakable implication."81 In so concluding, the Court made
the oft-cited pronouncement that there was nothing in the 1987
Constitution "which expressly declares the abolition of the death
penalty."82
It is time to re-examine Muñoz and its continued viability in light of Rep.
Act No. 9346. More precisely, would Muñozas precedent deter the Court
from ruling that Rep. Act No. 9346 consequently downgraded penalties
other than death?
It can be recalled that the accused in Muñoz were found guilty of murder,
which under the Revised Penal Code, carried the penalty of reclusion
temporal in its maximum period to death. The subject murders therein
were not attended by any modifying circumstance, and thus penalized in
the penalty's medium term. Jurisprudence previous to Muñoz held that
the proper penalty in such instances should be "the higher half
of reclusion temporal maximum," with reclusion temporal maximum,
divided into two halves for that purpose. Muñoz rejected this
formulation, holding instead that the penalty should be reclusion
perpetua. Towards this conclusion, the Court made the above-cited
conclusions relating to the constitutional abolition of the death penalty,
and the charter's effects on the other periods. Six justices dissented from
that ruling, and as recently as 1997, a member of the Court felt strongly
enough to publish a view urging the reexamination of Muñoz.83
It would be disingenuous to consider Muñoz as directly settling the
question now befacing us, as the legal premises behind Muñoz are
different from those in this case. Most pertinently, Muñoz inquired into
the effects of the Constitution on the proper penalty for murder; while
herein, we are ascertaining the effects of Rep. Act No. 9346 on the
proper penalty for attempted qualified rape. Muñoz may have
pronounced that the Constitution did not abolish the death penalty,
but that issue no longer falls into consideration herein, the correct
query now being whether Congress has banned the death penalty
through Rep. Act No. 9346. Otherwise framed, Muñoz does not
preclude the Court from concluding that with the express
prohibition of the imposition of the death penalty Congress has
unequivocally banned the same.
Muñoz made hay over the peculiar formulation of Section 19(1), Article
III, which provided that "[n]either shall death penalty be imposed,
unless, for compelling reasons involving heinous crimes, the Congress
hereafter provides for it." Muñoz and its progenies, have interpreted that
provision as prohibiting the actual imposition of the death penalty, as
opposed to enacting an amendatory law that eliminates all references and
applications of the death penalty in our statutes. It can also be understood
and appreciated that at the time Muñoz was decided, it would have been
polemical to foster an unequivocal pronouncement that Section 19(1),
Article III abolished the death penalty, since the very provision itself
acknowledged that Congress may nonetheless subsequently provide for
the penalty "for compelling reasons involving heinous crimes," as
Congress very well did just four (4) years after Muñoz. No such language
exists in Rep. Act No. 9346. Of course, the legislature has the inherent
and constitutional power to enact laws prescribing penalties for crimes,
and the Constitution will not prohibit Congress from reenacting the death
penalty "for compelling reasons involving heinous crimes." Yet it was
that express stipulation in the Constitution that dissuaded the Court from
recognizing the constitutional abolition of the death penalty; and there is
no similar statutory expression in Rep. Act No. 9346, which could be
construed as evocative of intent similar to that of the Constitution.
The doctrine in Muñoz that the constitutional prohibition on the
imposition of the death penalty did not enact a corresponding
modification of other penalties is similarly irrelevant to this case, which
calls for an examination as to whether such corresponding modifications
of other penalties arose as a consequence of Rep. Act No. 9346, and not
the Constitution.
For purposes of legal hermeneutics, the critical question is whether Rep.
Act No. 9346 intended to delete the word "death" as expressly provided
for in the graduated scale of penalties under Article 71. Muñoz did not
engage in an analogous inquiry in relation to Article 71 and the
Constitution, for what was relevant therein was not the general graduated
scale of penalties, but the range of the penalties for murder. Herein, at
bare minimum, no provision in Rep. Act No. 9346 provides a context
within which the concept of "death penalty" bears retentive legal effect,
especially in relation to Article 71. Unlike the Constitution, Rep. Act
No. 9346 does expressly stipulate the amendment of all extant laws
insofar as they called for the imposition of the penalty of death.
The impression left by Muñoz was that the use of the word "imposition"
in the Constitution evinced the framer's intent to retain the operation of
penalties under the Revised Penal Code. In the same vein, one might try
to construe the use of "imposition" in Rep. Act No. 9346 as a means
employed by Congress to ensure that the "death penalty", as applied in
Article 71, remain extant. If the use of "imposition" was implemented as
a means of retaining "death" under Article 71, it would have been a most
curious, roundabout means indeed. The Court can tolerate to a certain
degree the deliberate vagueness sometimes employed in legislation, yet
constitutional due process demands a higher degree of clarity when
infringements on life or liberty are intended. We have ruled, on due
process grounds, as arbitrary and oppressive a tax assessed on a standard
characterized as "nothing but blather in search of meaning."84 In the
matter of statutes that deprive a person of physical liberty, the demand
for a clear standard in sentencing is even more exacting.
Yet in truth, there is no material difference between "imposition" and
"application," for both terms embody the operation in law of the death
penalty. Since Article 71 denominates "death" as an element in the
graduated scale of penalties, there is no question that the operation of
Article 71 involves the actual application of the death penalty as a
means of determining the extent which a person's liberty is to be
deprived. Since Rep. Act No. 9346 unequivocally bars the application of
the death penalty, as well as expressly repeals all such statutory
provisions requiring the application of the death penalty, such effect
necessarily extends to its relevance to the graduated scale of penalties
under Article 71.
We cannot find basis to conclude that Rep. Act No. 9346 intended to
retain the operative effects of the death penalty in the graduation of the
other penalties in our penal laws. Munoz cannot enjoin us to adopt such
conclusion. Rep. Act No. 9346 is not swaddled in the same restraints
appreciated by Muñoz on Section 19(1), Article III. The very Congress
empowered by the Constitution to reinstate the imposition of the death
penalty once thought it best to do so, through Rep. Act No. 7650. Within
the same realm of constitutional discretion, Congress has reversed itself.
It must be asserted that today, the legal status of the suppression of the
death penalty in the Philippines has never been more secure than at any
time in our political history as a nation.
Following Muñoz, the sovereign people, through the 1987 Constitution,
might not have willed the abolition of the death penalty and instead
placed it under a suspensive condition. As such, we affirmed the
characterization of the death penalty during the interregnum between the
1987 Constitution and its reimposition through law as being "in a state of
hibernation."85 No longer. It reawakened — then it died; because the
sovereign people, through Rep. Act No. 9346, banned the death penalty.
Only by an Act of Congress can it be reborn. Before that day, the
consideration of death as a penalty is bereft of legal effect, whether as a
means of depriving life, or as a means of depriving liberty.
Despite our present pronouncement on the ban against of the death
penalty, we do not acknowledge that Muñozlacked legal justification
when it was decided; that its application as precedent prior to Rep. Act
No. 9346 was erroneous; or that previous sentences imposed on convicts
on the basis of Muñoz were wrong. Muñoz properly stood as the
governing precedent in the matter of sentences that passed finality prior
to Rep. Act No. 9346; and the consistent reliance by the courts on its
doctrines entrenched its footing in criminal law jurisprudence.
IX.
Rep. Act No. 7659, in the course of reintroducing the death penalty in
the Philippines, also effectively classified the crimes listed therein as
"heinous," within constitutional contemplation. Such reclassification
under Rep. Act No. 7659 was accompanied by certain legal effects other
than the imposition of the death penalty, such as the increase in
imposable fines attached to certain heinous crimes.86 The categorization
of certain crimes as "heinous", constituting as it does official recognition
that some crimes are more odious than others, has also influenced this
Court in adjudging the proper pecuniary indemnities awarded to the
victims of these crimes. Hence, a general inclination persists in levying a
greater amount of damages on accused found guilty of heinous crimes.
It should be understood that the debarring of the death penalty through
Rep. Act No. 9346 did not correspondingly declassify those crimes
previously catalogued as "heinous". The amendatory effects of Rep. Act
No. 9346 extend only to the application of the death penalty but not to
the definition or classification of crimes. True, the penalties for heinous
crimes have been downgraded under the aegis of the new law. Still, what
remains extant is the recognition by law that such crimes, by their
abhorrent nature, constitute a special category by themselves.
Accordingly, Rep. Act No. 9346 does not serve as basis for the reduction
of civil indemnity and other damages that adhere to heinous crimes.
X.
Having pronounced the statutory disallowance of the death penalty
through Rep. Act No. 9346 and the corresponding modification of
penalties other than death through that statute, we now proceed to
discuss the effects of these rulings.
As to sentences not yet handed down, or affirmed with finality, the
application is immediate. Henceforth, "death," as utilized in Article 71 of
the Revised Penal Code, shall no longer form part of the equation in the
graduation of penalties. For example, in the case of appellant, the
determination of his penalty for attempted rape shall be reckoned not
from two degrees lower than death, but two degrees lower than reclusion
perpetua. Hence, the maximum term of his penalty shall no longer
be reclusion temporal, as ruled by the Court of Appeals, but
instead, prision mayor.
There should be little complication if the crime committed was
punishable by the free-standing penalty of "death," as utilized in Rep.
Act No. 7659, as opposed to the ranged penalty of "reclusion perpetua to
death," as often used in the Revised Penal Code and other penal laws.
The facts of the present case do not concern the latter penalty, hence our
reluctance to avail of an extended discussion thereof. However, we did
earlier observe that both "reclusion perpetua" and death are indivisible
penalties. Under Article 61 (2) of the Revised Penal Code, "[w]hen the
penalty prescribed for the crime is composed of two indivisible penalties
x x x x the penalty next lower in degree shall be that immediately
following the lesser of the penalties prescribed in the respective
graduated scale." Hence, as we earlier noted, our previous rulings that
the penalty two degrees lower than "reclusion perpetua to death"
is prision mayor.
Then there is the matter of whether retroactive effect should be extended
to this new ruling, favorable as it is to persons previously convicted of
crimes which, if consummated or participated in as a principal, would
have warranted the solitary penalty of death. We see no choice but to
extend the retroactive benefit. Article 22 of the Revised Penal Code
states that "[p]enal laws shall have a retroactive effect insofar as they
favor the person guilty of a felony, who is not a habitual criminal[87] x x
x x although at the time of the publication of such laws a final sentence
has been pronounced and the convict is serving the same." Given that we
have ruled that Rep. Act No. 9346 downgraded the penalties for such
crimes, the benefit of Article 22 has to apply, except as to those persons
defined as "habitual criminal[s]." Indeed, Rep. Act No. 9346 expressly
recognized that its enactment would have retroactive beneficial effects,
referring as it did to "persons x x x whose sentences were reduced
to reclusion perpetua by reason of this Act."88
It cannot be discounted that by operation of Rep. Act No. 9346 and
Article 22 of the Revised Penal Code, there may be convicts presently
serving their original sentences whose actual served terms exceed their
reduced sentences. It should be understood that this decision does not
make operative the release of such convicts, especially as there may
be other reasons that exist for their continued detention. There are
remedies under law that could be employed to obtain the release of such
prisoners, if warranted. Offices such as the Public Attorney's Office and
non-governmental organizations that frequently assist detainees possess
the capacity and acumen to help implement the release of such prisoners
who are so entitled by reason of this ruling.
XI.
We close by returning to the matter of appellant Alfredo Bon. By reason
of Rep. Act No. 9346, he is spared the death sentence, and entitled to the
corresponding reduction of his penalty as a consequence of the
downgrading of his offense from two (2) counts consummated rape to
two (2) counts of attempted rape. For the six (6) counts of rape, we
downgrade the penalty of death to reclusion perpetua with no eligibility
for parole, pursuant to Rep. Act No. 9346. For each of the two (2) counts
of attempted rape, we downgrade by one degree lower the penalty
imposed by the Court of Appeals. We hold that there being no mitigating
or aggravating circumstances, the penalty of prision mayor should be
imposed in it medium period. Consequently, we impose the new penalty
of two (2) years, four (4) months and one (1) day of prision
correccional as minimum, to eight (8) years and one (1) day of prision
mayor as maximum.
Lastly, as to damages, the Court awards AAA P30,000.00 as civil
indemnity, P25,000.00 as moral damages and P10,000.00 as exemplary
damages for each count of attempted rape, it being the prevailing rate of
indemnity as pronounced in the recent case of People v. Miranda.89
Separately, the Court applies prevailing jurisprudence90 in awarding to
BBB and AAA P75,000.00 as civil indemnity, P75,000.00 as moral
damages and P25,000.00 as exemplary damages, for each count of
consummated rape.
WHEREFORE, in light of the foregoing, the Decision of the Court of
Appeals is hereby AFFIRMED WITH MODIFICATION. The Court
sentences appellant Alfredo J. Bon to the penalty of reclusion
perpetua with no possibility of parole for each of the six (6) counts of
consummated rape committed against AAA in Criminal Case Nos. 6699,
6902, and against BBB in Criminal Case Nos. 6689, 6903, 6905, and
6907. Appellant is further ORDERED to indemnify AAA and BBB for
the crime of consummated rape, in the amounts of P50,000.00 as civil
indemnity, P50,000.00 as moral damages and P25,000.00 as exemplary
damages for each of them.
For the two (2) counts of attempted rape of AAA in Criminal Cases No.
6906 and 6908, appellant is hereby SENTENCED to an indeterminate
penalty of two (2) years, four (4) months and one (1) day of prision
correccionalas minimum, to eight (8) years and one (1) of prision
mayor as maximum for each count of attempted rape. In addition,
appellant is ORDERED to indemnify AAA for each of the two (2)
counts of attempted rape in the amounts of P30,000.00 as civil
indemnity, P25,000.00 as moral damages and P10,000.00 as exemplary
damages.
SO ORDERED.
Panganiban, C.J. (Chairperson), Puno, Quisumbing, Ynares-Santiago,
Sandoval-Gutierrez, Carpio, Austria-Martinez, Corona, Carpio Morales,
Callejo, Sr., Azcuna, Chico-Nazario, Garcia, and Velasco, Jr.,
JJ., concur.
Footnotes
1
See People v. Muñoz, G.R. No. 38969-70, 9 February 1989, 170
SCRA 107.
2
Later docketed as Criminal Case Nos. 6689-G, 6899-G, 6902-
G, 6903-G, 6905-G, 6906-G, 6907-G and 6908-G.
3
Pursuant to Republic Act No. 9262, otherwise known as the
Anti-Violence Against Women and Their Children Act of 2004,
and its implementing rules, the real names of the victims, as well
those of their immediate family or household members, are
withheld and fictitious initials instead are used to represent them,
to protect their privacy. See People v. Cabalquinto, G.R. No.
167693, 19 September 2006.
4
Id.
5
There are eight (8) Informations in all against appellant, all of
them accusing him of qualified rape, the victim being a minor
and a relative by consanguinity within the third civil degree. We
are not reproducing them all in full for reasons of brevity. All
eight (8) Informations are generally styled in the same fashion,
the variables being the dates of the rape, the weapon used in
committing the rape, the names of the victims, and their ages at
the time of the rape. Otherwise, they more or less commonly
provide as follows:
 28
"That on or about (date) day of (month) (year), in the Rollo, pp. 3-23. Decision penned by Associate Justice M. Del
Municipality of Gumaca, Province of Quezon, Philippines Castillo, and concurred in by Associate Justices R. Brawner and
and within the jurisdiction of this Honorable Court, the M. De Leon.
29
said accused, armed with (kitchen knife/a bladed Id. at 15.
30
weapon/a fan knife), with lewd designs, by means of Id. at 16-17.
31
force, threats and intimidation, did then and there Id. at 33-49.
32
willfully, unlawfully and feloniously have carnal Rollo, p. 47; TSN, 3 July 2002, p. 4.
33
knowledge of one (AAA/BBB), a minor, (age) years of 337 Phil. 244 (1997).
34
age, against her will. Citing People v. Sagaral, G.R. Nos. 112714-15, 7 February
That accused Alfredo Bon is a relative by consanguinity 1997.
35
within the third civil degree of victim (AAA/BBB)" Citing People v. Magaluna, 205 SCRA 266 (1992).
36
(Rollo, pp. 4-6). Citing People v. Como, 202 SCRA 200 (1991) and People v.
The Information in Criminal Case No. 6689-G omitted Serdan, 213 SCRA 329 (1992).
37
the second paragraph cited above, but did state that BBB People v. Perez, supra note 33 at 250-251. Emphasis supplied.
38
was his niece. Id. at 168. Records, Vol. I, pp. 221-230.
6 39
CA rollo, p. 93. Id. at 225-226.
7 40
Id. People v. Manayan, 420 Phil. 357, 377 (2001) citing People v.
8
Id. Hofileña, G.R. No. 134772, June 22, 2000; People v. Legaspi et
9
Referred to by AAA in her testimony as the "kaingin." al., G.R. No. 117802, April 27, 2000; People v. Llanes, et al.,
10
CA rollo, p. 93. G.R. No. 116986, February 4, 2000; People v. Rendoque, et al.,
11
Supra note 3. G.R. No. 106282, January 20, 2000; People v. Estrada, 22 SCRA
12
CA rollo, p. 93. 111, January 17, 1968.
13 41
Id. People v. Suarez, G.R. Nos. 153573-76, 15 April 2005, 456
14
Id. SCRA 333, 349 citing People v. Intong, G.R. Nos. 145034-35, 5
15
Id. at 75. February 2004, 422 SCRA 134, 139.
16 42
Id. at 96. People v. Lapay, 358 Phil. 541, 560 (1998).
17 43
Id. at 95. People v. Esperanza, 453 Phil. 54, 74-75 (2003) citing People
18
Id. v. Villraza, G.R. Nos. 131848-50, 5 September 2000, 339 SCRA
19
Id. at 97-98. 666.
20 44
Id. at 98. People v. Guambor, G.R. No. 152183, 22 January 2004, 420
21
Id. at 99. SCRA 677, 682.
22 45
Id. at 98. People v. Delos Santos, 420 Phil. 551, 564 (2001)
23 46
Id. at 99. Id.
24 47
Id. at 100. Revised Penal Code, Art. 6.
25 48
Id. TSN, 17 October 2001, p. 6.
26 49
CA rollo, pp. 31-63. Decision penned by Presiding Judge A. Id. at 7-9.
50
Maqueda-Roman. CA rollo, pp. 17-18. Citing People v. Balgos, 323 SCRA 373.
27 51
G.R. Nos. 147678-87, 7 July 2004, 433 SCRA 640. Perez v. Court of Appeals, 431 Phil. 788, 793 (2002).
52
G.R. No. 171271, 31 August 2006.
53
Supra note 3. been liable for the death penalty for the rape of a victim under
54
Revised Penal Code, Art. 52. eighteen (18) years of age, who happened to be a relative by
55
See Revised Penal Code, Art. 266-B. consanguinity or affinity within the third civil degree. See
56
See Revised Penal Code, Art. 61. Revised Penal Code, Art. 266-B, par. (1).
57 72
See Revised Penal Code, Art. 71. Supra note 1.
58 73
See Rep. Act 4103 (199), Sec. 5. See e.g., People v. Orita, G.R. No. 88724, 3 April 1990, 194
59
See Separate Opinion, J. Tinga, People v. Tubongbanua, supra SCRA 105, 115, wherein the Court recognized "it is hardly
note 52. conceivable how the frustrated stage in rape can ever be
60
See Rep. Act No. 7659 (1993), Sec. 4. committed." However, an exception may lie in theory as to
61
See Rep. Act No. 7659, (1993), Sec. 8. qualified arson, considering that the Court recognized the filing
62
See Rep. Act No. 7659 (1993), Sec. 10. of frustrated arson in People v. Valdes, 39 Phil. 240, 243 (1918).
63 74
See Rep. Act No. 7659 (1993), Sec. 6. See People v. Francisco, supra note 67; People v. Tolentino,
64
See Rep. Act No. 7659 (1993), Sec. 3. supra note 68; People v. Campuhan, supra note 68. See
65
See Rep. Act No. 7659 (1993), Sec. 2. also People v. Mariano, 420 Phil. 727, 743 (2001), People v.
66
See People v. Sala, 370 Phil. 323, 367 (1999). Quarre, 427 Phil. 422, 439 (2002); People v. Mendoza, G.R. Nos.
67
People v. Francisco, G.R. Nos. 135201-02, 15 March 2001, 152589 & 152758, 24 October 2003, 414 SCRA 461,
354 SCRA 475, 491. 471; People v. Miranda, G.R. No. 169078, 10 March 2006, 484
68
367 Phil. 755 (1999). SCRA 555, 569.
69 75
Supra note 3. See e.g., Corona v. Court of Appeals, G.R. No. 97356,
70
People v. Tolentino, supra note 68 at 765, 767. See September 30, 1992, 214 SCRA 378, 392; Loyola Grand Villas
also, e.g., People v. Campuhan, 385 Phil. 912 (2000), where the Homeowners Association v. Hon. Court of Appeals, 342 Phil.
Court stated: "The penalty for attempted rape is two (2) degrees 651, 667 (1997); MJCI v. Court of Appeals, 360 Phil. 380-381
lower than the imposable penalty of death for the offense (1998).
76
charged, which is statutory rape of a minor below seven (7) years. Valencia v. Court of Appeals, 449 Phil. 711, 726 (2003).
77
Two (2) degrees lower is reclusion temporal, the range of which See R. Agpalo, Statutory Construction (3rd ed., 1995), p. 226,
is twelve (12) years and one (1) day to twenty (20) years. x x x;" citing jurisprudence.
78
Id. at 927. See id. at 227.
71 79
For purposes of the succeeding academic discussion, Id.
80
"attempted rape of a minor" refers to the attempted rape of a Supra note 1.
81
minor which if consummated, would be subject to the death Supra note 1 at 123.
82
penalty, pursuant to Article 266-B of the Revised Penal Code, as Supra note 1 at 121. See e.g., People v. de la Cruz, G.R. No.
amended. In other words, the so-called qualified rape. It should 100386, 11 December 1992, 216 SCRA 476, 482-484; People v.
be understood that not all rapes, even of minors, were Amigo, 322 Phil. 40, 50 (1996); People v. Artiaga, G.R. No.
automatically covered by the death penalty, which was imposable 115689, 30 June 1997, 274 SCRA 685, 694; People v. Quiboyen,
if any of the aggravating/qualifying circumstances enumerated in 369 Phil. 589, 606 (1999).
83
Article 266-B were present. It would of course be futile, in "In People v. Muñoz, 170 SCRA 107, February 9, 1989, the
discussing the effect of the law abolishing the death penalty, if Court, prior to the enactment and effectivity of RA 7659, ruled
the above-discussion also applies to those rapes which were not by a vote of 9-6 (J. Cruz, ponente, C.J. Fernan, JJ. Gutierrez, Jr.,
covered by the death penalty. In appellant's case, he would have Feliciano, Gancayco, Padilla, Bidin, Griño-Aquino and
Medialdea, concurring) that the death penalty was not abolished
but only prohibited from being imposed. But see also the
persuasive Dissenting Opinion of Mme. Justice Ameurfina
Melencio-Herrera (joined by JJ. Narvasa, Paras, Sarmiento,
Cortes and Regalado) who contended that the Constitution totally
abolished the death penalty and removed it from the statute
books. People v. Muñozreversed the earlier "abolition" doctrine
uniformly held in People v. Gavarra, No. L-37673, 155 SCRA
327, October 30, 1987, (per C.J. Yap); People v. Masangkay,
NO. L-73461, 155 SCRA 113, October 27, 1987, (per J.
Melencio-Herrera) and People v. Atencio, Nos. L-67721-22, 156
SCRA 242, December 10, 1987 (per C.J. Narvasa). It is time that
these cases are revisited by this Court." See footnote no. 5,
Separate Opinion, People v. Echegaray, 335 Phil. 343, 392
(1997).
84
Yamane v. BA Lepanto Condominium Corporation, G.R. No.
154993, 25 October 2005, 474 SCRA 258, 281.
85
See People v. Gulpe, G.R. No. 126820, 30 March 2004, 426
SCRA 456, 458.
86
See e.g., Section 13 of Rep. Act No. 7659, amending Section 4
of the Dangerous Drugs Act of 1972.
87
As defined in Rule 6, Article 62 of the Revised Penal Code.
88
See Rep. Act No. 7659, Sec. 3.
89
G.R. No. 169078, 10 March 2006, 484 SCRA 555, 569-570.
90
See, e.g., People v. Quiachon, G.R. No. 170236, 31 August
2006.
G.R. No. L-25018 May 26, 1969
ARSENIO PASCUAL, JR., petitioner-appellee,
vs.
BOARD OF MEDICAL EXAMINERS, respondent-appellant,
SALVADOR GATBONTON and ENRIQUETA GATBONTON,
intervenors-appellants.
Conrado B. Enriquez for petitioner-appellee.
Office of the Solicitor General Arturo A. Alafriz, Assistant Solicitor
General Antonio A. Torres and Solicitor Pedro A. Ramirez for
respondent-appellant.
Bausa, Ampil and Suarez for intervenors-appellants.
FERNANDO, J.:
The broad, all-embracing sweep of the self-incrimination
clause,1 whenever appropriately invoked, has been accorded due
recognition by this Court ever since the adoption of the
Constitution.2 Bermudez v. Castillo,3 decided in 1937, was quite
categorical. As we there stated: "This Court is of the opinion that in order
that the constitutional provision under consideration may prove to be a
real protection and not a dead letter, it must be given a liberal and broad
interpretation favorable to the person invoking it." As phrased by Justice
Laurel in his concurring opinion: "The provision, as doubtless it was
designed, would be construed with the utmost liberality in favor of the
right of the individual intended to be served." 4
Even more relevant, considering the precise point at issue, is the recent
case of Cabal v. Kapunan,5where it was held that a respondent in an
administrative proceeding under the Anti-Graft Law 6 cannot be required
to take the witness stand at the instance of the complainant. So it must be
in this case, where petitioner was sustained by the lower court in his plea
that he could not be compelled to be the first witness of the
complainants, he being the party proceeded against in an administrative
charge for malpractice. That was a correct decision; we affirm it on
appeal.
Arsenio Pascual, Jr., petitioner-appellee, filed on February 1, 1965 with
the Court of First Instance of Manila an action for prohibition with
prayer for preliminary injunction against the Board of Medical
Examiners, now respondent-appellant. It was alleged therein that at the
initial hearing of an administrative case7 for alleged immorality, counsel
for complainants announced that he would present as his first witness
herein petitioner-appellee, who was the respondent in such malpractice
charge. Thereupon, petitioner-appellee, through counsel, made of record
his objection, relying on the constitutional right to be exempt from being
a witness against himself. Respondent-appellant, the Board of
Examiners, took note of such a plea, at the same time stating that at the
next scheduled hearing, on February 12, 1965, petitioner-appellee would
be called upon to testify as such witness, unless in the meantime he could
secure a restraining order from a competent authority.
Petitioner-appellee then alleged that in thus ruling to compel him to take
the witness stand, the Board of Examiners was guilty, at the very least, of
grave abuse of discretion for failure to respect the constitutional right
against self-incrimination, the administrative proceeding against him,
which could result in forfeiture or loss of a privilege, being quasi-
criminal in character. With his assertion that he was entitled to the relief
demanded consisting of perpetually restraining the respondent Board
from compelling him to testify as witness for his adversary and his
readiness or his willingness to put a bond, he prayed for a writ of
preliminary injunction and after a hearing or trial, for a writ of
prohibition.
On February 9, 1965, the lower court ordered that a writ of preliminary
injunction issue against the respondent Board commanding it to refrain
from hearing or further proceeding with such an administrative case, to
await the judicial disposition of the matter upon petitioner-appellee
posting a bond in the amount of P500.00.
The answer of respondent Board, while admitting the facts stressed that
it could call petitioner-appellee to the witness stand and interrogate him,
the right against self-incrimination being available only when a question
calling for an incriminating answer is asked of a witness. It further
elaborated the matter in the affirmative defenses interposed, stating that
petitioner-appellee's remedy is to object once he is in the witness stand,
for respondent "a plain, speedy and adequate remedy in the ordinary
course of law," precluding the issuance of the relief sought. Respondent
Board, therefore, denied that it acted with grave abuse of discretion.
There was a motion for intervention by Salvador Gatbonton and
Enriqueta Gatbonton, the complainants in the administrative case for
malpractice against petitioner-appellee, asking that they be allowed to
file an answer as intervenors. Such a motion was granted and an answer
in intervention was duly filed by them on March 23, 1965 sustaining the
power of respondent Board, which for them is limited to compelling the
witness to take the stand, to be distinguished, in their opinion, from the
power to compel a witness to incriminate himself. They likewise alleged
that the right against self-incrimination cannot be availed of in an
administrative hearing.
A decision was rendered by the lower court on August 2, 1965, finding
the claim of petitioner-appellee to be well-founded and prohibiting
respondent Board "from compelling the petitioner to act and testify as a
witness for the complainant in said investigation without his consent and
against himself." Hence this appeal both by respondent Board and
intervenors, the Gatbontons. As noted at the outset, we find for the
petitioner-appellee.
1. We affirm the lower court decision on appeal as it does manifest fealty
to the principle announced by us in Cabal v. Kapunan. 8 In that
proceeding for certiorari and prohibition to annul an order of Judge
Kapunan, it appeared that an administrative charge for unexplained
wealth having been filed against petitioner under the Anti-Graft Act,9the
complainant requested the investigating committee that petitioner be
ordered to take the witness stand, which request was granted. Upon
petitioner's refusal to be sworn as such witness, a charge for contempt
was filed against him in the sala of respondent Judge. He filed a motion
to quash and upon its denial, he initiated this proceeding. We found for
the petitioner in accordance with the well-settled principle that "the
accused in a criminal case may refuse, not only to answer incriminatory
questions, but, also, to take the witness stand."
It was noted in the opinion penned by the present Chief Justice that while
the matter referred to an a administrative charge of unexplained wealth,
with the Anti-Graft Act authorizing the forfeiture of whatever property a
public officer or employee may acquire, manifestly out proportion to his
salary and his other lawful income, there is clearly the imposition of a
penalty. The proceeding for forfeiture while administrative in character
thus possesses a criminal or penal aspect. The case before us is not
dissimilar; petitioner would be similarly disadvantaged. He could suffer
not the forfeiture of property but the revocation of his license as a
medical practitioner, for some an even greater deprivation.
To the argument that Cabal v. Kapunan could thus distinguished, it
suffices to refer to an American Supreme Court opinion highly
persuasive in character. 10 In the language of Justice Douglas: "We
conclude ... that the Self-Incrimination Clause of the Fifth Amendment
has been absorbed in the Fourteenth, that it extends its protection to
lawyers as well as to other individuals, and that it should not be watered
down by imposing the dishonor of disbarment and the deprivation of a
livelihood as a price for asserting it." We reiterate that such a principle is
equally applicable to a proceeding that could possibly result in the loss of
the privilege to practice the medical profession.
2. The appeal apparently proceeds on the mistaken assumption by
respondent Board and intervenors-appellants that the constitutional
guarantee against self-incrimination should be limited to allowing a
witness to object to questions the answers to which could lead to a penal
liability being subsequently incurred. It is true that one aspect of such a
right, to follow the language of another American decision, 11 is the
protection against "any disclosures which the witness may reasonably
apprehend could be used in a criminal prosecution or which could lead to
other evidence that might be so used." If that were all there is then it
becomes diluted.lawphi1.ñet
The constitutional guarantee protects as well the right to silence. As far
back as 1905, we had occasion to declare: "The accused has a perfect
right to remain silent and his silence cannot be used as a presumption of
his guilt." 12Only last year, in Chavez v. Court of Appeals, 13 speaking
through Justice Sanchez, we reaffirmed the doctrine anew that it is the
right of a defendant "to forego testimony, to remain silent, unless he
chooses to take the witness stand — with undiluted, unfettered exercise
of his own free genuine will."
Why it should be thus is not difficult to discern. The constitutional
guarantee, along with other rights granted an accused, stands for a belief
that while crime should not go unpunished and that the truth must be
revealed, such desirable objectives should not be accomplished
according to means or methods offensive to the high sense of respect
accorded the human personality. More and more in line with the
democratic creed, the deference accorded an individual even those
suspected of the most heinous crimes is given due weight. To quote from
Chief Justice Warren, "the constitutional foundation underlying the
privilege is the respect a government ... must accord to the dignity and
integrity of its citizens." 14
It is likewise of interest to note that while earlier decisions stressed the
principle of humanity on which this right is predicated, precluding as it
does all resort to force or compulsion, whether physical or mental,
current judicial opinion places equal emphasis on its identification with
the right to privacy. Thus according to Justice Douglas: "The Fifth
Amendment in its Self-Incrimination clause enables the citizen to create
a zone of privacy which government may not force to surrender to his and he was required to plead "guilty" or "not guilty" in
detriment." 15 So also with the observation of the late Judge Frank who accordance with section 18 of General Orders, No. 58. He
spoke of "a right to a private enclave where he may lead a private life. pleaded "not guilty." In response to this request the defendant
That right is the hallmark of our democracy." 16 In the light of the above, made a statement. We are of the opinion that this procedure is
it could thus clearly appear that no possible objection could be illegal. The judge had no right to compel the accused to make any
legitimately raised against the correctness of the decision now on appeal. statement whatever."
13
We hold that in an administrative hearing against a medical practitioner 24 SCRA 663.
14
for alleged malpractice, respondent Board of Medical Examiners cannot, Miranda v. Arizona, 284 US 436 (1966).
15
consistently with the self-incrimination clause, compel the person Criswold v. Connecticut, 381 US 479 (1965).
16
proceeded against to take the witness stand without his consent. United States v. Grunewold, 233 F 2d 556 quoted in Miranda v.
WHEREFORE, the decision of the lower court of August 2, 1965 is Arizona, 384 US 476 (1966).
affirmed. Without pronouncement as to costs.
Reyes, Dizon, Makalintal, Zaldivar, Sanchez and Capistrano, JJ.,
concur.
Teehankee and Barredo, JJ., took no part.
Concepcion, C.J., and Castro, J., are on leave.
Footnotes
1
Section 1, Clause 18, Art. III, Constitution.
2
It was so even under previous organic acts. Cf. United States v.
Navarro, 3 Phil. 143 (1904); Beltran v. Samson, 53 Phil. 570
(1929).
3
64 Phil. 483.
4
Ibid., p. 492. This constitutional command, according to Justice
Fortas, "has [been] broadly applied and generously implemented
in accordance with the teaching of the history of the privilege and
its great office in mankind's battle for freedom." Re GauIt, 387
US 1 (1967).
5
6 SCRA 1059 (1962).
6
Republic Act No. 1379 (1955).
7
No. 639 of Respondent Board entitled Salvador Gatbonton v.
Arsenio Pascual.
8
6 SCRA 1059 (1962).
9
Republic Act No. 1379.
10
Spevack v. Klein, 385 US 511 (1967).
11
Murphy v. Waterfront Commission of New York, 378 US 52
(1964).
12
United States v. Luzon, 4 Phil. 343 (1905). Cf. United States v.
Junio, 1 Phil. 50, decided three years earlier: "It appears from the
record that a copy of the complaint was served upon the accused
SECOND DIVISION jurisdiction of this Honorable Court, the
above-named accused EDUARDO P.
MANUEL, being then previously and legally
EDUARDO P. MANUEL, G.R. No. 165842 married to RUBYLUS [GAA] and without the
Petitioner, said marriage having been legally dissolved,
Present: did then and there willfully, unlawfully and
PUNO, J., feloniously contract a second marriage with
Chairman, TINA GANDALERA-MANUEL, herein
AUSTRIA-MARTINEZ, - versus - CALLEJO, SR., complainant, who does not know the existence
TINGA, and of the first marriage of said EDUARDO P.
CHICO- MANUEL to Rubylus [Gaa].
NAZARIO,* JJ.
' CONTRARY TO LAW. [3]
Promulgated:
PEOPLE OF THE PHILIPPINES,
Respondent.November 29, 2005 The prosecution adduced evidence that on July 28, 1975,
Eduardo was married to Rubylus Gaa before Msgr. Feliciano
x------------------------------------------------------------------------ Santos in Makati, which was then still a municipality of the
-----------------x Province of Rizal. [4] He met the private complainant Tina B.
Gandalera in Dagupan City sometime in January 1996. She
DECISION stayed in Bonuan, Dagupan City for two days looking for a
friend. Tina was then 21 years old, a Computer Secretarial
CALLEJO, SR., J.: student, while Eduardo was 39. Afterwards, Eduardo went to
Baguio City to visit her. Eventually, as one thing led to
another, they went to a motel where, despite Tina's resistance,
Before us is a petition for review on certiorari of the Eduardo succeeded in having his way with her. Eduardo
Decision [1]of the Court of Appeals (CA) in CA-G.R. CR No. proposed marriage on several occasions, assuring her that he
26877, affirming the Decision [2] of the Regional Trial Court was single. Eduardo even brought his parents to Baguio City
(RTC) of Baguio City, Branch 3, convicting Eduardo P. to meet Tina's parents, and was assured by them that their son
Manuel of bigamy in Criminal Case No. 19562-R. was still single.

Eduardo was charged with bigamy in an Information filed on
November 7, 2001, the accusatory portion of which reads:
That on or about the 22nd day of April, 1996, in
the City of Baguio, Philippines, and within the
Tina finally agreed to marry Eduardo sometime in the first
week of March 1996. They were married on April 22, 1996
before Judge Antonio C. Reyes, the Presiding Judge of
the RTC of Baguio City, Branch 61. [5] It appeared in their
marriage contract that Eduardo was 'single.

The couple was happy during the first three years of their
married life. Through their joint efforts, they were able to
build their home in Cypress Point, Irisan, Baguio City.
However, starting 1999, Manuel started making himself
scarce and went to their house only twice or thrice a year. Tina
was jobless, and whenever she asked money from Eduardo, he
would slap her.[6] Sometime in January 2001, Eduardo took
all his clothes, left, and did not return. Worse, he stopped
giving financial support.
Sometime in August 2001, Tina became curious and made
inquiries from the National Statistics Office (NSO) in Manila
where she learned that Eduardo had been previously married.
She secured an NSO-certified copy of the marriage
contract. [7]She was so embarrassed and humiliated when she
learned that Eduardo was in fact already married when they
exchanged their own vows. [8]
For his part, Eduardo testified that he met Tina sometime in
1995 in a bar where she worked as a Guest Relations Officer
(GRO). He fell in love with her and married her. He informed
Tina of his previous marriage to Rubylus Gaa, but she
nevertheless agreed to marry him. Their marital relationship
was in order until this one time when he noticed that she had
a 'love-bite on her neck. He then abandoned her. Eduardo
further testified that he declared he was 'single in his marriage
contract with Tina because he believed in good faith that his
first marriage was invalid. He did not know that he had to go
to court to seek for the nullification of his first marriage before
marrying Tina.
Eduardo further claimed that he was only forced to marry his
first wife because she threatened to commit suicide unless he
did so. Rubylus was charged with estafa in 1975 and
thereafter imprisoned. He visited her in jail after three months
and never saw her again. He insisted that he married Tina
believing that his first marriage was no longer valid because
he had not heard from Rubylus for more than 20 years.
After trial, the court rendered judgment on July 2, 2002
finding Eduardo guilty beyond reasonable doubt of bigamy.
He was sentenced to an indeterminate penalty of from six (6)
years and ten (10) months, as minimum, to ten (10) years, as
maximum, and directed to indemnify the private complainant
Tina Gandalera the amount of P200,000.00 by way of moral
damages, plus costs of suit. [9]
The trial court ruled that the prosecution was able to prove
beyond reasonable doubt all the elements of bigamy under
Article 349 of the Revised Penal Code. It declared that
Eduardo's belief, that his first marriage had been dissolved
because of his first wife's 20-year absence, even if true, did
not exculpate him from liability for bigamy. Citing the ruling
of this Court in People v. Bitdu, [10] the trial court further
ruled that even if the private complainant had known that
Eduardo had been previously married, the latter would still be
criminally liable for bigamy.
Eduardo appealed the decision to the CA. He alleged that he
was not criminally liable for bigamy because when he married
the private complainant, he did so in good faith and without
any malicious intent. He maintained that at the time that he
married the private complainant, he was of the honest belief
that his first marriage no longer subsisted. He insisted that
conformably to Article 3 of the Revised Penal Code, there
must be malice for one to be criminally liable for a felony. He
was not motivated by malice in marrying the private
complainant because he did so only out of his overwhelming
desire to have a fruitful marriage. He posited that the trial court
should have taken into account Article 390 of the New Civil
Code. To support his view, the appellant cited the rulings of
this Court in United States v. Pealosa [11] and Manahan, Jr.
v. Court of Appeals. [12]
The Office of the Solicitor General (OSG) averred that an indeterminate penalty of two (2) years, four
Eduardo's defense of good faith and reliance on the Court's (4) months and one (1) day of prision
ruling in United States v. Enriquez [13] were misplaced; what correccional, as minimum, to ten (10) years
is applicable is Article 41 of the Family Code, which amended of prision mayor as maximum. Said Decision
Article 390 of the Civil Code. Citing the ruling of this Court is AFFIRMED in all other respects.
in Republic v. Nolasco,[14] the OSG further posited that as
provided in Article 41 of the Family Code, there is a need for SO ORDERED. [17]
a judicial declaration of presumptive death of the absent
spouse to enable the present spouse to marry. Even assuming
that the first marriage was void, the parties thereto should not
be permitted to judge for themselves the nullity of the Eduardo, now the petitioner, filed the instant petition for
marriage; review on certiorari, insisting that:
the matter should be submitted to the proper court for
resolution. Moreover, the OSG maintained, the private I
complainant's knowledge of the first marriage would not THE COURT OF APPEALS COMMITTED
afford any relief since bigamy is an offense against the State REVERSIBLE ERROR OF LAW WHEN IT
and not just against the private complainant. RULED THAT PETITIONER'S FIRST WIFE
CANNOT BE LEGALLY PRESUMED
However, the OSG agreed with the appellant that the penalty DEAD UNDER ARTICLE 390 OF THE
imposed by the trial court was erroneous and sought the CIVIL CODE AS THERE WAS NO
affirmance of the decision appealed from with modification. JUDICIAL DECLARATION OF
PRESUMPTIVE DEATH AS PROVIDED
On June 18, 2004, the CA rendered judgment affirming the FOR UNDER ARTICLE 41 OF THE
decision of the RTC with modification as to the penalty of the FAMILY CODE.
accused. It ruled that the prosecution was able to prove all the
elements of bigamy. Contrary to the contention of the II
appellant, Article 41 of the Family Code should apply. Before THE COURT OF APPEALS COMMITTED
Manuel could lawfully marry the private complainant, there REVERSIBLE ERROR OF LAW WHEN IT
should have been a judicial declaration of Gaa's presumptive AFFIRMED THE AWARD OF
death as the absent spouse. The appellate court cited the PHP200,000.00 AS MORAL DAMAGES AS
rulings of this Court in Mercado v. Tan [15] and Domingo v. IT HAS NO BASIS IN FACT AND IN
Court of Appeals [16] to support its ruling. The dispositive LAW. [18]
portion of the decision reads:
The petitioner maintains that the prosecution failed to prove
WHEREFORE, in the light of the foregoing, the second element of the felony, i.e., that the marriage has not
the Decision promulgated on July 31, 2002 is been legally dissolved or, in case his/her spouse is absent, the
hereby MODIFIED to reflect, as it hereby absent spouse could not yet be presumed dead under the Civil
reflects, that accused-appellant is sentenced to Code. He avers that when he married Gandalera in 1996, Gaa
had been 'absent for 21 years since 1975; under Article 390 of
the Civil Code, she was presumed dead as a matter of law. He
points out that, under the first paragraph of Article 390 of the
Civil Code, one who has been absent for seven years, whether
or not he/she is still alive, shall be presumed dead for all
purposes except for succession, while the second paragraph
refers to the rule on legal presumption of death with respect to
succession.
The petitioner asserts that the presumptive death of the absent
spouse arises by operation of law upon the satisfaction of two
requirements: the
specified period and the present spouse's reasonable belief that
the absentee is dead. He insists that he was able to prove that
he had not heard from his first wife since 1975 and that he had
no knowledge of her whereabouts or whether she was still
alive; hence, under Article 41 of the Family Code, the
presumptive death of Gaa had arisen by operation of law, as
the two requirements of Article 390 of the Civil Code are
present. The petitioner concludes that he should thus be
acquitted of the crime of bigamy.
The petitioner insists that except for the period of absences
provided for in Article 390 of the Civil Code, the rule therein
on legal presumptions remains valid and effective. Nowhere
under Article 390 of the Civil Code does it require that there
must first be a judicial declaration of death before the rule on
presumptive death would apply. He further asserts that
contrary to the rulings of the trial and appellate courts, the
requirement of a judicial declaration of presumptive death
under Article 41 of the Family Code is only a requirement for
the validity of the subsequent or second marriage.
The petitioner, likewise, avers that the trial court and the CA
erred in awarding moral damages in favor of the private
complainant. The private complainant was a 'GRO before he
married her, and even knew that he was already married. He
genuinely loved and took care of her and gave her financial
support. He also pointed out that she had an illicit relationship
with a lover whom she brought to their house.
In its comment on the petition, the OSG maintains that the
decision of the CA affirming the petitioner's conviction is in
accord with the law, jurisprudence and the evidence on record.
To bolster its claim, the OSG cited the ruling of this Court
in Republic v. Nolasco. [19]
The petition is denied for lack of merit.
Article 349 of the Revised Penal Code, which defines and
penalizes bigamy, reads:
Art. 349. Bigamy. ' The penalty of prision
mayor shall be imposed upon any person who
shall contract a second or subsequent marriage
before the former marriage has been legally
dissolved, or before the absent spouse has been
declared presumptively dead by means of a
judgment rendered in the proper proceedings.
The provision was taken from Article 486 of the Spanish Penal
Code, to wit:
El que contrajere Segundo o ulterior
matrimonio sin hallarse legtimamente disuelto
el anterior, ser castigado con la pena de
prision mayor. xxx
The reason why bigamy is considered a felony is to preserve
and ensure the juridical tie of marriage established by
law. [20] The phrase 'or before the absent spouse had been
declared presumptively dead by means of a judgment rendered
in the proper proceedings' was incorporated in the Revised
Penal Code because the drafters of the law were of the
impression that in consonance with the civil law which
provides for the presumption of death after an absence of a
number of years, the judicial declaration of presumed
death like annulment of marriage should be a justification
for bigamy. [21]
For the accused to be held guilty of bigamy, the prosecution is
burdened to prove the felony: (a) he/she has been legally
married; and (b) he/she contracts a subsequent marriage
without the former marriage having been lawfully dissolved.
The felony is consummated on the celebration of the second
marriage or subsequent marriage. [22] It is essential in the
prosecution for bigamy that the alleged second marriage,
having all the essential requirements, would be valid were it
not for the subsistence of the first marriage. [23] Viada avers
that a third element of the crime is that the second marriage
must be entered into with fraudulent intent ( intencion
fraudulente) which is an essential element of a felony
by dolo. [24] On the other hand, Cuello Calon is of the view
that there are only two elements of bigamy: (1) the existence
of a marriage that has not been lawfully dissolved; and (2) the
celebration of a second marriage. It does not matter whether
the first marriage is void or voidable because such marriages
have juridical effects until lawfully dissolved by a court of
competent jurisdiction. [25] As the Court ruled in Domingo v.
Court of Appeals [26] and Mercado v. Tan, [27] under the
Family Code of the Philippines, the judicial declaration of
nullity of a previous marriage is a defense.
In his commentary on the Revised Penal Code, Albert is of the
same view as Viada and declared that there are three (3)
elements of bigamy: (1) an undissolved marriage; (2) a new
marriage; and (3) fraudulent intention constituting the felony
of the act. [28] He explained that:
' This last element is not stated in Article 349,
because it is undoubtedly incorporated in the
principle antedating all codes, and, constituting
one of the landmarks of our Penal Code, that,
where there is no willfulness there is no crime.
There is no willfulness if the subject
believes that the former marriage has been
dissolved; and this must be supported by very
strong evidence, and if this be produced, the act
shall be deemed not to constitute a crime. Thus,
a person who contracts a second marriage in
the reasonable and well-founded belief that his
first wife is dead, because of the many years
that have elapsed since he has had any news of
her whereabouts, in spite of his endeavors to
find her, cannot be deemed guilty of the crime
of bigamy, because there is no fraudulent intent
which is one of the essential elements of the
crime. [29]
As gleaned from the Information in the RTC, the petitioner is
charged with bigamy, a felony by dolo (deceit). Article 3,
paragraph 2 of the Revised Penal Code provides that there is
deceit when the act is performed with deliberate intent.
Indeed, a felony cannot exist without intent. Since a felony
by dolo is classified as an intentional felony, it is deemed
voluntary. [30]Although the words 'with malice do not appear
in Article 3 of the Revised Penal Code, such phrase is included
in the word 'voluntary. [31]
Malice is a mental state or condition prompting the doing of
an overt act without legal excuse or justification from which
another suffers injury. [32] When the act or omission defined
by law as a felony is proved to have been done or committed
by the accused, the law presumes it to have been
intentional. [33]Indeed, it is a legal presumption of law that
every man intends the natural or probable consequence of his
voluntary act in the absence of proof to the contrary, and such
presumption must prevail unless a reasonable doubt exists
from a consideration of the whole evidence. [34]

For one to be criminally liable for a felony by dolo, there must
be a confluence of both an evil act and an evil intent. Actus
non facit reum, nisi mens sit rea. [35]
In the present case, the prosecution proved that the petitioner
was married to Gaa in 1975, and such marriage was not
judicially declared a nullity; hence, the marriage is presumed
to subsist. [36] The prosecution also proved that the petitioner
married the private complainant in 1996, long after the
effectivity of the Family Code.
The petitioner is presumed to have acted with malice or evil
intent when he married the private complainant. As a general
rule, mistake of fact or good faith of the accused is a valid
defense in a prosecution for a felony by dolo; such defense
negates malice or criminal intent. However, ignorance of the
law is not an excuse because everyone is presumed to know
the law. Ignorantia legis neminem excusat.
It was the burden of the petitioner to prove his defense that
when he married the private complainant in 1996, he was of
the well-grounded belief
that his first wife was already dead, as he had not heard from
her for more than 20 years since 1975. He should have
adduced in evidence a decision of a competent court declaring
the presumptive death of his first wife as required by Article
349 of the Revised Penal Code, in relation to Article 41 of the
Family Code. Such judicial declaration also constitutes proof
that the petitioner acted in good faith, and would negate
criminal intent on his part when he married the private
complainant and, as a consequence, he could not be held guilty
of bigamy in such case. The petitioner, however, failed to
discharge his burden.
The phrase 'or before the absent spouse has been declared
presumptively dead by means of a judgment rendered on the
proceedings' in Article 349 of the Revised Penal Code was not
an aggroupment of empty or useless words. The requirement
for a judgment of the presumptive death of the absent spouse
is for the benefit of the spouse present, as protection from the
pains and the consequences of a second marriage, precisely
because he/she could be charged and convicted of bigamy if
the defense of good faith based on mere testimony is found
incredible.
The requirement of judicial declaration is also for the benefit
of the State. Under Article II, Section 12 of the Constitution,
the 'State shall protect and strengthen the family as a basic
autonomous social institution. Marriage is a social institution
of the highest importance. Public policy, good morals and the
interest of society require that the marital relation should be
surrounded with every safeguard and its severance only in the
manner prescribed and the causes specified by law. [37] The
laws regulating civil marriages are necessary to serve the
interest, safety, good order, comfort or general welfare of the
community and the parties can waive nothing essential to the
validity of the proceedings. A civil marriage anchors an
ordered society by encouraging stable relationships over
transient ones; it enhances the welfare of the community.
In a real sense, there are three parties to every civil marriage;
two willing spouses and an approving State. On marriage, the
parties assume new relations to each other and the State
touching nearly on every aspect of life and death. The
consequences of an invalid marriage to the parties, to innocent
parties and to society, are so serious that the law may well take
means calculated to ensure the procurement of the most
positive evidence of death of the first spouse or of the
presumptive death of the absent spouse [38] after the lapse of
the period provided for under the law. One such means is the
requirement of the declaration by a competent court of the
presumptive death of an absent spouse as proof that the
present spouse contracts a subsequent marriage on a well-
grounded belief of the death of the first spouse. Indeed, 'men
readily believe what they wish to be true, is a maxim of the
old jurists. To sustain a second marriage and to vacate a first
because one of the parties believed the other to be dead would
make the existence of the marital relation determinable, not by
certain extrinsic facts, easily capable of forensic ascertainment
and proof, but by the subjective condition of
individuals. [39]Only with such proof can marriage be treated
as so dissolved as to permit second marriages. [40] Thus,
Article 349 of the Revised Penal Code has made the
dissolution of marriage dependent not only upon the personal
belief of parties, but upon certain objective facts easily
capable of accurate judicial cognizance, [41] namely, a
judgment of the presumptive death of the absent spouse.
The petitioner's sole reliance on Article 390 of the Civil Code
as basis for his acquittal for bigamy is misplaced.
Articles 390 and 391 of the Civil Code provide '
Art. 390. After an absence of seven years, it
being unknown whether or not, the absentee
still lives, he shall be presumed dead for all
purposes, except for those of succession.
The absentee shall not be presumed dead for
the purpose of opening his succession till after
an absence of ten years. If he disappeared after
the age of seventy-five years, an absence of
five years shall be sufficient in order that his
succession may be opened.
Art. 391. The following shall be presumed
dead for all purposes, including the division of
the estate among the heirs:
(1) A person on board a vessel lost
during a sea voyage, or an
aeroplane which is missing, who
has not been heard of for four
years since the loss of the vessel or
aeroplane;
(2) A person in the armed forces
who has taken part in war, and has
been missing for four years;
(3) A person who has been in
danger of death under other
circumstances and his existence
has not been known for four years.
The presumption of death of the spouse who had been absent
for seven years, it being unknown whether or not the absentee
still lives, is created by law and arises without any necessity
of judicial declaration. [42] However, Article 41 of the Family
Code, which amended the foregoing rules on presumptive
death, reads:
Art. 41. A marriage contracted by any person
during the subsistence of a previous marriage
shall be null and void, unless before the
celebration of the subsequent marriage, the
prior spouse had been absent for four
consecutive years and the spouse present had a
well-founded belief that the absent spouse was
already dead. In case of disappearance where
there is danger of death under the
circumstances set forth in the provisions of
Article 391 of the Civil Code, an absence of
only two years shall be sufficient.
For the purpose of contracting the subsequent
marriage under the preceding paragraph, the
spouse present must institute a summary
proceeding as provided in this Court for the
declaration of presumptive death of the
absentee, without prejudice to the effect of
reappearance of the absent spouse . [43]
With the effectivity of the Family Code, [44] the period of
seven years under the first paragraph of Article 390 of the
Civil Code was reduced to four consecutive years. Thus,
before the spouse present may contract a subsequent marriage,
he or she must institute summary proceedings for the
declaration of the presumptive death of the absentee
spouse, [45] without prejudice to the effect of the
reappearance of the absentee spouse. As explained by this
Court in Armas v. Calisterio: [46]
In contrast, under the 1988 Family Code, in
order that a subsequent bigamous marriage
may exceptionally be considered valid, the
following conditions must concur, viz.: (a) The
prior spouse of the contracting party must have
been absent for four consecutive years, or two
years where there is danger of death under the
circumstances stated in Article 391 of the Civil
Code at the time of disappearance; (b) the
spouse present has a well-founded belief that
the absent spouse is already dead; and (c) there
is, unlike the old rule, a judicial declaration of
presumptive death of the absentee for which
purpose the spouse present can institute a
summary proceeding in court to ask for that
declaration. The last condition is consistent
and in consonance with the requirement of
judicial intervention in subsequent marriages
as so provided in Article 41, in relation to
Article 40, of the Family Code.
The Court rejects petitioner's contention that the requirement
of instituting a petition for declaration of presumptive death
under Article 41 of the Family Code is designed merely to
enable the spouse present to contract a valid second marriage
and not for the acquittal of one charged with bigamy. Such
provision was designed to harmonize civil law and Article 349
of the Revised Penal Code, and put to rest the confusion
spawned by the rulings of this Court and comments of eminent
authorities on Criminal Law.
As early as March 6, 1937, this Court ruled in Jones v.
Hortiguela [47] that, for purposes of the marriage law, it is not
necessary to have the former spouse judicially declared an
absentee before the spouse present may contract a subsequent
marriage. It held that the declaration of absence made in
accordance with the provisions of the Civil Code has for its
sole purpose the taking of the necessary precautions for the
administration of the estate of the absentee. For the celebration
of civil marriage, however, the law only requires that the
former spouse had been absent for seven consecutive years at
the time of the second marriage, that the spouse present does
not know his or her former spouse to be living, that such
former spouse is generally reputed to be dead and the spouse
present so believes at the time of the celebration of the
marriage. [48] In In Re Szatraw, [49] the Court declared that
a judicial declaration that a person is presumptively dead,
because he or she had been unheard from in seven years, being
a presumption juris tantum only, subject to contrary proof,
cannot reach the stage of finality or become final; and that
proof of actual death of the person presumed dead being
unheard from in seven years, would have to be made in
another proceeding to have such particular fact finally
determined. The Court ruled that if a judicial decree declaring
a person presumptively dead because he or she had not been
heard from in seven years cannot become final and executory
even after the lapse of the reglementary period within which
an appeal may be taken, for such presumption is still
disputable and remains subject to contrary proof, then a
petition for such a declaration is useless, unnecessary,
superfluous and of no benefit to the petitioner. The Court
stated that it should not waste its valuable time and be made
to perform a superfluous and meaningless act. [50] The Court
also took note that a petition for a declaration of the
presumptive death of an absent spouse may even be made in
collusion with the other spouse.

In Lukban v. Republic of the Philippines, [51] the Court
declared that the words 'proper proceedings' in Article 349 of
the Revised Penal Code can only refer to those authorized by
law such as Articles 390 and 391 of the Civil Code which refer
to the administration or settlement of the estate of a deceased
person. In Gue v. Republic of the Philippines, [52] the Court
rejected the contention of the petitioner therein that, under
Article 390 of the Civil Code, the courts are authorized to
declare the presumptive death of a person after an absence of
seven years. The Court reiterated its rulings in Szatraw,
Lukban and Jones.
Former Chief Justice Ramon C. Aquino was of the view that
'the provision of Article 349 or 'before the absent spouse has
been declared presumptively dead by means of a judgment
reached in the proper proceedings' is erroneous and should be
considered as not written. He opined that such provision
presupposes that, if the prior marriage has not been legally
dissolved and the absent first spouse has not been declared
presumptively dead in a proper court proceedings, the
subsequent marriage is bigamous. He maintains that the
supposition is not true. [53] A second marriage is bigamous
only when the circumstances in paragraphs 1 and 2 of Article
83 of the Civil Code are not present. [54] Former Senator
Ambrosio Padilla was, likewise, of the view that Article 349
seems to require judicial decree of dissolution or judicial
declaration of absence but even with such decree, a second
marriage in good faith will not constitute bigamy. He posits
that a second marriage, if not illegal, even if it be annullable,
should not give rise to bigamy. [55] Former Justice Luis B.
Reyes, on the other hand, was of the view that in the case of
an absent spouse who could not yet be presumed dead
according to the Civil Code, the spouse present cannot be
charged and convicted of bigamy in case he/she contracts a
second marriage. [56]
The Committee tasked to prepare the Family Code proposed
the amendments of Articles 390 and 391 of the Civil Code to
conform to Article 349 of the Revised Penal Code, in that, in
a case where a spouse is absent for the requisite period, the
present spouse may contract a subsequent marriage only after
securing a judgment declaring the presumptive death of the
absent spouse to avoid being charged and convicted of
bigamy; the present spouse will have to adduce evidence that
he had a well-founded belief that the absent spouse was
already dead.[57] Such judgment is proof of the good faith of
the present spouse who contracted a subsequent marriage;
thus, even if the present spouse is later charged with bigamy
if the absentee spouse reappears, he cannot be convicted of the
crime. As explained by former Justice Alicia Sempio-Diy:
' Such rulings, however, conflict with Art. 349
of the Revised Penal Code providing that the
present spouse must first ask for a declaration
of presumptive death of the absent spouse in
order not to be guilty of bigamy in case he or
she marries again.
The above Article of the Family Code now
clearly provides that for the purpose of the
present spouse contracting a second marriage,
he or she must file a summary proceeding as
provided in the Code for the declaration of the
presumptive death of the absentee, without
prejudice to the latter's reappearance. This
provision is intended to protect the present
spouse from a criminal prosecution for bigamy
under Art. 349 of the Revised Penal Code
because with the judicial declaration that the
missing spouses presumptively dead, the good
faith of the present spouse in contracting a
second marriage is already established. [58]
Of the same view is former Dean Ernesto L. Pineda (now
Undersecretary of Justice) who wrote that things are now
clarified. He says judicial declaration of presumptive death is
now authorized for purposes of
remarriage. The present spouse must institute a summary
proceeding for declaration of presumptive death of the
absentee, where the ordinary rules of procedure in trial will
not be followed. Affidavits will suffice, with possible
clarificatory examinations of affiants if the Judge finds it
necessary for a full grasp of the facts. The judgment declaring
an absentee as presumptively dead is without prejudice to the
effect of reappearance of the said absentee.
Dean Pineda further states that before, the weight of authority
is that the clause 'before the absent spouse has been declared
presumptively dead x x x should be disregarded because of
Article 83, paragraph 3 of the Civil Code. With the new law,
there is a need to institute a summary proceeding for the
declaration of the presumptive death of the absentee,
otherwise, there is bigamy. [59]
According to Retired Supreme Court Justice Florenz D.
Regalado, an eminent authority on Criminal Law, in some
cases where an absentee spouse is believed to be dead, there
must be a judicial declaration of presumptive death, which
could then be made only in the proceedings for the settlement
of his estate. [60]Before such declaration, it was held that the
remarriage of the other spouse is bigamous even if done in
good faith. [61] Justice Regalado opined that there were
contrary views because of the ruling in Jones and the
provisions of Article 83(2) of the Civil Code, which, however,
appears to have been set to rest by Article 41 of the Family
Code, which requires a summary hearing for the declaration
of presumptive death of the absent spouse before the other
spouse can remarry.
Under Article 238 of the Family Code, a petition for a
declaration of the presumptive death of an absent spouse under
Article 41 of the Family Code may be filed under Articles 239
to 247 of the same Code. [62]
On the second issue, the petitioner, likewise, faults the trial
court and the CA for awarding moral damages in favor of the
private complainant. The petitioner maintains that moral
damages may be awarded only in any of the cases provided in
Article 2219 of the Civil Code, and bigamy is not one of them.
The petitioner asserts that the appellate court failed to apply
its ruling in People v. Bondoc, [63] where an award of moral
damages for bigamy was disallowed. In any case, the
petitioner maintains, the private complainant failed to adduce
evidence to prove moral damages.
The appellate court awarded moral damages to the private
complainant on its finding that she adduced evidence to prove
the same. The appellate court ruled that while bigamy is not
included in those cases enumerated in Article 2219 of the Civil
Code, it is not proscribed from awarding moral damages
against the petitioner. The appellate court ruled that it is not
bound by the following ruling in People v. Bondoc:
... Pero si en dichos asuntos se adjudicaron
daos, ello se debi indedublamente porque el
articulo 2219 del Cdigo Civil de Filipinas
autoriza la adjudicacin de daos morales en los
delitos de estupro, rapto, violacin, adulterio o
concubinato, y otros actos lascivos, sin incluir
en esta enumeracin el delito de bigamia. No
existe, por consiguiente, base legal para
adjudicar aqu los daos de P5,000.00 arriba
mencionados. [64]
The OSG posits that the findings and ruling of the CA are
based on the evidence and the law. The OSG, likewise, avers
that the CA was not bound by its ruling in People v. Rodeo.
The Court rules against the petitioner.

Moral damages include physical suffering, mental anguish,
fright, serious anxiety, besmirched reputation, wounded
feelings, moral shock, social humiliation, and similar injury.
Though incapable of pecuniary computation, moral damages
may be recovered if they are the proximate result of the
defendant's wrongful act or omission. [65] An award for
moral damages requires the confluence of the following
conditions:first, there must be an injury, whether physical,
mental or psychological, clearly sustained by the
claimant; second, there must be culpable act or omission
factually established; third, the wrongful act or omission of
the defendant is the proximate cause of the injury sustained by
the claimant; and fourth, the award of damages is predicated
on any of the cases stated in Article 2219 or Article 2220 of
the Civil Code. [66]
Moral damages may be awarded in favor of the offended party
only in criminal cases enumerated in Article 2219, paragraphs
1, 3, 4, 5 and 7 of the Civil Code and analogous cases, viz.:
Art. 2219. Moral damages may be recovered
in the following and analogous cases.
(1) A criminal offense resulting in
physical injuries;
(2) Quasi-delicts causing physical
injuries;
(3) Seduction, abduction, rape, or
other lascivious acts;
(4) Adultery or concubinage;
(5) Illegal or arbitrary detention or
arrest;
(6) Illegal search;
(7) Libel, slander or any other form
of defamation;
(8) Malicious prosecution;
(9) Acts mentioned in article 309;
(10) Acts and actions referred to in
articles 21, 26, 27, 28, 29, 30, 32,
34 and 35.
The parents of the female seduced, abducted,
raped, or abused, referred to in No. 3 of this
article, may also recover moral damages.
The spouse, descendants, ascendants, and
brothers and sisters may bring the action
mentioned in No. 9 of this article in the order
named.
Thus, the law does not intend that moral damages should be
awarded in all cases where the aggrieved party has suffered
mental anguish, fright, moral anxieties, besmirched
reputation, wounded feelings, moral shock, social humiliation
and similar injury arising out of an act or omission of another,
otherwise, there would not have been any reason for the
inclusion of specific acts in Article 2219 [67] and analogous
cases (which refer to those cases bearing analogy or
resemblance, corresponds to some others or resembling, in
other respects, as in form, proportion, relation, etc.) [68]
Indeed, bigamy is not one of those specifically mentioned in
Article 2219 of the Civil Code in which the offender may be
ordered to pay moral damages to the private
complainant/offended party. Nevertheless, the petitioner is
liable to the private complainant for moral damages under
Article 2219 in relation to Articles 19, 20 and 21 of the Civil
Code.
According to Article 19, 'every person must, in the exercise of
his rights and in the performance of his act with justice, give
everyone his due, and observe honesty and good faith. This
provision contains what is commonly referred to as the
principle of abuse of rights, and sets certain standards which
must be observed not only in the exercise of one's rights but
also in the performance of one's duties. The standards are the
following: act with justice; give everyone his due; and observe
honesty and good faith. The elements for abuse of rights are:
(a) there is a legal right or duty; (b) exercised in bad faith; and
(c) for the sole intent of prejudicing or injuring another. [69]
Article 20 speaks of the general sanctions of all other
provisions of law which do not especially provide for its own
sanction. When a right is exercised in a manner which does
not conform to the standards set forth in the said provision and
results in damage to another, a legal wrong is thereby
committed for which the wrongdoer must be
responsible. [70] If the provision does not provide a remedy
for its violation, an action for damages under either Article 20
or Article 21 of the Civil Code would be proper. Article 20
provides that 'every person who, contrary to law, willfully or
negligently causes damage to another shall indemnify the
latter for the same. On the other hand, Article 21 provides that
'any person who willfully causes loss or injury to another in a
manner that is contrary to morals, good customs or public
policy shall compensate the latter for damages. The latter
provision
is adopted to remedy 'the countless gaps in the statutes which
leave so many victims of moral wrongs helpless, even though
they have actually suffered material and moral injury should
vouchsafe adequate legal remedy for that untold number of
moral wrongs which it is impossible for human foresight to
prove for specifically in the statutes. Whether or not the
principle of abuse of rights has been violated resulting in
damages under Article 20 or Article 21 of the Civil Code or
other applicable provisions of law depends upon the
circumstances of each case.[71]
In the present case, the petitioner courted the private
complainant and proposed to marry her. He assured her that
he was single. He even brought his parents to the house of the
private complainant where he and his parents made the same
assurance ' that he was single. Thus, the private complainant
agreed to marry the petitioner, who even stated in the
certificate of marriage that he was single. She lived with the
petitioner and dutifully performed her duties as his wife,
believing all the while that he was her lawful husband. For two
years or so until the petitioner heartlessly abandoned her, the
private complainant had no inkling that he was already
married to another before they were married.
Thus, the private complainant was an innocent victim of the
petitioner's chicanery and heartless deception, the fraud
consisting not of a single act alone, but a continuous series of
acts. Day by day, he maintained the appearance of being a
lawful husband to the private complainant, who
changed her status from a single woman to a married woman,
lost the consortium, attributes and support of a single man she
could have married lawfully and endured mental pain and
humiliation, being bound to a man who it turned out was not
her lawful husband. [72]
The Court rules that the petitioner's collective acts of fraud and
deceit before, during and after his marriage with the private
complainant were willful, deliberate and with malice and
caused injury to the latter. That she did not sustain any
physical injuries is not a bar to an award for moral damages.
Indeed, in Morris v. Macnab, [73] the New Jersey Supreme
Court ruled:
xxx The defendant cites authorities which
indicate that, absent physical injuries, damages
for shame, humiliation, and mental anguish are
not recoverable where the actor is simply
negligent. See Prosser, supra, at p. 180; 2
Harper & James, Torts, 1031 (1956). But the
authorities all recognize that where the wrong
is willful rather than negligent, recovery may
be had for the ordinary, natural, and proximate
consequences though they consist of shame,
 humiliation, and mental anguish. See Spiegel
v. Evergreen Cemetery Co., 117 NJL 90, 94,
186 A 585 (Sup. Ct. 1936); Kuzma v. Millinery
Workers, etc., Local 24, 27 N.J. Super, 579,
591, 99 A.2d 833 (App. Div. 1953); Prosser,
supra, at p. 38. Here the defendant's conduct
was not merely negligent, but was willfully and
maliciously wrongful. It was bound to result in
shame, humiliation, and mental anguish for the
plaintiff, and when such result did ensue the
plaintiff became entitled not only to
compensatory but also to punitive damages.
See Spiegel v. Evergreen Cemetery Co., supra;
Kuzma v Millinery Workers, etc., Local 24,
supra. CF. Note, 'Exemplary Damages in the
Law of Torts, 70 Harv. L. Rev. 517 (1957). The
plaintiff testified that because of the
defendant's bigamous marriage to her and the
attendant publicity she not only was
embarrassed and 'ashamed to go out but
'couldnt sleep but 'couldnt eat, had terrific
headaches' and 'lost quite a lot of weight. No
just basis appears for judicial interference with
the jury's reasonable allowance of $1,000
punitive damages on the first count. See
Cabakov v. Thatcher, 37 N.J. Super 249, 117
A.2d 298 (App. Div. [74] 1955).
The Court thus declares that the petitioner's acts are against
public policy as they undermine and subvert the family as a
social institution, good morals and the interest and general
welfare of society.
Because the private complainant was an innocent victim of the
petitioner's perfidy, she is not barred from claiming moral
damages. Besides, even considerations of public policy would
not prevent her from recovery. As held in Jekshewitz v.
Groswald: [75]
Where a person is induced by the fraudulent
representation of another to do an act which, in
consequence of such misrepresentation, he
believes to be neither illegal nor immoral, but
which is in fact a criminal offense, he has a
right of action against the person so inducing
him for damages sustained by him in
consequence of his having done such act.
Burrows v. Rhodes, [1899] 1 Q.B. 816. In
Cooper v. Cooper, 147 Mass. 370, 17 N.E. 892,
9 Am. St. Rep. 721, the court said that a false
representation by the defendant that he was
divorced from his former wife, whereby the
plaintiff was induced to marry him, gave her a
remedy in tort for deceit. It seems to have been
assumed that the fact that she had
unintentionally violated the law or innocently
committed a crime by cohabiting with him
would be no bar to the action, but rather that it
might be a ground for enhancing her damages.
The injury to the plaintiff was said to be in her
being led by the promise to give the fellowship
and assistance of a wife to one who was not her
husband and to assume and act in a relation and
condition that proved to be false and
ignominious. Damages for such an injury were
held to be recoverable in Sherman v. Rawson,
102 Mass. 395 and Kelley v. Riley, 106 Mass.
339, 343, 8 Am. Rep. 336.
Furthermore, in the case at bar the plaintiff
does not base her cause of action upon any
transgression of the law by herself but upon the
defendant's misrepresentation. The criminal
relations which followed, innocently on her
part, were but one of the incidental results of
 the defendant's fraud for which damages may
be assessed.
ROMEO J. CALLEJO, SR.
[7] Actions for deceit for fraudulently inducing ' Associate Justice
a woman to enter into the marriage relation
have been maintained in other jurisdictions.
Sears v. Wegner, 150 Mich. 388, 114 N.W.
224, 17 L.R. A. (N.S.) 819; Larson v.
McMillan, 99 Wash. 626, 170 P. 324; Blossom WE CONCUR:
v. Barrett, 37 N.Y. 434, 97 Am. Dec. 747;
Morril v. Palmer, 68 Vt. 1, 33 A. 829, 33
L.R.A. 411. Considerations of public policy
would not prevent recovery where the REYNATO S. PUNO
circumstances are such that the plaintiff was Associate Justice
conscious of no moral turpitude, that her illegal Chairman
action was induced solely by the defendant's
misrepresentation, and that she does not base
her cause of action upon any transgression of
the law by herself. Such considerations MA. ALICIA AUSTRIA-MARTINEZ DANTE O. TINGA
distinguish this case from cases in which the Associate Justice Associate Justice
court has refused to lend its aid to the
enforcement of a contract illegal on its face or
to one who has consciously and voluntarily On leave
become a party to an illegal act upon which the MINITA V. CHICO-NAZARIO
cause of action is founded. Szadiwicz v. Associate Justice
Cantor, 257 Mass. 518, 520, 154 N.E. 251, 49
A. L. R. 958. [76]

ATTESTATION
Considering the attendant circumstances of the case, the Court
finds the award of P200,000.00 for moral damages to be just
and reasonable. I attest that the conclusions in the above Decision were
reached in consultation before the case was assigned to the
IN LIGHT OF ALL THE FOREGOING, the petition writer of the opinion of the Court's Division.
is DENIED. The assailed decision of the Court of Appeals
is AFFIRMED. Costs against the petitioner.

SO ORDERED . REYNATO S. PUNO

' Associate Justice [15] G.R. No. 137110, August 1, 2000, 337 SCRA 122.
Chairman, Second Division [16] G.R. No. 104818, September 17, 1993, 226 SCRA 572.
[17] Rollo, p. 41.
[18] Rollo, pp. 14-15.
[19] Supra, at note 14.
[20] CUELLO CALON, DERECHO PENAL
CERTIFICATION REFORMADO, VOL. V, 627.
[21] aquino, the Revised Penal Code, vol. III, 497
(1988 ED.) (EMPHASIS SUPPLIED).
Pursuant to Section 13, Article VIII of the Constitution, and [22] Id. at 634.
the Division Chairman's Attestation, it is hereby certified that [23] People v. Dumpo, 62 Phil. 247 (1935).
the conclusions in the above decision were reached in [24] ' 'Tres son los elementos esenciales del mismo; el vinculo
consultation before the case was assigned to the writer of the matrimonial anterior, la celebracin de nuevo matrimonio
opinion of the Court's Division. antes de la disolucin de ese vinculo anterior, y por ultimo, la
intencin fraudulenta, que constituye la criminalidad misma
del acto. Este ultimo elemento no lo consigna el articulo, por
hallarse indudablemente embebido en ese principio anterior
HILARIO G. DAVIDE, JR. a todos los Codigos, e inscrito en el frontispicio del nuestro
Chief Justice (Art. I.), que donde no hay voluntad, no hay delito. xxx
(Codigo Penal Reformado, tomo 5, 560) Groizard is of the
Endnotes: view that bigamy may be committed by culpa. (id. at 558).
* On leave. [25] DERECHO PENAL REFORMADO, VOL. 1, 629-630.
[1] Penned by Associate Justice Jose C. Reyes, Jr., with [26] Supra, at note 16.
Associate Justices Conrado M. Vasquez, Jr. and Rebecca de [27] Supra, at note 15.
Guia-Salvador, concurring; rollo, pp. 28-41. [28] Albert, The revised Penal Code, 819 (1932 ed.).
[2] Penned by Judge Fernando Vil Pamintuan. [29] Id.
[3] Records, p. 1. [30] l.b. reyes, the Revised Penal Code, book one, 37
[4] Exhibit 'B, records, p. 7. (13th ed. 1993).
[5] Exhibit 'A, id. at 6. [31] United States v. Pealosa, 1 Phil. 109.
[6] TSN, April 23, 2002, p. 15. [32] Wharton, Criminal Law, Volume 1, 302.
[7] Exhibit 'B, records, p. 7. [33] People v. Vogel, 46 Cal.2d. 798; 299 P.2d 850 (1956).
[8] TSN, April 23, 2002, p. 15. [34] Wharton, Criminal Law, Vol. 1, 203.
[9] Records, pp. 111-116. [35] Manahan, Jr. v. Court of Appeals, G.R. No. 111656,
[10] 58 Phil. 817 (1933). March 20, 1996, 255 SCRA 202.
[11] 1 Phil. 109 (1902). [36] Marbella-Bobis v. Bobis, G.R. No. 138509, July 31,
[12] G.R. No. 111656, March 20, 1996, 255 SCRA 202. 2000, 336 SCRA 747.
[13] 32 Phil 202 (1915). [37] People v. Bitdu, supra, at note 10.
[14] G.R. No. 94053, March 17, 1993, 220 SCRA 20.
[38] Geisselman v. Geisselman, 134 Md. 453, 107 A. 185 [66] Id. at 266.
(1919).
[39] Wharton criminal law, vol. 2, 2377 (12th ed., 1932). [67] tolentino, new civil code, vol. ii, 658, citing People v.
[40] Id. Plaza, 52 O.G. 6609.
[41] Id. [68] Id.
[42] Tolentino, The New Civil Code, Vol. I, 690. [69] Albenson Enterprises Corp. v. Court of Appeals, G.R.
[43] Emphasis supplied. No. 88694, January 11, 1993, 217 SCRA 16.
[44] The Family Code (Executive Order No. 209) took effect [70] Globe Mackay Cable and Radio Corporation v. Court of
on August 4, 1988. Appeals, G.R. No. 81262, August 25, 1989, 176 SCRA 778.
[45] Navarro v. Domagtoy, A.M. No. MTJ-96-1088, July 19, [71] Id.
1996, 259 SCRA 129. [72] Leventhal v. Liberman, 186 N.E. 675 (1933).
[46] G.R. No. 136467, April 6, 2000, 330 SCRA 201. [73] 135 A.2d 657 (1957).
[47] 64 Phil. 179 (1937). [74] Id. at 662.
[48] Id. at 83. [75] Id. at 611-612.
[49] 81 Phil. 461 (1948). [76] 164 N.E. 609 (1929).
[50] Id. at 463.
[51] 98 Phil. 574 (1956).
[52] 107 Phil. 381 (1960).
[53] AQUINO, REVISED PENAL CODE, VOL. III, 490.
[54] Id. at 497.
[55] Padilla, Comments on the Revised Penal Code, Vol. IV,
717-718.
[56] The Revised Penal Code, 1981 ed., Vol. II, 906.
[57] Republic v. Nolasco, supra, at note 19.
[58] Handbook on The Family Code, 48-49.
[59] The Family Code of the Philippines annotated, 62-63
(1992 ed.).
[60] regalado, criminal law conspectus, 633 (1st ed., 2000),
citing Lukban v. Republic, supra.
[61] Id. citing People v. Reyes, CA-G.R. No. 12107-R, June
30, 1955, and People v. Malana, CA-G.R. No. 5347, January
30, 1940.
[62] Sempio-Diy, Handbook on the Family Code of the
Philippines, 358.
[63] CA-G.R. No. 22573-R, April 23, 1959.
[64] Article 2217, Civil Code.
[65] Francisco v. Ferrer, Jr., G.R. No. 142029, February 28,
2001, 353 SCRA 261.
G.R. No. 135919 May 9, 2003
PEOPLE OF THE PHILIPPINES, appellee,
vs.
DANNY DELOS SANTOS Y FERNANDEZ, appellant.
SANDOVAL-GUTIERREZ, J.:
For automatic review is the Decision1 dated October 2, 1998 of the
Regional Trial Court, Branch 21, Malolos, Bulacan, in Criminal Case
No. 3551798, finding appellant Danny delos Santos guilty of the crime
of murder and sentencing him to suffer the penalty of death.
In the Information2 dated February 23, 1998, appellant was charged with
murder, thus:
"That on or about the 6th day of November 1997, in the
Municipality of San Jose, Del Monte, Province of Bulacan,
Philippines, and within the jurisdiction of this Honorable Court,
the above-named accused, armed with a kitchen knife, with intent
to kill one Rod Flores y Juanitas, with evident premeditation,
treachery and taking advantage of superior strength, did then
and there willfully, unlawfully and feloniously attack, assault and
stab with the said kitchen knife said Rod Flores y Juanitas, hitting
him on the different parts of his body, thereby inflicting upon him
mortal wounds which directly caused his death."
Upon arraignment, appellant pleaded "not guilty."3 Thereafter, trial on
the merits ensued. The prosecution presented Marcelino de Leon, Marvin
Tablate, Dr. Benito Caballero and Romeo Flores as its witnesses.
Appellant and Sonny Bautista took the witness stand for the defense.
Marcelino De Leon testified that at around 8:00 p.m. of November 6,
1997, he saw Rod Flores drinking "gin" with Narciso Salvador, Marvin
Tablate and Jayvee Rainier at the latter's house in Sarmiento Homes, San
Jose del Monte, Bulacan.4 As he was about to fetch water from a nearby
faucet, he approached them and borrowed Flores' cart.5 While waiting for
the cart, he stood across Flores who was then seated and conversing with
the group.6Suddenly, appellant emerged from the back of Flores and
stabbed him with a knife,7 making an upward and downward
thrust.8 Flores ran after he was stabbed twice.9 Appellant pursued him
and stabbed him many times.10As a result, Flores' intestines bulged out
of his stomach.11 Appellant ceased stabbing Flores only after he saw him
dead. Thereafter, he turned his ire against Jayvee Rainier and chased
him. Fearful for his life, witness De Leon hid himself and later on
reported the incident to the police.12
Marvin Tablate corroborated De Leon's testimony. On cross-
examination, Tablate testified that he tried to help Flores by separating
him from the appellant who ran away.13 He also testified that the latter
joined his group at about 11:00 a.m. and kept on "coming back and
forth."
Dr. Caballero declared on the witness stand that Flores suffered twenty-
one (21) stab wounds in the frontal, posterior and lateral side of his body,
eleven (11) of which were fatal. Dr. Caballero said it was possible that
appellant was behind Flores considering the stab wounds inflicted at his
back.14 According to the doctor, Flores died because of "massive
external/internal hemorrhages due to multiple stab wounds in the thorax
and abdomen penetrating both lungs, heart, stomach, liver, spleen and
intestines."15
Romeo Flores testified that his son Rod Flores was then working at
Vitarich, Marilao, Bulacan, earning P600.00 every 15th day of the
month;16 that he spent P100,000.00 for his son's burial and wake; that he
has receipts in the amount of P19,110.00 spent for the funeral services
and the cost of the cemetery lot17 and a list of other expenses in the
amount of P35,960.00;18 and that his family has been grieving for the
loss of a loved one.
Appellant had a different version of the events. He denied the accusation
and declared that on November 6, 1997 at 8:00 p.m., he was in his
auntie's house in Muson, San Jose del Monte, Bulacan,19 forty (40)
meters away from the scene of the crime. He was then fetching
water.20 Earlier, at about 5:30 p.m., he and Flores met but they did not
greet each other. There was no altercation between them. Hence, he
could not understand why De Leon and Tablate testified against him.
Sonny Bautista testified that on that particular date and time, he and
appellant were in their auntie's house in San Jose del Monte,
Bulacan.21 They watched television up to 8:30 p.m. and then went home.
At about 10:00 p.m., appellant was arrested. Bautista did not inform the
policemen that they were watching television in their auntie's house at
the time the crime took place. Neither did he accompany appellant to the
police station.22
On October 2, 1998, the trial court rendered a Decision, the dispositive
portion of which reads:
"All premises considered, this Court resolves and so holds that
the prosecution has been able to establish the criminal culpability
of the accused beyond reasonable doubt. Accordingly, Danny
 delos Santos is hereby found guilty of the crime of Murder with
the qualifying circumstance of treachery.
"In the imposition of the penalty, the Court hereby takes into
account the brutality in the manner by which the life of the victim
was taken, and if only to serve as deterrent to others who might
be similarly obsessed, it is believed that the higher of the two
penalties provided should be meted to the accused herein. Absent
any circumstance that would mitigate the severity of his criminal
act and pursuant to Articles 248 of the Revised Penal Code, as
amended by Section 6, Republic Act no. 7659, the accused
Danny delos Santos y Fernandez is hereby sentenced to suffer the
penalty of Death by lethal injection.
"Further, the accused is condemned to indemnify the heirs of the
deceased the amount of P50,000.00 for the victim's death.
Moreover, accused delos Santos is ordered to pay the said heirs
of the deceased Rod Flores the following sums of money:
1. P264,000.00 for loss of earning capacity;
2. P55,070.00 for actual and compensatory damages;
3. P50,000.00 for moral damages;
4. P50,000.00 for exemplary damages.
"With costs against the accused.
"SO ORDERED."
In his Appellant's brief, appellant ascribes to the trial court the following
errors:
"I
THE COURT A QUO GRAVELY ERRED IN GIVING
FULL FAITH AND CREDENCE TO THE TESTIMONY
OF THE ALLEGED EYEWITNESSES, AND IN NOT
ACQUITTING ACCUSED-APPELLANT ON GROUND OF
REASONABLE DOUBT.
"II
THE COURT A QUO ERRED IN ORDERING ACCUSED-
APPELLANT TO INDEMNIFY THE HEIRS OF VICTIM
THE AMOUNT OF P50,000.00 FOR VICTIM'S DEATH;
P264,000.00 FOR LOSS OF EARNING CAPACITY;
P55,070.00 FOR ACTUAL AND COMPENSATORY
DAMAGES; P50,000.00 FOR MORAL DAMAGES; AND
P50,000.00 FOR EXEMPLARY DAMAGES."23
Appellant contends that there are some inconsistencies between the
testimonies of De Leon and Tablate, the prosecution witnesses. Also,
there is no evidence that he has a motive to kill Flores. In fact, there was
no previous heated argument or altercation between them. That the
prosecution witnesses executed their sworn statements only after two
months from the commission of the crime raises doubt as to their
credibility. Finally, the evidence for the prosecution failed to meet the
exacting test of moral certainty, hence, the trial court should not have
ordered him to indemnify the heirs of Flores.
The Solicitor General, in the Appellee's brief, counters that: (a) the
inconsistencies pointed out by appellant are minor and do not vitiate the
fact that he was the one who killed Flores; (b) appellant's defenses of
alibi and denial are worthless since he was positively identified by the
prosecution witnesses; (c) he failed to proffer any explanation why the
prosecution witnesses implicated him; (d) the crime was aggravated by
cruelty because he "butchered" Flores until his intestines bulged out of
his stomach; and (e) the heirs of Flores are entitled to indemnification as
it has been shown beyond reasonable doubt that appellant killed him.
The first assigned error involves a determination of the credibility of the
prosecution witnesses. Settled is the rule that when it comes to credibility
of witnesses, appellate courts generally do not overturn the findings of
trial courts. The latter are in a best position to ascertain and measure the
sincerity and spontaneity of witnesses through their actual observation of
the witnesses' manner of testifying, demeanor and behavior in court.24
We see no reason to deviate from this rule.
Appellant maintains that there are inconsistencies in the testimonies of
De Leon and Tablate. While De Leon testified that appellant did not join
Flores' group, however, Tablate declared that he was drinking "gin" with
them at about 11:00 a.m. De Leon testified that no one assisted Flores
when he was being attacked by appellant. However, Tablate stated that
he attempted to separate Flores from appellant after the former had
sustained two stab wounds.
The first alleged inconsistency is understandable. Unlike Tablate who
was with the group in a drinking spree, De Leon approached Flores only
when he borrowed the cart from the latter at about 8:00 p.m. He stayed
with Flores' group only for about thirty minutes,25 or up to 8:30 p.m.
Thus, he could not have observed that appellant joined the group earlier,
or at about 11: 00 a.m.
The second alleged inconsistency is a minor one that does not enfeeble xxx xxx xxx
the prosecution's theory that appellant killed Flores. Evident from De Atty. De la Cruz:
Leon's testimony is the fact that he was so shocked in witnessing the Q Was Rod Flores able to ran away?
gruesome killing of his companion. With such a state of mind, it would A Yes, sir.
be too much to demand from him a full recollection of the details Q Where were you when Rod Flores was running away?
surrounding the event. Many times we have ruled that inconsistencies in A We were left behind, sir. I was not able to move anymore.
the testimony of witnesses when referring only to minor details and Q And was the accused able to reach Flores?
collateral matters do not affect the substance of their declaration, their A Yes, sir.
veracity, or the weight of their testimony.26 They only serve to Q What did the accused do?
strengthen rather than weaken the credibility of witnesses for they erase A Again, he started stabbing at the back, sir.
the suspicion of a rehearsed testimony.27 What we find important in the Q So the stabbing was inflicted at the back of the victim?
case at bar is that the two prosecution witnesses were one in saying that A Not all, sir, because he turned him face up and stabbed
it was appellant who stabbed Flores with a knife. We quote the clear and him again, sir."28
straightforward account of the incident by De Leon and Tablate. During Tablate's direct testimony reads:
cross-examination, De Leon testified as follows: "Fiscal Vicente:
"Atty. De la Cruz: xxx xxx xxx
Q You did not see the accused because it was dark in that Q How did Danny delos Santos stab Rod Flores?
place, is it not? A "Patalikod," sir.
A No, sir, he suddenly appeared from the back of Rod Q What do you mean?
Flores and started stabbing Rod that is why we were A Danny delos Santos stabbed Rod Flores at the back,
surprised. sir.
Court: Q When you said Danny delos Santos stabbed Rod
Q How did the accused thrust the weapon to the victim? Flores at the back, are you saying that Danny delos Santos
A (Witness demonstrating by making upward, was at the back of Rod Flores at the time?
downward thrust at the back of the victim) A Yes, sir.
Atty. De la Cruz: Q How many times did the accused stab Rod Flores?
Q Where was Rod Flores hit, if you know? A I saw him stabbed the victim twice, sir. (Witness
A At the back, sir. demonstrated in downward position as if he was holding
Q How many times? something).
A At first, twice, sir. Q What was he holding?
Court: A A knife, sir.
Q That was the time when Rod Flores ran away after having xxx xxx xxx
been stabbed twice. Court:
A Yes, Your Honor. xxx xxx xxx
xxx xxx xxx Q Are you sure that when Rod Flores fell to the ground,
Court: he was not able to rise nor was he able to run away?
Q How did the accused thrust for the second time the A He was able to run but then he was drunk and the
weapon at the back of the victim. accused was able to catch and stab him again, sir.
A Both at the back, sir. xxx xxx xxx
 Q Are you positive to the identity of Danny delos Santos
that he was the one who stabbed Rod Flores?
A Yes, sir." 29
Appellant argues that since the prosecution witnesses testified that there
was no altercation between him and Flores, it follows that no motive to
kill can be attributed to him. This is an inconsequential argument. Proof
of motive is not indispensable for a conviction, particularly where
the accused is positively identified by an eyewitness and his
participation is adequately established.30 In People vs. Galano,31 we
ruled that in the crime of murder, motive is not an element of the offense,
it becomes material only when the evidence is circumstantial or
inconclusive and there is some doubt on whether the accused had
committed it. In the case before us, no such doubt exits as De Leon and
Tablate positively identified appellant.
In a last-ditch attempt to cast doubt on the testimonies of the prosecution
witnesses, appellant questions why their statements were taken only on
January 29, 1998 when the incident happened on November 6, 1997. The
two-month delay is hardly an indicium of a concocted story. It is but
natural for witnesses to avoid being involved in a criminal proceeding
particularly when the crime committed is of such gravity as to show the
cruelty of the perpetrator. Born of human experience, the fear of
retaliation can have a paralyzing effect to the witnesses.32 Thus,
in People vs. Dacibar,33 we held that the initial reluctance of witnesses to
volunteer information about a criminal case is of common knowledge
and has been judicially declared as insufficient to affect credibility,
especially when a valid reason exists for such hesitance.
Anent the second error, appellant contends that the trial court erred in
indemnifying the heirs of Flores since his guilt was not proved beyond
reasonable doubt. Suffice it to state at this point that the evidence for the
prosecution produces moral certainty that appellant is guilty of the crime
charged, hence, should be answerable for all its consequences.
As earlier mentioned, appellant's defenses are mere alibi and denial. He
testified that at the time the crime took place, he was in his auntie's house
in Muson; San Jose del Monte, Bulacan. When probed by the trial court,
he categorically stated that the house is only 40 meters away from the
scene of the crime and may be traveled in about three or five
minutes.34 For the defense of alibi to prosper, it must be convincing
enough to preclude any doubt on the physical impossibility of the
presence of the accused at the locus criminis at the time of the
incident.35 Certainly, the required impossibility does not exist here.
Weighing the evidence of the prosecution vis-à-vis that of the defense,
the scale of justice must tilt in favor of the former. Time and again, we
ruled that positive identification, where categorical and consistent and
without any showing of ill-motive on the part of the eyewitnesses
testifying on the matter, prevails over alibi and denial which, if not
substantiated by clear and convincing proof, are negative and self-
serving evidence undeserving of weight in law.36 With marked relevance
is the fact that appellant did not present any evidence to show that the
prosecution witnesses, in testifying against him, have improper motive.
The prosecution was able to establish that appellant's attack on Flores
was from behind without any slightest provocation on his part37 and that
it was sudden and unexpected. This is a clear case of treachery. Where
the victim was totally unprepared for the unexpected attack from behind
with no weapon to resist it, the stabbing could only be described as
treacherous.38 There being treachery, appellant's conviction for murder is
in order.
However, in the imposition of penalty, we cannot appreciate the
aggravating circumstance of cruelty considered by the trial court.
Pursuant to the 2000 Revised Rules of Criminal Procedure, every
Information must state not only the qualifying but also the aggravating
circumstances.39 This rule may be given retroactive effect in the light of
the well-established rule that statutes regulating the procedure of the
courts will be construed as applicable to actions pending and
undetermined at the time of their passage.40 The aggravating
circumstance of cruelty, not having been alleged in the Information, may
not be appreciated to enhance the liability of appellant.
Under Article 24841 of the Revised Penal Code, the penalty for the
consummated crime of murder is reclusion perpetua to death. In this
case, the lesser of the two indivisible penalties shall be imposed, there
being neither mitigating nor aggravating circumstances attending the
crime.42
In keeping with the current jurisprudence, the heirs of Flores are entitled
to the amount of P50,000.00 by way of civil indemnity ex delicto.43 As
regards the actual damages, it appears that out of the P55,070.00
awarded by the trial court, only P19,170.0044 was actually supported by
receipts. The other amounts were based solely on a list prepared by
Romeo Flores. To be entitled to actual damages, it is necessary to prove
the actual amount of loss with a reasonable degree of certainty, premised indemnity, P25,0000.00 as temperate damages, P50,000.00 as moral
upon competent proof and on the best evidence obtainable to the injured damages, P25,000.00 as exemplary damages, and P266,400.00 for loss
party.45 In the case at bar, the prosecution failed to present receipts for of earning capacity.
the other expenses incurred. Thus, in light of the recent case of People Costs de oficio.
vs. Abrazaldo,46 we grant the award of P25,000.00 as temperate damages SO ORDERED.
inasmuch as the proven actual damages is less than P25,000.00. The Davide, Jr ., C .J ., Bellosillo, Puno, Vitug, Panganiban, Quisumbing,
moral damages awarded in the amount of P50,000.00 is affirmed, there Ynares-Santiago, Carpio, Austria-Martinez, Corona, Carpio-Morales,
being proofs that because of Flores' death, his heirs suffered wounded Callejo, Sr., and Azcuna, JJ ., concur.
feelings, mental anguish, anxiety and similar injury.47 However, we
reduce to P25,000.00 only the trial court's award of P50,000.00 as
exemplary damages.48 Footnotes
1
The amount of indemnity for loss of earning capacity is based on the Penned by Judge Cesar M. Solis, Rollo at 123-128.
2
income at the time of death and the probable life expectancy of the Rollo at 2.
3
victim. In the case at bar, the trial court found that Flores' annual gross Records at 15.
4
income is P14,400.00 computed at the rate of P1,200.00 a month for TSN, July 3, 1998 at 2; July 1, 1998 at 4.
5
twelve (12) months. From this amount is deducted the necessary and TSN, July 1, 1998 at 5.
6
incidental expenses, estimated at 50%, leaving a balance of P7,200.00. Id. at 4.
7
His net income would then be multiplied by his life expectancy, using TSN, July 3, 1998 at 4.
8
the following formula: 2/3 x 80 - 25 (age of the victim at time of death). Id. at 5.
9
Considering that he was 25 years old when he died, his life expectancy Id.
10
would be 37. Multiplying the net balance of his annual income by his life Id.
11
expectancy, the loss of his earning is P266,400.00, thus: Id.
12
"In computing the life expectancy and loss of earning capacity of Id. at 6.
13
a person the following formula is used: Id. at 8.
14
Life expectancy - TSN, September 21, 1998 at 3.
15
2/3 x (80 - the age of the victim at the time of death) RTC Decision at 17, Rollo at 124.
16
2/3 x (80 - 25) TSN, September 1, 1998 at 8.
17
2/3 x 55 Id.
18
= 36.66 or 37 Records at 99.
19
Loss of earning capacity - TSN, September 28, 1998 at 2.
20
net annual income x life expectancy Id. at 4.
21
P7,200 x 37 Id. at 7.
22
= P266,400.00" 49 Id. at 8.
23
WHEREFORE, the Decision dated October 2, 1998 of the Regional Rollo at 47-57.
24
Trial Court, Branch 21, Malolos, Bulacan, in Criminal Case No. People vs. Ave, G.R. Nos. 137274-75, October 18,
3551798, finding appellant Danny delos Santos y Fernandez guilty of the 2002; People vs. Alfanta, 378 Phil 95 (2000).
25
crime of murder is AFFIRMED with MODIFICATION in the sense that TSN, July 1, 1998 at 5.
26
he is sentenced to suffer the penalty of reclusion perpetua and to pay the People vs. Bato, 382 Phil. 558 (2000).
27
heirs of the late Rod Flores y Juanitas the amounts of P50,000.00 as civil People vs. Dando, 382 Phil. 290 (2000).
28 48
TSN, July 3, 1998 at 5-6. People vs. Catubig, G.R. No. 137842, August 23, 2001, 363
29
TSN, August 17, 1998 at 3-8. SCRA 636.
30 49
People vs. Lozada, G.R. No. 130589, June 29, 2000, 334 People vs. Cabande, 381 Phil. 889 (2000). People vs. Rubio,
SCRA 602; Lack of motive for committing the crime does not G.R. No. 128871, March 17, 2003; See also People vs. Visperas,
preclude conviction for such crime when the crime and Jr., G.R. No. 147315, January 13, 2003, citing People vs. Laut,
participation of the accused are definitely proved. People vs. G.R. No. 137751, February 1, 2001, 351 SCRA 93.
Quillosa, 382 Phil. 638 (2000).
31
384 Phil. 206 (2000).
32
Fear of reprisal and the natural reluctance of a witness to get
involved in a criminal case are sufficient explanations for a
witness' delay in reporting a crime to the authorities. (People vs.
Galido, 383 Phil. 61 (2000).
33
382 Phil. 618 (2000).
34
TSN, September 28, 1998 at 4-5.
35
People vs. Tanail, 380 Phil. 646 (2000).
36
People vs. Jose, 381 Phil. 845 (2000).
37
People vs. Aquino, 379 Phil. 845 (2000); People vs. Lumacang,
381 Phil. 266 (2000).
38
People vs. Mendoza, G.R. No. 128890, May 31, 2000, 332
SCRA 485.
39
Section 8, Rule 110.
40
People vs. Antonio, G.R. No. 144266, November 27,
2002; People vs. Arrojado, G.R. No. 130492, January 31, 2001,
350 SCRA 679.
41
Article 248 of the Revised Penal Code provides:
"ART. 248. Murder. - Any person who, not falling within
the provisions of Article 246 shall kill another, shall be
guilty of murder and shall be punished by reclusion
perpetua to death . . . ."
42
People vs. Alcodia, G.R. No. 134121, March 5, 2003; Article
63 (2) of the Revised Penal Code; People vs. Piedad, G.R. No.
131923, December 5, 2002.
43
People vs. Ilo, G.R. No. 140731, November 21, 2002.
44
Records at 99, 100-103.
45
People vs. Acosta, G.R. No. 140386, November 29,
2001; People vs. Suelto, 381 Phil. 351 (2000); People vs.
Samolde, G.R. No. 128551, July 31, 2000, 336 SCRA 632.
46
G.R. No. 124392, February 6, 2003.
47
People vs. Manlansing, G.R. No. 131736, March 11, 2002.
G.R. No. 152527 October 20, 2005
JOEY GUIYAB y DANAO, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
QUISUMBING, J.:
This petition for review seeks to set aside the Decision1 dated September
27, 2001 of the Court of Appeals in CA-G.R. CR No. 23703, affirming
the Decision of the Regional Trial Court, Branch 22, Cabagan, Isabela, in
Criminal Case No. 22-1074, convicting Joey Guiyab of Homicide, and
the Resolution2 dated February 26, 2002 denying his motion for
reconsideration.
On March 11, 1993, petitioner Joey Guiyab was charged with Homicide
before the Regional Trial Court of Cabagan. The Information reads:
That on or about the 12th day of December, 1992, in the [M]unicipality
of Tumauini, [P]rovince of Isabela, Philippines, and within the
jurisdiction of this Honorable Court, the said accused, did then and there
willfully, unlawfully and feloniously, with intent to kill and without any
just motive, assault, attack and stab with a bladed pointed instrument one
Rafael Bacani, inflicting upon him, a stab wound on the right anterior
back wall, which directly caused his death.
CONTRARY TO LAW. 3
On arraignment, petitioner, with the assistance of counsel, pleaded not
guilty. Trial on the merits ensued.
Prosecution witness JOSEPH MADRIAGA testified that on December
12, 1992 at about 9:00 p.m., while the victim Rafael Bacani and he were
conversing in front of the Community Center in Tumauini, a certain Juan
Sanchez approached and kicked them. As they posed for a fist fight,
petitioner Joey Guiyab uttered "Pureban nu ta inanna nu" (You try and
you will see.) while brandishing a knife. He recalled that he retreated and
jumped over the fence. He then picked up a stone, grabbed Juan Sanchez
by the hair and struck him in the head. It was then that petitioner chased
him. Failing to catch him, petitioner turned to Rafael who was following
them. Petitioner stabbed Rafael once on the right chest. Rafael ran a few
meters before he fell. Joseph and Rafael’s brother, Bong Matias, brought
the victim to the hospital.
DR. ERASMO A. CRUZ, the resident physician of Isabela Integrated
Provincial Health Office (otherwise known as the Isabela Provincial
Hospital), testified that at around 10:45 in the evening of December 12,
1992, he attended to Rafael Bacani. Rafael had a 1.5 centimeter stab
wound located on the fourth interpostal state (middle part of the chest
above the nipple). The victim died, according to the medical certificate,
of cardiorespiratory arrest, the antecedent cause of which is hypovolemic
shock and the underlying cause is the stab wound at the anterior chest.
He died at about 6:25 a.m. the next day.
VISITACION MATIAS VDA. DE BACANI, the victim’s mother,
testified that she spent ₱10,000 for the medical expenses, ₱18,000 for the
coffin and ₱30,000 for the other funeral expenses.
For his part, petitioner raised the defense of alibi. JOEY GUIYAB
testified that he was not at Tumauini Cultural and Sports Center at the
time the incident happened. He averred that he was farming until 5:00
p.m. at Sitio Bayabo, Camasi, and slept at around 9:00 p.m. in their
house at Sitio Bayabo. His testimony was corroborated by Domingo
Gumaru, and petitioner’s parents, Silvino and Vicenta Guiyab.
DOMINGO GUMARU, petitioner’s neighbor, testified that he saw the
petitioner at Sitio Bayabo at 6:00 p.m. on December 12, 1992 and again
at 8:00 a.m. of December 13, 1992. He also testified that to go to the
Centro (the town center of Tumauini) from Camasi, one has to go to
Cumabao and take a jeep there to the Centro. In 1992, there were only
three passenger vehicles plying Cumabao to Centro and the last trip was
at around 4:00 p.m.
As rebuttal, the prosecution presented SP04 ROMEO TUMOLVA who
swore that he personally knows the petitioner as he is a "compadre" of
the petitioner’s parents. He testified seeing the petitioner along the
fenced area of the Community Center at the night of the incident.
On July 7, 1999, the trial court rendered judgment,4 the decretal portion
of which reads:
WHEREFORE, the Court hereby renders judgment finding the accused
Joey Guiyab GUILTY beyond reasonable doubt of the crime of
Homicide as defined and penalized under Article 249 of the Revised
Penal Code and hereby sentences him to suffer an indeterminate penalty
of prision mayor medium to reclusion temporal minimum or from eight
(8) years and one (1) day to fourteen (14) years and eight (8) months, to
pay the Heirs of Rafael Bacani ₱50,000.00 as death indemnity, plus
₱30,000.00 for actual damages and ₱18,000.00 for funeral expenses,
without subsidiary imprisonment in case of insolvency. Costs de officio.
SO ORDERED.5
The case was elevated to the Court of Appeals. The appellate court
affirmed the trial court’s decision and denied petitioner’s motion for
reconsideration.
Petitioner now comes before us raising the following issues:
I.
WHETHER OR NOT THE GUILT OF THE PETITIONER WAS
PROVEN BEYOND REASONABLE DOUBT TO CONVICT HIM OF
THE CRIME CHARGED.
II.
WHETHER OR NOT THE IDENTITY OF THE ACCUSED AS THE
ASSAILANT WAS FULLY ESTABLISHED BY THE
PROSECUTION.6
The core issue of the present case is whether the guilt of the petitioner
was established beyond reasonable doubt. We must likewise inquire as to
whether the petitioner was adequately identified.
Petitioner claims that the real identity of the assailant was not fully
established by the prosecution since the lone eyewitness learned the
name of the petitioner only after it was fed to him by Police Officer
Armando Lugo. Petitioner contends that the identification of the
petitioner was tainted with conjecture and speculation.
The Solicitor General counters that Joseph Madriaga witnessed the
whole incident and positively identified the petitioner. This is sufficient
to convict petitioner.
We have carefully examined the records and find nothing in them that
supports petitioner’s claim that his identification was tainted with
conjectures and speculation. Our review of the transcript shows that
Joseph Madriaga testified in a categorical and straightforward manner on
the events leading to the death of Rafael Bacani. We quote:
Q: Do you know Joey Guiyab?
A: Yes, sir.
Q: Tell the Court why you know him?
A: I know him to be a resident of San Vicente and I often see his face.
Q: If Joey Guiyab is in Court, could you point him?
A: Yes, sir.
Q: Please point to him.
Court Interpreter:
Witness pointing to a person who when asked gave his name as Joey
Guiyab.
...
Q: After Juan Sanchez hit you with (sic) Rafael Bacani with one single
kick, what did you do?
A: Because we were surprised by the kick of Juan Sanchez we acted by
preparing our fists to fight back but this Joey Guiyab took his knife and
said in the Ibanag dialect "Pureban nu ta inanna nu" which means you try
and you will see.
Q: After Joey Guiyab brought out a knife and said to you, you try and
you will see, what happened next?
A: I moved back and jumped over the fence.
Q: Will you please tell the Honorable Court why you jumped over the
fence?
A: Because Joey Guiyab is trying to attack me with his balisong.
Q: While (sic) you jumped over the fence what happened next?
A: After jumping over the fence, I picked up a stone and when I saw
Juan Sanchez I hit him with a stone.
Q: When you went over that fence, where was Rafael Bacani?
A: He ran inside the premises.
Q: After you hit Juan Sanchez with a stone what happened next?
A: Then Joey Guiyab chased me.
Q: Did he overtake you when he chased you?
A: No, sir.
Q: Now, when he was not able to overtake you, what did he do?
A: Because he was not able to chase me he was able to get hold of Rafael
Bacani and that was the time he stabbed him.
Q: When Joey Guiyab stabbed Rafael Bacani was Rafael Bacani hit?
A: Yes, sir.
Q: What part of his body?
A: Here, sir.
Court Interpreter:
Witness pointing to a portion of his right chest near the nipple.
...
Q: When Rafael Bacani was hit and stabbed with a knife, how far were
you?
A: Five (5) meters.
...
Q: You saw the accused stabbed (sic) Rafael Bacani, is it not?
A: Yes, sir.7
As a rule, appellate courts will not interfere with the judgment of the trial
court in passing upon the credibility of a witness, unless there appears in
the record some fact or circumstance of weight and influence which has Associate Justice
been overlooked, or the significance of which has been misinterpreted or CERTIFICATION
misapprehended.8 That general rule holds true in this case. Pursuant to Section 13, Article VIII of the Constitution, it is hereby
We do not doubt Joseph’s identification of Joey Guiyab. Even if he did certified that the conclusions in the above Decision were reached in
not know the name of the petitioner prior to the incident, he was able to consultation before the case was assigned to the writer of the opinion of
identify him in open court. Besides, Joseph maintained that although he the Court’s Division.
did not know the name of the petitioner, he knew him by his face.9 There HILARIO G. DAVIDE, JR.
is nothing in law or jurisprudence which requires, as a condition sine qua Chief Justice
non, that, for a positive identification of a felon by a prosecution witness
to be good, the witness must first know the former personally.10 The
witness need not have to know the name of the accused for so long as he Footnotes
recognizes his face.11 We ruled that "knowing the identity of an accused 1
Rollo, pp. 71-95. Penned by Associate Justice Remedios A.
is different from knowing his name. Hence, the positive identification of Salazar-Fernando, with Associate Justices Romeo A. Brawner,
the malefactor should not be disregarded just because his name was and Mariano C. Del Castillo concurring.
2
supplied to the eyewitness. The weight of the eyewitness account is Id. at 101.
3
premised on the fact that the said witness saw the accused commit the Records, p. 1.
crime, and not because he knew his name."12 4
Rollo, pp. 25-31.
5
WHEREFORE, the petition is DENIED. The Decision dated Id. at 31.
6
September 27, 2001 and the Resolution dated February 26, 2002 of the Id. at 14.
7
Court of Appeals in CA-G.R. CR No. 23703, which sustained the TSN, 11 May 1993, pp. 15, 19-23 (Joseph Madriaga).
8
judgment of the Regional Trial Court, finding petitioner JOEY GUIYAB People v. Federico, G.R. No. 146956, 25 July 2003, 407 SCRA
guilty of Homicide and sentencing him to suffer an indeterminate penalty 290, 296.
9
of prision mayor medium to reclusion temporal minimum or from eight Supra, note 7 at 40-42.
10
(8) years and one (1) day to fourteen (14) years and eight (8) months, and People v. Barreta, G.R. No. 120367, 16 October 2000, 343
to PAY the heirs of Rafael Bacani ₱50,000.00 as death indemnity, plus SCRA 199, 208.
₱30,000.00 for actual damages and ₱18,000.00 for funeral expenses, 11
People v. Vaynaco, G.R. No. 126286, 22 March 1999, 305
without subsidiary imprisonment in case of insolvency, SCRA 93, 100.
12
are AFFIRMED. People v. Agsunod, Jr., G.R. No. 118331, 3 May 1991, 306
Costs de oficio. SCRA 612, 622.
SO ORDERED.
LEONARDO A. QUISUMBING
Associate Justice
WE CONCUR:
HILARIO G. DAVIDE, JR.
Chief Justice
Chairman
CONSUELO YNARES-SANTIAGO, ANTONIO T. CARPIO
Associate Justice Associate Justice
ADOLFO S. AZCUNA
G.R. No. L-66884 May 28, 1988
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
VICENTE TEMBLOR alias "RONALD," defendant-appellant.
The Solicitor General for plaintiff-appellee.
Wilfred D. Asis for defendant-appellant.
GRIÑO-AQUINO, J.:
The accused-appellant Vicente Temblor alias "Ronald" was charged with
the crime of murder in Criminal Case No. 1809 of the Court of First
Instance (now Regional Trial Court) of Agusan del Norte and Butuan
City for shooting to death Julius Cagampang. The information alleged:
That on or about the evening of December 30, 1980 at
Talo-ao, Buenavista, Agusan del Norte, Philippines and
within the jurisdiction of this Honorable Court, the said
accused conspiring, and confederating with one another
with Anecito Ellevera who is at large, did then and there
wilfully, unlawfully and feloniously, with treachery and
with intent to kill, attack, assault and shoot with firearms
one Julius Cagampang, hitting the latter on the vital parts
of the body thereby inflicting mortal wounds, causing the
direct and instantaneous death of the said Julius
Cagampang.
CONTRARY TO LAW: Article 248 of the Revised Penal
Code.
Upon arraignment on June 8, 1982, he entered a plea of not guilty. After
trial, he was convicted and sentenced to suffer the penalty of reclusion
perpetua, with the accessory penalties thereof under Articles 41 and 42
of the Revised Penal Code, and to indemnify the heirs of the victim in
the amount of P12,000 without subsidiary imprisonment in case of
insolvency. He appealed.
The evidence of the prosecution showed that at about 7:30 in the evening
of December 30, 1980, while Cagampang, his wife and their two
children, were conversing in the store adjacent to their house in
Barangay Talo-ao, Buenavista, Province of Agusan del Norte, the
accused Vicente Temblor alias Ronald, arrived and asked to buy a half-
pack of Hope cigarettes. While Cagampang was opening a pack of
cigarettes, there was a sudden burst of gunfire and Cagampang instantly
fell on the floor, wounded and bleeding on the head. His wife Victorina,
upon seeing that her husband had been shot, shouted her husband's name
"Jul" Two persons, one of whom she later Identified as the accused,
barged into the interior of the store through the main door and demanded
that she brings out her husband's firearm. "Igawas mo ang iyang armas!"
("You let out his firearm!") they shouted. The accused fired two more
shots at the fallen victim. Terrified, Victorina hurried to get the "maleta"
(suitcase) where her husband's firearm was hidden. She gave the suitcase
to the accused who, after inspecting its contents, took her husband's .38
caliber revolver, and fled.
In 1981, some months after the incident, Victorina was summoned to the
Buenavista police station by the Station Commander Milan, where she
saw and Identified the accused as the man who killed her husband.
The accused's defense was an alibi. He alleged that from 4:00 o'clock in
the afternoon of December 30, 1980, he and his father had been in the
house of Silverio Perol in Barangay Camagong, Nasipit, Agusan del
Norte, where they spent the night drinking over a slaughtered dog as
"pulutan," until 8:00 o'clock in the morning of the following day,
December 31, 1980.
The accused and his companion, admittedly members of the dreaded
NPA (New People's Army) were not apprehended earlier because they
hid in the mountains of Malapong with other members- followers of the
New People's Army. Temblor surrendered to Mayor Dick Carmona of
Nasipit during the mass surrender of dissidents in August, 1981. He was
arrested by the Buenavista Police at the Buenavista public market on
November 26, 1981 and detained at the Buenavista municipal jail.
The accused capitalized the fact that the victim's widow, Victorina, did
not know him by name. That circumstance allegedly renders the
Identification of the accused, as the perpetrator of her husband's killing,
insufficient. However, during the trial, the accused was positively
identified by the widow who recognized him because she was less than a
meter away from him inside the store which was well lighted inside by a
40-watt flourescent lamp and by an incandescent lamp outside. Her
testimony was corroborated by another prosecution witness — a tricycle
driver, Claudio Sabanal — who was a long-time acquaintance of the
accused and who knew him as "Ronald." He saw the accused in the store
of Cagampang at about 7:30 o'clock in the evening of December 30,
1980. He heard the gunshots coming from inside the store, and saw the
people scampering away.
Dr. Alfredo Salonga who issued the post-mortem examination report Appellant's alleged lack of motive for killing Cagampang was rejected
certified that the victim sustained three (3) gunshot wounds. by the trial court which opined that the defendant's knowledge that
Rebutting the accused's alibi, the prosecution presented a Certification of Cagampang possessed a firearm was motive enough to kill him as
the Nasipit Lumber Company's Personnel Officer, Jose F. Tinga (Exh. killings perpetrated by members of the New People's Army for the sole
D), and the NALCO Daily Time Record of Silverio Perol (Exh. D), purpose of acquiring more arms and ammunition for their group are
showing that Perol was not at home drinking with the accused and his prevalent not only in Agusan del Norte but elsewhere in the country. It is
father, but was at work on December 30, 1980 from 10:50 o'clock in the known as the NPA's "agaw armas" campaign. Moreover, proof of motive
evening up to 7:00 o'clock in the morning of December 31, 1980. The is not essential when the culprit has been positively Identified (People vs.
accused did not bother to overcome this piece of rebuttal evidence. Tan, Jr., 145 SCRA 615).
In this appeal, the appellant alleges that the court a quo erred: The records further show that the accused and his companion fled after
1. in finding that he was positively identified by the killing Cagampang and taking his firearm. They hid in the mountains of
prosecution witness as the killer of the deceased Julius Agusan del Norte. Their flight was an implied admission of guilt (People
Cagampang; and vs. Dante Astor, 149 SCRA 325; People vs. Realon, 99 SCRA 422).
2. in rejecting his defense of allbi. WHEREFORE, the judgment appealed from is affirmed in all respects,
The appeal deserves no merit. Was the accused positively Identified as except as to the civil indemnity payable to the heirs of the Julius
the killer of Cagampang? The settled rule is that the trial court's Cagampang which is increased to P30,000.00.
assessment of the credibility of witnesses while testifying is generally SO ORDERED.
binding on the appellate court because of its superior advantage in Narvasa, Cruz, Gancayco and Medialdea, JJ., concur.
observing their conduct and demeanor and its findings, when supported
by convincingly credible evidence as in the case at bar, shall not be
disturbed on appeal (People vs. Dava, 149 SCRA, 582).<äre||anº•1àw>
The minor inconsistencies in the testimony of the eyewitness Victorina
Vda. de Cagampang did not diminish her credibility, especially because
she had positively Identified the accused as her husband's assailant, and
her testimony is corroborated by the other witnesses. Her testimony is
credible, probable and entirely in accord with human experience.
Appellant's self-serving and uncorroborated alibi cannot prevail over the
positive Identification made by the prosecution witnesses who had no
base motives to falsely accuse him of the crime. Furthermore, the rule is
that in order for an alibi to be acceptable as a defense, it is not enough
that the appellant was somewhere else when the crime was committed; it
must be demonstrated beyond doubt that it was physically impossible for
him to be at the scene of the crime. Here it was admitted that Perol's
house in barrio Camagong, Nasipit is accessible to barrio Talo-ao in
Buenavista by jeep or tricycle via a well-paved road in a matter of 15 to
20 minutes. The testimony of the witnesses who had positively Identified
him could not be overcome by the defendant's alibi. (People vs.
Mercado, 97 SCRA 232; People vs. Venancio Ramilo, 146 SCRA 258.)
G.R. No. L-68969 January 22, 1988
PEOPLE OF THE PHILIPPINES, petitioner,
vs.
USMAN HASSAN y AYUN, respondent.
SARMIENTO, J.:
This is a pauper's appeal of the decision 1 of the Regional Trial Court of
Zamboanga City, Ninth Judicial Region Branch XIII, dated January 25,
1984, which "finds the accused USMAN HASSAN y AYUN guilty
beyond reasonable doubt as principal of the Crime of MURDER, and
there being neither aggravating nor mitigating circumstance attending the
commission of the crime, and pursuant to Paragraph No. 1 of Article 64
of the Revised Penal Code, hereby imposes upon the said accused the
penalty of RECLUSION PERPETUA and all its accessory penalties; to
indemnify the heirs of the deceased victim Ramon Pichel, Jr. y Uro the
amount of P12,000.00 and to pay the costs." 2
Usman Hassan was accused of murder for stabbing to death Ramon
Pichel, Jr. y Uro, 24, single, and a resident of Zamboanga City. 3 At the
time of his death on July 23,1981, the deceased was employed as
manager of the sand and gravel business of his father. On the other hand,
Hassan was an illiterate, 15-year-old pushcart cargador. 4
The quality of justice and the majesty of the law shine ever brightest
when they are applied with more jealousy to the poor, the marginalized,
and the disadvantaged. Usman Hassan, the herein accused-appellant,
belongs to this class. At the time of the alleged commission of the crime,
he was poor, marginalized, and disadvantaged. He was a flotsam in a sea
of violence, following the odyssey of his widowed mother from one
poverty-stricken area to another in order to escape the ravages of
internicine war and rebellion in Zamboanga del Sur. In the 15 years of
Hassan's existence, he and his family had to evacuate to other places for
fear of their lives, six times. His existence in this world has not even
been officially recorded; his birth has not been registered in the Registry
of Births because the Samal tribe, to which he belongs, does not see the
importance of registering births and deaths.
Usman was convicted on the bases of the testimony of a lone eyewitness
for the prosecution and the sloppiness of the investigation conducted by
the police investigator, Police Corporal Rogelio Carpio of the Homicide
and Arson Section of the Zamboanga City Police Station, who also
testified for the prosecution.
We rule that Usman Hassan's guilt was not proved beyond reasonable
doubt and that Usman Hassan must, therefore, be set free.
The lone eyewitness for the prosecution is Jose Samson, 24 years old
when he testified, married, and a resident of Zamboanga City. On the day
of the killing, he was employed at the sand and gravel business of the
father of the deceased but was jobless at the time of his examination-in-
chief on February 3, 1982.
He testified that he was with Ramon Pichel, Jr. at about 7:00 o'clock in
the evening of July 23, 1981; that he was a backrider in the motorcycle
of Ramon when they went to buy mangoes at Fruit Paradise near the
Barter Trade Zone in Zamboanga City that while he was selecting
mangoes, he saw a person stab Ramon who was seated at his red Honda
motorcycle which was parked about two or three meters from the fruit
stand where he Samson) was selecting mangoes; that he saw the assailant
stab Ramon "only once" and that after the stabbing, the assailant ran
towards the PNB Building. When asked at the cross-examination if he
knew the assailant, Samson said, "I know him by face but I do not know
his name." 5
This sole eyewitness recounted the stabbing thus: "While Ramoncito
Pichel, Jr. was holding the motorcycle with both of his hands, the
assailant come from behind, held his left hand and stabbed him from
behind on his chest while the victim was sitting on the motorcycle." He
claimed that he was able to see the assailant because it was very bright
there that Ramon was facing the light of a petromax lamp, and that all
these happened in front of the fruit stand a — distance of about 6 to 7
meters from the side of the road.
Samson described the assailant as wearing a white, short-sleeved t-shirt
and maong pants, but "he did not see if the aggressor was wearing
shoes," that the assailant stabbed Ramon with a knife but "he did not
exactly see what kind of knife it was, and he did not see how long the
knife was He said he brought the wounded Ramon to the Zamboanga
City General Hospital in a tricycle.
On cross-examination, Samson testified:
xxx xxx xxx
Q When you rushed Ramon Pichel, Jr. to
the hospital you came to know that he was
already dead, is that correct?
A Yes, sir, I learned that he was already dead.
Q In the hospital, were you investigated by the police?
 A They just asked the description of that
person as to his attire and his appearance.
Q And it was while in the hospital that you
told them the description of the one who
stabbed Ramon Pichel, Jr.?
A Yes, Sir.
Q And the body of Ramon Pichel, Jr., was brought to the
Funeraria La Merced?
A Yes, sir,
Q Can you recall what time was that?
A I do not know what time was that.
Q And it was all La Merced Funeraria that the police
brought to you the accused?
A...
Q For Identification?
A Yes, sir.
Q And he was alone when you Identified him?
A Yes he was alone.
Q Aside from working with the Pichel family in their sand
and gravel business, do you have any blood relationship
with them?
A Yes. sir. 6
(Emphasis supplied)
xxx xxx xxx
What comes as a surprise is that Samson's statement 7 which was taken
only on July 25, 1981, two days after the stabbing, and sworn to only on
July 27, 1981, also two days after it was taken, or four days after the
killing, was never presented or mentioned by the prosecution at all. The
information was practically forced out of Police Corporal Rogelio P.
Carpio, a witness for the People, during his cross-examination. 8 The
sworn statement contained the following questions and answers:
xxx xxx xxx
Q-14. What and please narrate it to me
briefly in your own words, the incident you
are referring?
A-14. While I was busy selecting some
mangoes, I saw unidentified person whom
I can recognize by face if seen again
embraced my companion Ramon Pitcher
Jr. while the latter was aboard his
motorcycle parked within the area. That
this person without much ado, and armed
with a knife suddenly stabbed him
(Ramon). That by coincidence to this
incident, our eye met each other and
immediately thereafter, he fled the area
toward the Philippine National Bank
(PNB). That this unidentified person was
sporting a semi-long hair, dressed in White
Polo-Shirt (Short sleeve), maong pants
height to more or less 5'5, Dark
Complexion. That as this unidentified
person fled the area I immediately came to
aid my companion, Ramon Pitcher, Jr., and
rushed him to Zamboanga General
Hospital, on board a Tricycle. That may
companion (Ramon) did not whispered
(sic) any words to me for he was in serious
condition and few minutes later, he
expired.
Q-15. Was tills unidentified person was
with companion when he attack (sic)
Ramon Pitcher Jr.?
A-15. He was alone Sir.
Q-16. Can you really Identified (sic) this
person who attacked and stabbed your
companion, Ramon Pitcher, Jr., that
evening in question?
A-16. Yes, Sir,
Q-17. Do you still remember that
confrontation we made at the Office of La
Merced Funeral Homes, wherein you were
confronted with one Usman Hassan, whom
this Officer brought along?
A-17. Yes, Sir.
Q-18. Was he the very person, who
attacked and stabbed your companion,
Ramon Pitcher, Jr.?
 A-18. Yes, Sir, he was the very person
who attacked and stabbed my companion,
Ramon Pitcher, Jr., that evening in
question.
Q-19. Why?
A-19. Because his face and other physical
appearance were fully noted by me and
this I cannot forget for the rest of my life.
Q-20. Before this incident, was there any
altercation that had ensued while in the
process of buying some mangoes in that
area?
A-20. None Sir.
Q-21. Were you able to note what kind of
knife used by said Usman Hassan in
stabbing your companion, Ramon Pitcher
Jr.?
A-21: None Sir,
Q-22. Well, I have nothing more to ask of
you, do you have anything more to say,
add or alter in this statement?
A-22. No more Sir.
Q-23. Are you willing to give a
supplemental statement if needed in the
future?
A-23. Yes, Sir. 9
(Emphasis supplied)
xxx xxx xxx
The version of the sole eyewitness appearing in his statement 10 is
substantially the same as that embodied in the "Case Report," Exhibit it
"C", by Police Corporal Carpio, also admitted a s Exhibit "2." This
exhibit for the prosecution confirms the sworn statement of witness
Samson that an unidentified person, whom he recognized only by face,
appeared and without any provocation, the latter embraced the victim
and stabbed the same allegedly with a knife." The rest of the Case
Report: is also significant in that it confirms the confrontation between
the accused and Jose Samson in the funeral parlor arranged by the police
Investigator and prosecution witness, Corporal Carpio.
xxx xxx xxx
From this end, a follow-up was made within the premises
of the Old Barter Trade, wherein the person of USMAN
HASSAN Y AYUN, of Paso Bolong, this City, was
arrested in connection with the above stated incident. That
this Officer and companions arrested this person Usman
due to his physical appearance, which was fully described
by victim's companion. Jose Samson. During his arrest, a
knife, measuring to more or less seven (7) inches in blade
was confiscated in his possession. The person of Usman
Hassan was brought along at the La Merced Funeral
Homes for a confrontation with victims companion, Jose
Samson and in this confrontation, Jose Samson positively
Identified said Usman Hassan as the very person who
stabbed the victim.
Usman Hassan, on the other hand, denied the charges
levelled against hub and admitted ownership of said knife;
claiming among other things that he used said knife for
slicing mangoes. 11
xxx xxx xxx
We hold that the evidence for the prosecution in its entirety does not
satisfy the quantum of proof — beyond reasonable doubt — required by
the Constitution, the law, and applicable jurisprudence to convict an
accused person. The said evidence denies us the moral certainty which
would allow us to pronounce, without uneasiness of conscience. Usman
Hassan y Ayun guilty of the killing of the deceased Ramon Pichel, Jr. y
Uro, and condemn him to life imprisonment and in effect turning him
into a flotsam again in a sea of convicted felons in which he would be a
very young stranger.
In evaluating the worth of the testimony of the lone eyewitness for the
prosecution against the denial and alibi of the accused, value judgment
must not be separated from the constitutionally guaranteed presumption
of innocence.
When the evidence for the prosecution and the evidence
for the accused are weighed, the scales must be tipped in
favor of the latter. This is because of the constitutional
presumtion of innocence the accused enjoys as a counter-
foil to the awesome authority of the State that is
prosecuting him.
 The element of doubt, if reasonable in this case, must
operate against the inference of guilt the prosecution
would draw from its evidence. That evidence, as it
happens, consists only of the uncorroborated statement of
the two policemen which, as previously observed, is
flawed and therefore suspect. 12
The testimony of Jose Samson, the lone eyewitness, is weak and
unconvincing. And so with the evidence sought to be introduced by
Police Corporal Carpio. We discover, for example, that the expert
testimony of the medico-legal officer of the National Bureau of
Investigation, Dr. Valentin Bernalez, presented by the prosecution,
contradicted, on material points, the testimony of the one eyewitness,
Jose Samson. While Samson averred on the witness stand that he saw the
assailant stab the deceased "from behind on his chest" 13 only once, the
NBI medico-legal officer Identified two stab wounds, one at the front
portion of the chest at the level and third rib, (sic) and another stab
wound located at the left arm posterior aspect." 14 The same medical
expert also concluded from the nature and location of the chest wound,
which was the cause of death, that the same was inflicted on the victim
while the alleged accused was in front of him." 15
The investigation of this case by the Homicide/Arson Section of the
Zamboanga Southern Police Sector, 16 at Zamboanga City, particularly
by Police Corporal Rogelio P. Carpio, leaves much to be desired. For
one, we are not satisfied with the procedure adopted by the police
investigators in the Identification of the accused as the assailant. We
have no doubt that Usman Hassan was "presented" alone 17 to Jose
Samson by the police investigator and prosecution witness, Police
Corporal Carpio, and his police companions, at the office of the La
Merced Funeral Homes in Zamboanga City. As correctly termed by the
very evidence 18 of the prosecution, the procedure adopted by the police
investigators was a confrontation" between Jose Samson, Jr. and Usman.
Earlier, on direct examination, Corporal Carpio testified that Usman was
alone when he was brought to Samson for confrontation in the funeral
parlor. However, on cross-examination, Carpio made a turnabout by
saying that the accused was Identified by Samson in a "police line-up;"
this tergiversation we dare say, was an afterthought, more the result of an
over or careless cross-examination, augmented by the leading
questions 19 of the trial judge rather than a fastidiousness if not sincerity,
on the part of the police investigator, to honestly correct erroneous
statements in his examination-in-chief. The fact remains that both
Samson and the accused testified clearly and unequivocably that Usman
was alone when presented to Samson by Carpio. There was no such
police line-up as the police investigator, to honestly correct erreoneous
statements in his examination-in-chief. The fact remains that both
Samson and the accused testified clearly and unequivocably that Usman
was alone when presented to Samson by Carpio. There was no such
police investigator claimed on second thought.
The manner by which Jose Samson, Jr. was made to confront and
Identify the accused alone at the funeral parlor, without being placed in
the police line-up, was "pointedly suggsestive, generated confidence
where there was none, activated visual imagination, and, all told,
subserted his reliability as eyewitness. This unusual, coarse, and highly
singular method of Identification, which revolts against the accepted
principles of scientific crime detection, alienates the esteem of every just
man, and commands neither our respect nor acceptance." 20
Moreover, the confrontation arranged by the police investigator between
the self-proclaimed eyewitness and the accused did violence to the right
of the latter to counsel in all stages of the investigation into the
commission of a crime especially at its most crucial stage — the
Identification of the accused.
As it turned out, the method of Identification became just a
confrontation. At that critical and decisive moment, the scales of justice
tipped unevenly against the young, poor, and disadvantaged accused.
The police procedure adopted in this case in which only the accused was
presented to witness Samson, in the funeral parlor, and in the presence of
the grieving relatives of the victim, is as tainted as an uncounselled
confession and thus falls within the same ambit of the constitutionally
entrenched protection. For this infringement alone, the accused-appellant
should be acquitted.
Moreover, aside from this slipshod Identification procedure, the rest of
the investigation of the crime and the preparation of the evidence for
prosecution were done haphazardly, perfunctorily, and superficially.
Samson was not investigated thoroughly and immediately after the
incident. As previously mentioned, his statement was taken by the
investigator only two days after the murder of Ramon Pichel, Jr. and
sworn only two days after it had been taken. Similarly, there is nothing
in the record to show that the fruit vendor—from whom Samson and the
deceased were buying mangoes that fateful evening and who certainly
must have witnessed the fatal stabbing—was investigated, or why he was
not investigated. Nor is any explanation given as to why the
companion 21 of the accused at the time Corporal Carpio arrested him
(accused) 'sitting on a pushcart " 22 at about 8:00 P.M. (around 7:00
P.M., according to Usman) of that same evening near the scene of the
crime, was not also investigated when he could have been a material
witness of the killing or of the innocence of the accused. In addition, the
knife and its scabbard, 23Confiscated by Carpio from Usman (tucked on
the right side of his waist") at the time of his arrest, were not even
subjected to any testing at all to determine the presence of human blood
which could be typed and compared with the blood type of the deceased.
A crime laboratory test — had Carpio or the prosecuting fiscal, or even
the trial judge, insisted on it — would have revealed whether or not the
knife in question (confiscated from the accused by Carpio one hour after
the alleged commission of the crime) had indeed been the weapon used
to kill Ramon. The police investigator instead nonchalantly dismissed
this sin of omission by saying that the knife could have been cleaned or
the bloodstain could have been taken away. 24 This presumption of the
deadly weapon's having been "cleaned" of bloodstains is tantamount to
pronouncing the accused of being guilty.
Our doubt about the guilt of the accused is further deepened by a
resolution, 25 in a separate case, 26 of Assistant City Fiscal of Zamboanga
City and deputized Tanod bayan Prosecutor Pablo Murillo, which clearly
reveals that on July 24, 1981, a day after the killing of Ramon Pichel, Jr.,
a similar stabbing took place at Plaza Pershing near the place of the
earlier incident, with the suspect in that frustrated homicide case being a
certain Benhar Isa, 'a notorious and a deadly police character" in
Zamboanga City, with a long record of arrests. In that resolution, Fiscal
Murillo said the same Benhar Isa was tagged as 'also a suspect in the
stabbing of Ramon Pichel, Jr. to death and the stabbing of Pastor Henry
Villagracia at the Fruit Paradise, this City." The said resolution further
states that "with regards to this incident or witnesses ever testified for
fear of possible reprisals." 27
The trial of Usman Hassan began on October 27, 1981. Benhar Isa
himself was killed by a policeman on August 28, 1981, while he (Isa)
"was apparently under the influence of liquor armed with a knife (was)
molesting and extorting money from innocent civilians' and "making
trouble." 28 The records of the case at bar do not show any attempt on the
part of Corporal Carpio, or any other police officer, to investigate or
question Benhar Isa in connection with the killing of Pichel, Jr. Was it
fear of the notorious police character that made the police officers
disregard the possible connection between the slaying of Ramon and that
of the person (Harun Acan y Arang of the Ministry of National
Defense) 29 who was allegedly stabbed by Benhar Isa a day after the
killing of Ramon Jr.? And yet questioning Isa might have provided that
vital link to the resolution of Usman's guilt or innocence. But why should
the police officers investigate Isa when Usman Hassan was already in
custody and could be an available fall guy? Usman Hassan, instead,
became a victim of a grave injustice. Indeed, Usman Hassan is too poor
to wage a legal fight to prove his innocence. And he is so marginalized
as to claim and deserve an honest-to-goodness, thorough, and fair police
investigation with all angles and leads pursued to their logical, if not
scientific, conclusions. Sadly circumstanced as he is, the authority of the
State was too awesome for him to counteract.
The appealed decision made much ado of the admission by Usman "that
he was arrested at the former barter trade, which is a place just across the
place of the stabbing at the Fruit Paradise." 30 The trial judge found it
"therefore strange that on the very evening of the stabbing incident he
was still at the barter trade area by 8:00 o'clock in the evening when he
usually comes to the city proper at about 6:00 o'clock in the morning and
goes home at past 5:00 o'clock and sometimes 6:00 o'clock in the
afternoon." 31 Usman's explanation — that, at around 7:00 o'clock P.M.,
he was waiting for transportation to take him home — was found by the
trial court as 'flimsy and weak since he did not explain why he had to go
home late that evening." 32 But the whole trouble is nobody asked him.
The trial judge did not propound any single question to the accused, and
only three to his mother on innocuous matters, by way of clarification, if
only to put on record what the mother and son could articulate with
clarity. Taking into account their poverty and illiteracy, the mother and
son needed as much, if not more, help, than the trial judge extended to
the prosecution witnesses during their examination by asking them
clarificatory and mostly leading questions. In that sense and to that
extent, the accused was disadvantaged.
A fact that looms large, though mutely to testify on the innocence of the
accused but the importance of which was brushed away by the trial judge
was the presence of the accused near the scene (about 100 to 150 meters
away) soon after the stabbing (he testified at around 7:00 P.M. although
Police Corporal Carpio stated it was 8:00 P.M.) where he was found
sitting on his pushcart with a companion. If he were the assailant, he
would have fled. But the trial court instead indulged in conjecture,
foisting the probability that the accused 'was lulled by a false sense of
security in returning to the place (of the stabbing), when no police
officers immediately responded and appeared at the scene of the crime,"
adding 'there are numerous cases in the past where criminals return to the
scene of their crimes, for reasons only psychologist can explain." 33 It
must have escaped the trial court's attention that Usman has no criminal
record, and, therefore, he could not be generally classed with criminals.
In the second place, the trial court's rationalization ignores the biblical
truism recognized by human nature and endorsed with approval by this
Court that "(T)he wicked flee when no man pursueth but the righteous
are as bold as a lion." 34
And now as a penultimate observation, we could not help but note the
total absence of motive ascribed to Usman for stabbing Ramon, a
complete stranger to him. While, as a general rule, motive is not essential
in order to arrive at a conviction, because, after all, motive is a state of
mind, 35 procedurally, however, for purposes of complying with the
requirement that a judgment of guilty must stem from proof beyond
reasonable doubt, the lack of motive on the part of the accused plays a
pivotal role towards his acquittal. This is especially true where there is
doubt as to the Identity of the culprit 36 as when 'the Identification is
extremely tenuous," 37 as in this case.
We can not end this travail without adverting to the cavalier manner in
which the trial court disregarded the claimed young age of Usman
Hassan.
The defense claims that the accused Usman Hassan is a
minor, basing such claim on the testimony of Lahunay
Hassan, the mother of said accused, who declared that her
son Usman Hassan, who is one of her four (4) children,
was born in the year 1967. She testified that she was just
told by a person coming from their place about the year of
the birth of her son Usman. However on cross-
examination, Lahunay Hassan cannot even remember the
date or year of birth of her other children. The failure of
Lahunay Hassan to remember the date or year of birth of
her children is of course understandable, considering that
she is unschooled and she belongs to a tribe that does not
register births, deaths or marriages, however, it is strange
that she only took pains to find out the year of birth of her
son Usman. For this reason, the Court granted a motion of
the defense on September 13, 1982, to have the herein
accused examined by a competent dentist to determine his
age. However, the findings of the dentist of Zamboanga
General Hospital which is marked as Exhibit "5" shows
the following: "age cannot be determined accurately
under present mouth conditions. Approximately, he can
be from 14 to 21 years of age." This simply means that
the herein accused could either be 14 years of age or 21
years of age, or any age in between those aforestated
years. From the observation of this court, the accused
Usman Hassan was about 18 years of age at the time he
committed this crime and this observation is based on his
personal appearance, his size and facial features and other
personal characteristics, hence he can not be classified as
a youthful offender under Article. 189 of Presendential
Decree No. 603, as ammended by Presedential Decree
No. 1179. In the case of U.S. vs. Mallari, 29 Phil. 13 and
People vs. Reyes and Panganiban, CA 48 O.G. 1022,
cited in the Edition, Page 680, it was ruled by the
Supreme Court that "In cases where the age of the culprit
is at issue as a basis for claiming an exempting mitigating
circumstance, it is incumbent upon the accused to
establish that circumstance ad any other elements of
defense. 38
Considering that the age of the accused could exempt him from
punishment or cause the suspension of his sentence under Articles 12
and 80, respectively of the Revised Penal Code, if found guilty, more
meticulousness and care should have been demanded of medical or
scientific sources, and less reliance on the observation of the judge as
had happened in this case. The preliminary findings of the dentist that
the accused could be anywhere between fourteen to twenty one years,
despite the difficulty of arriving at an accurate determination due to
Hassan's mouth condition, would have placed the trial judge on notice
that there is the probability that the accused might be exempted from
criminal liability due to his young age. All the foregoing indicates that
the accused had not been granted the concern and compassion with
which the poor, marginalized, and disadvantaged so critically deserve. It
is when judicial and police processes and procedures are thoughtlessly 142 SCRA 295; Liwanag Aguirre v. People, G.R. No.
and haphazardly observed that cries of the law and justice being denied 56013, October 30, 1987.
the poor are heard. In any event, all this would not be of any moment 13 T.S.N., 5-6, February 3, 1982.
now, considering the acquittal of the accused herein ordered. 14 T.S.N., 7, October 27, 1981, Exhibit "B."
WHEREFORE, the decision is hereby REVERSED, and the accused 15 Id., 10.
Usman Hassan y Ayun is ACQUITTED of the crime charged. His 16 Exhibits "C" and "D".
release from confinement is hereby Ordered, unless he is held for another 17 T.s.n. 11 February 10, 1982. T.s.n., 4 April 28, 1982,
legal cause. With costs de oficio. Exh. "1", Original Records, Id.
SO ORDERED. 18 Exh. "C", T.s.n., April 28,1982, Id.
Yap (Chairman), Paras and Padilla, JJ., concur. 19 T.S.N. 10-11, Id.
20 People v. Cruz. No. L-24424, March 30, 1970, 32
SCRA 181, 186; People vs. Olvis, et al., No. L-71092,
Separate Opinions September 30, 1987; Chavez Court of Appeals. No. L-
29169, 24 SCRA 663, 679.
MELENCIO-HERRERA, J., concurring: 21 T.S.N., 4, April 28,1982.
That the testimony of the lone eyewitness is weak and unconvincing. 22 Id.
23 Exhibits "E" and "E-1", respectively.
24 T.S.N., 9, April 28, 1982.
Separate Opinions 25 Exhibit "4".
MELENCIO-HERRERA, J., concurring: 26 People of the Philippines, Complainant, versus Pat.
That the testimony of the lone eyewitness is weak and unconvincing. Hamid Akbar, Respondent, Slip No. 734-81 for
Footnotes HOMICIDE."
1 Rendered by the Honorable Carlito A. Eisma, Regional 27 Id.
Trial Judge. 28 Id.
2 Decision, 12; Rollo, 35. 29 Id.
3 Exhibit "A", Death Certificate. 30 Decision, 10, Original Records, 113.
4 T.S.N., 2, July 28,1982. 31 Id.
5 T.S.N., 5 February 3, 1982. 32 Id.
6 T.S.N.,., 11 February 10, 1982. 33 Decision, 8 Original Records 111.
7 Exhibit "I", Original Records, 4-5. 34 People of the Philippines vs. Rolly Anquillano alias
8 T.S.N., S. April 28, 1982. Dagol, G.R. No. 72318, 4.
9 Exhibit "1", Id. 35 People vs. Jacinto, L-51908, November 29, 1984, 133
10 Id. SCRA 498.
11 Exhibit "C", (also Exhibit "2'). 36 People vs. Verzo, L-22517, December 26, 1967, 21
12 (Sec. 19, Art. IV, 1973 Constitution, Identical with SCRA 1403; People vs. Pajenado, L-26458, January 30,
Sec. 14(2), Art. III, 1987 Constitution; People vs. 1976, 69 SCRA 172; People vs. Dueno L-31102, May 5,
Pecardal, No. L-71381, November 24,1986,145 SCRA 1979, 90 SCRA 23; People vs. Manalo, L-45088,
652-653; People v. Opida, No. L-46272, June 13, 1986, February 28, 1985, 135 SCRA 84.
37 People vs. Pervelo, L-50631, June 29, 1981, 105
SCRA 236, 238.
38 Decision, 9, Original Records, 112.
G.R. No. L-5272 March 19, 1910
THE UNITED STATES, plaintiff-appellee,
vs.
AH CHONG, defendant-appellant.
Gibb & Gale, for appellant.
Attorney-General Villamor, for appellee.
CARSON, J.:
The evidence as to many of the essential and vital facts in this case is
limited to the testimony of the accused himself, because from the very
nature of these facts and from the circumstances surrounding the incident
upon which these proceedings rest, no other evidence as to these facts
was available either to the prosecution or to the defense. We think,
however, that, giving the accused the benefit of the doubt as to the
weight of the evidence touching those details of the incident as to which
there can be said to be any doubt, the following statement of the material
facts disclose by the record may be taken to be substantially correct:
The defendant, Ah Chong, was employed as a cook at "Officers'
quarters, No. 27," Fort Mc Kinley, Rizal Province, and at the same place
Pascual Gualberto, deceased, was employed as a house boy
or muchacho. "Officers' quarters No. 27" as a detached house situates
some 40 meters from the nearest building, and in August, 19087, was
occupied solely as an officers' mess or club. No one slept in the house
except the two servants, who jointly occupied a small room toward the
rear of the building, the door of which opened upon a narrow porch
running along the side of the building, by which communication was had
with the other part of the house. This porch was covered by a heavy
growth of vines for its entire length and height. The door of the room
was not furnished with a permanent bolt or lock, and occupants, as a
measure of security, had attached a small hook or catch on the inside of
the door, and were in the habit of reinforcing this somewhat insecure
means of fastening the door by placing against it a chair. In the room
there was but one small window, which, like the door, opened on the
porch. Aside from the door and window, there were no other openings of
any kind in the room.
On the night of August 14, 1908, at about 10 o'clock, the defendant, who
had received for the night, was suddenly awakened by some trying to
force open the door of the room. He sat up in bed and called out twice,
"Who is there?" He heard no answer and was convinced by the noise at
the door that it was being pushed open by someone bent upon forcing his
way into the room. Due to the heavy growth of vines along the front of
the porch, the room was very dark, and the defendant, fearing that the
intruder was a robber or a thief, leaped to his feet and called out. "If you
enter the room, I will kill you." At that moment he was struck just above
the knee by the edge of the chair which had been placed against the door.
In the darkness and confusion the defendant thought that the blow had
been inflicted by the person who had forced the door open, whom he
supposed to be a burglar, though in the light of after events, it is probable
that the chair was merely thrown back into the room by the sudden
opening of the door against which it rested. Seizing a common kitchen
knife which he kept under his pillow, the defendant struck out wildly at
the intruder who, it afterwards turned out, was his roommate, Pascual.
Pascual ran out upon the porch and fell down on the steps in a
desperately wounded condition, followed by the defendant, who
immediately recognized him in the moonlight. Seeing that Pascual was
wounded, he called to his employers who slept in the next house, No. 28,
and ran back to his room to secure bandages to bind up Pascual's
wounds.
There had been several robberies in Fort McKinley not long prior to the
date of the incident just described, one of which took place in a house in
which the defendant was employed as cook; and as defendant alleges, it
was because of these repeated robberies he kept a knife under his pillow
for his personal protection.
The deceased and the accused, who roomed together and who appear to
have on friendly and amicable terms prior to the fatal incident, had an
understanding that when either returned at night, he should knock at the
door and acquiant his companion with his identity. Pascual had left the
house early in the evening and gone for a walk with his friends,
Celestino Quiambao and Mariano Ibañez, servants employed at officers'
quarters No. 28, the nearest house to the mess hall. The three returned
from their walk at about 10 o'clock, and Celestino and Mariano stopped
at their room at No. 28, Pascual going on to his room at No. 27. A few
moments after the party separated, Celestino and Mariano heard cries for
assistance and upon returning to No. 27 found Pascual sitting on the back
steps fatally wounded in the stomach, whereupon one of them ran back
to No. 28 and called Liuetenants Jacobs and Healy, who immediately
went to the aid of the wounded man.
The defendant then and there admitted that he had stabbed his roommate,
but said that he did it under the impression that Pascual was "a ladron"
because he forced open the door of their sleeping room, despite
defendant's warnings.
No reasonable explanation of the remarkable conduct on the part of
Pascuals suggests itself, unless it be that the boy in a spirit of mischief
was playing a trick on his Chinese roommate, and sought to frightened
him by forcing his way into the room, refusing to give his name or say
who he was, in order to make Ah Chong believe that he was being
attacked by a robber.
Defendant was placed under arrest forthwith, and Pascual was conveyed
to the military hospital, where he died from the effects of the wound on
the following day.
The defendant was charged with the crime of assassination, tried, and
found guilty by the trial court of simple homicide, with extenuating
circumstances, and sentenced to six years and one day presidio mayor,
the minimum penalty prescribed by law.
At the trial in the court below the defendant admitted that he killed his
roommate, Pascual Gualberto, but insisted that he struck the fatal blow
without any intent to do a wrongful act, in the exercise of his lawful right
of self-defense.
Article 8 of the Penal Code provides that —
The following are not delinquent and are therefore exempt from
criminal liability:
xxx xxx xxx
4 He who acts in defense of his person or rights, provided there
are the following attendant circumstances:
(1) Illegal aggression.
(2) Reasonable necessity of the means employed to prevent or
repel it.
(3) Lack of sufficient provocation on the part of the person
defending himself.
Under these provisions we think that there can be no doubt that
defendant would be entitle to complete exception from criminal liability
for the death of the victim of his fatal blow, if the intruder who forced
open the door of his room had been in fact a dangerous thief or "ladron,"
as the defendant believed him to be. No one, under such circumstances,
would doubt the right of the defendant to resist and repel such an
intrusion, and the thief having forced open the door notwithstanding
defendant's thrice-repeated warning to desist, and his threat that he
would kill the intruder if he persisted in his attempt, it will not be
questioned that in the darkness of the night, in a small room, with no
means of escape, with the thief advancing upon him despite his warnings
defendant would have been wholly justified in using any available
weapon to defend himself from such an assault, and in striking promptly,
without waiting for the thief to discover his whereabouts and deliver the
first blow.
But the evidence clearly discloses that the intruder was not a thief or a
"ladron." That neither the defendant nor his property nor any of the
property under his charge was in real danger at the time when he struck
the fatal blow. That there was no such "unlawful aggression" on the part
of a thief or "ladron" as defendant believed he was repelling and
resisting, and that there was no real "necessity" for the use of the knife to
defend his person or his property or the property under his charge.
The question then squarely presents it self, whether in this jurisdiction
one can be held criminally responsible who, by reason of a mistake as to
the facts, does an act for which he would be exempt from criminal
liability if the facts were as he supposed them to be, but which would
constitute the crime of homicide or assassination if the actor had known
the true state of the facts at the time when he committed the act. To this
question we think there can be but one answer, and we hold that under
such circumstances there is no criminal liability, provided always that the
alleged ignorance or mistake or fact was not due to negligence or bad
faith.
In broader terms, ignorance or mistake of fact, if such ignorance or
mistake of fact is sufficient to negative a particular intent which under
the law is a necessary ingredient of the offense charged (e.g., in
larcerny, animus furendi; in murder, malice; in crimes intent) "cancels
the presumption of intent," and works an acquittal; except in those cases
where the circumstances demand a conviction under the penal provisions
touching criminal negligence; and in cases where, under the provisions
of article 1 of the Penal Code one voluntarily committing a crime or
misdeamor incurs criminal liability for any wrongful act committed by
him, even though it be different from that which he intended to commit.
(Wharton's Criminal Law, sec. 87 and cases cited; McClain's Crim. Law,
sec. 133 and cases cited; Pettit vs. S., 28 Tex. Ap., 240;
Commonwealth vs. Power, 7 Met., 596; Yates vs. People, 32 N.Y., 509;
Isham vs. State, 38 Ala., 213; Commonwealth vs. Rogers, 7 Met., 500.)
The general proposition thus stated hardly admits of discussion, and the
only question worthy of consideration is whether malice or criminal
intent is an essential element or ingredient of the crimes of homicide and
assassination as defined and penalized in the Penal Code. It has been said
that since the definitions there given of these as well as most other
crimes and offense therein defined, do not specifically and expressly
declare that the acts constituting the crime or offense must be committed
with malice or with criminal intent in order that the actor may be held
criminally liable, the commission of the acts set out in the various
definitions subjects the actor to the penalties described therein, unless it
appears that he is exempted from liability under one or other of the
express provisions of article 8 of the code, which treats of exemption.
But while it is true that contrary to the general rule of legislative
enactment in the United States, the definitions of crimes and offenses as
set out in the Penal Code rarely contain provisions expressly declaring
that malice or criminal intent is an essential ingredient of the crime,
nevertheless, the general provisions of article 1 of the code clearly
indicate that malice, or criminal intent in some form, is an essential
requisite of all crimes and offense therein defined, in the absence of
express provisions modifying the general rule, such as are those touching
liability resulting from acts negligently or imprudently committed, and
acts done by one voluntarily committing a crime or misdemeanor, where
the act committed is different from that which he intended to commit.
And it is to be observed that even these exceptions are more apparent
than real, for "There is little distinction, except in degree, between a will
to do a wrongful thing and indifference whether it is done or not.
Therefore carelessness is criminal, and within limits supplies the place of
the affirmative criminal intent" (Bishop's New Criminal Law, vol. 1, s.
313); and, again, "There is so little difference between a disposition to do
a great harm and a disposition to do harm that one of them may very well
be looked upon as the measure of the other. Since, therefore, the guilt of
a crime consists in the disposition to do harm, which the criminal shows
by committing it, and since this disposition is greater or less in
proportion to the harm which is done by the crime, the consequence is
that the guilt of the crime follows the same proportion; it is greater or
less according as the crime in its own nature does greater or less harm"
(Ruth. Ints. C. 18, p. 11); or, as it has been otherwise stated, the thing
done, having proceeded from a corrupt mid, is to be viewed the same
whether the corruption was of one particular form or another.
Article 1 of the Penal Code is as follows:
Crimes or misdemeanors are voluntary acts and ommissions
punished by law.
Acts and omissions punished by law are always presumed to be
voluntarily unless the contrary shall appear.
An person voluntarily committing a crime or misdemeanor shall
incur criminal liability, even though the wrongful act committed
be different from that which he had intended to commit.
The celebrated Spanish jurist Pacheco, discussing the meaning of the
word "voluntary" as used in this article, say that a voluntary act is a free,
intelligent, and intentional act, and roundly asserts that without intention
(intention to do wrong or criminal intention) there can be no crime; and
that the word "voluntary" implies and includes the words "con malicia,"
which were expressly set out in the definition of the word "crime" in the
code of 1822, but omitted from the code of 1870, because, as Pacheco
insists, their use in the former code was redundant, being implied and
included in the word "voluntary." (Pacheco, Codigo Penal, vol. 1, p. 74.)
Viada, while insisting that the absence of intention to commit the crime
can only be said to exempt from criminal responsibility when the act
which was actually intended to be done was in itself a lawful one, and in
the absence of negligence or imprudence, nevertheless admits and
recognizes in his discussion of the provisions of this article of the code
that in general without intention there can be no crime. (Viada, vol. 1, p.
16.) And, as we have shown above, the exceptions insisted upon by
Viada are more apparent than real.
Silvela, in discussing the doctrine herein laid down, says:
In fact, it is sufficient to remember the first article, which
declared that where there is no intention there is no crime . . . in
order to affirm, without fear of mistake, that under our code there
can be no crime if there is no act, an act which must fall within
the sphere of ethics if there is no moral injury. (Vol. 2, the
Criminal Law, folio 169.)
And to the same effect are various decisions of the supreme court of
Spain, as, for example in its sentence of May 31, 1882, in which it made
use of the following language:
It is necessary that this act, in order to constitute a crime, involve
all the malice which is supposed from the operation of the will
and an intent to cause the injury which may be the object of the
crime.
And again in its sentence of March 16, 1892, wherein it held that
"considering that, whatever may be the civil effects of the inscription of
his three sons, made by the appellant in the civil registry and in the
parochial church, there can be no crime because of the lack of the
necessary element or criminal intention, which characterizes every action
or ommission punished by law; nor is he guilty of criminal negligence."
And to the same effect in its sentence of December 30, 1896, it made use
of the following language:
. . . Considering that the moral element of the crime, that is, intent
or malice or their absence in the commission of an act defined
and punished by law as criminal, is not a necessary question of
fact submitted to the exclusive judgment and decision of the trial
court.
That the author of the Penal Code deemed criminal intent or malice to be
an essential element of the various crimes and misdemeanors therein
defined becomes clear also from an examination of the provisions of
article 568, which are as follows:
He who shall execute through reckless negligence an act that, if
done with malice, would constitute a grave crime, shall be
punished with the penalty of arresto mayor in its maximum
degree, to prision correccional in its minimum degrees if it shall
constitute a less grave crime.
He who in violation of the regulations shall commit a crime
through simple imprudence or negligence shall incur the penalty
of arresto mayor in its medium and maximum degrees.
In the application of these penalties the courts shall proceed
according to their discretion, without being subject to the rules
prescribed in article 81.
The provisions of this article shall not be applicable if the penalty
prescribed for the crime is equal to or less than those contained in
the first paragraph thereof, in which case the courts shall apply
the next one thereto in the degree which they may consider
proper.
The word "malice" in this article is manifestly substantially equivalent to
the words "criminal intent," and the direct inference from its provisions
is that the commission of the acts contemplated therein, in the absence of
malice (criminal intent), negligence, and imprudence, does not impose
any criminal liability on the actor.
The word "voluntary" as used in article 1 of the Penal Code would seem
to approximate in meaning the word "willful" as used in English and
American statute to designate a form of criminal intent. It has been said
that while the word "willful" sometimes means little more than
intentionally or designedly, yet it is more frequently understood to extent
a little further and approximate the idea of the milder kind of legal
malice; that is, it signifies an evil intent without justifiable excuse. In one
case it was said to mean, as employed in a statute in contemplation,
"wantonly" or "causelessly;" in another, "without reasonable grounds to
believe the thing lawful." And Shaw, C. J., once said that ordinarily in a
statute it means "not merely `voluntarily' but with a bad purpose; in other
words, corruptly." In English and the American statutes defining crimes
"malice," "malicious," "maliciously," and "malice aforethought" are
words indicating intent, more purely technical than "willful" or
willfully," but "the difference between them is not great;" the word
"malice" not often being understood to require general malevolence
toward a particular individual, and signifying rather the intent from our
legal justification. (Bishop's New Criminal Law, vol. 1, secs. 428 and
429, and cases cited.)
But even in the absence of express words in a statute, setting out a
condition in the definition of a crime that it be committed "voluntarily,"
willfully," "maliciously" "with malice aforethought," or in one of the
various modes generally construed to imply a criminal intent, we think
that reasoning from general principles it will always be found that with
the rare exceptions hereinafter mentioned, to constitute a crime evil
intent must combine with an act. Mr. Bishop, who supports his position
with numerous citations from the decided cases, thus forcely present this
doctrine:
In no one thing does criminal jurisprudence differ more from
civil than in the rule as to the intent. In controversies between
private parties the quo animo with which a thing was done is
sometimes important, not always; but crime proceeds only from a
criminal mind. So that —
There can be no crime, large or small, without an evil mind. In
other words, punishment is the sentence of wickedness, without
which it can not be. And neither in philosophical speculation nor
in religious or mortal sentiment would any people in any age
allow that a man should be deemed guilty unless his mind was so.
It is therefore a principle of our legal system, as probably it is of
 every other, that the essence of an offense is the wrongful intent,
without which it can not exists. We find this doctrine confirmed
by —
Legal maxims. — The ancient wisdom of the law, equally with
the modern, is distinct on this subject. It consequently has
supplied to us such maxims as Actus non facit reum nisi mens sit
rea, "the act itself does not make man guilty unless his intention
were so;" Actus me incito factus non est meus actus, "an act done
by me against my will is not my act;" and others of the like sort.
In this, as just said, criminal jurisprudence differs from civil. So
also —
Moral science and moral sentiment teach the same thing. "By
reference to the intention, we inculpate or exculpate others or
ourselves without any respect to the happiness or misery actually
produced. Let the result of an action be what it may, we hold a
man guilty simply on the ground of intention; or, on the dame
ground, we hold him innocent." The calm judgment of mankind
keeps this doctrine among its jewels. In times of excitement,
when vengeance takes the place of justice, every guard around
the innocent is cast down. But with the return of reason comes
the public voice that where the mind is pure, he who differs in act
from his neighbors does not offend. And —
In the spontaneous judgment which springs from the nature given
by God to man, no one deems another to deserve punishment for
what he did from an upright mind, destitute of every form of evil.
And whenever a person is made to suffer a punishment which the
community deems not his due, so far from its placing an evil
mark upon him, it elevates him to the seat of the martyr. Even
infancy itself spontaneously pleads the want of bad intent in
justification of what has the appearance of wrong, with the
utmost confidence that the plea, if its truth is credited, will be
accepted as good. Now these facts are only the voice of nature
uttering one of her immutable truths. It is, then, the doctrine of
the law, superior to all other doctrines, because first in nature
from which the law itself proceeds, that no man is to be punished
as a criminal unless his intent is wrong. (Bishop's New Criminal
Law, vol. 1, secs. 286 to 290.)
Compelled by necessity, "the great master of all things," an apparent
departure from this doctrine of abstract justice result from the adoption
of the arbitrary rule that Ignorantia juris non excusat ("Ignorance of the
law excuses no man"), without which justice could not be administered
in our tribunals; and compelled also by the same doctrine of necessity,
the courts have recognized the power of the legislature to forbid, in a
limited class of cases, the doing of certain acts, and to make their
commission criminal without regard to the intent of the doer. Without
discussing these exceptional cases at length, it is sufficient here to say
that the courts have always held that unless the intention of the lawmaker
to make the commission of certain acts criminal without regard to the
intent of the doer is clear and beyond question the statute will not be so
construed (cases cited in Cyc., vol. 12, p. 158, notes 76 and 77); and the
rule that ignorance of the law excuses no man has been said not to be a
real departure from the law's fundamental principle that crime exists only
where the mind is at fault, because "the evil purpose need not be to break
the law, and if suffices if it is simply to do the thing which the law in fact
forbids." (Bishop's New Criminal Law, sec. 300, and cases cited.)
But, however this may be, there is no technical rule, and no pressing
necessity therefore, requiring mistake in fact to be dealt with otherwise
that in strict accord with the principles of abstract justice. On the
contrary, the maxim here is Ignorantia facti excusat ("Ignorance or
mistake in point of fact is, in all cases of supposed offense, a sufficient
excuse"). (Brown's Leg. Max., 2d ed., 190.)
Since evil intent is in general an inseparable element in every crime, any
such mistake of fact as shows the act committed to have proceeded from
no sort of evil in the mind necessarily relieves the actor from criminal
liability provided always there is no fault or negligence on his part; and
as laid down by Baron Parke, "The guilt of the accused must depend on
the circumstances as they appear to him." (Reg. vs. Thurborn, 1 Den. C.,
387; P. vs. Anderson, 44 Cal.., 65; P. vs. Lamb, 54 Barb., 342;
Yates vs. P., 32 N. Y., 509; Patterson vs. P., 46 Barb., 625;
Reg. vs. Cohen, 8 Cox C. C., 41; P. vs. Miles, 55 Cal., 207, 209;
Nalley vs. S., 28 Tex. Ap., 387.) That is to say, the question as to
whether he honestly, in good faith, and without fault or negligence fell
into the mistake is to be determined by the circumstances as they
appeared to him at the time when the mistake was made, and the effect
which the surrounding circumstances might reasonably be expected to
have on his mind, in forming the intent, criminal or other wise, upon
which he acted.
 If, in language not uncommon in the cases, one has reasonable
cause to believe the existence of facts which will justify a killing
— or, in terms more nicely in accord with the principles on
which the rule is founded, if without fault or carelessness he does
believe them — he is legally guiltless of the homicide; though he
mistook the facts, and so the life of an innocent person is
unfortunately extinguished. In other words, and with reference to
the right of self-defense and the not quite harmonious authorities,
it is the doctrine of reason and sufficiently sustained in
adjudication, that notwithstanding some decisions apparently
adverse, whenever a man undertakes self-defense, he is justified
in acting on the facts as they appear to him. If, without fault or
carelessness, he is misled concerning them, and defends himself
correctly according to what he thus supposes the facts to be the
law will not punish him though they are in truth otherwise, and
he was really no occassion for the extreme measures. (Bishop's
New Criminal Law, sec. 305, and large array of cases there
cited.)
The common illustration in the American and English textbooks of the
application of this rule is the case where a man, masked and disguised as
a footpad, at night and on a lonely road, "holds up" his friends in a spirit
of mischief, and with leveled pistol demands his money or his life, but is
killed by his friend under the mistaken belief that the attack is a real one,
that the pistol leveled at his head is loaded, and that his life and property
are in imminent danger at the hands of the aggressor. No one will doubt
that if the facts were such as the slayer believed them to be he would be
innocent of the commission of any crime and wholly exempt from
criminal liability, although if he knew the real state of the facts when he
took the life of his friend he would undoubtedly be guilty of the crime of
homicide or assassination. Under such circumstances, proof of his
innocent mistake of the facts overcomes the presumption of malice or
criminal intent, and (since malice or criminal intent is a necessary
ingredient of the "act punished by law" in cases of homicide or
assassination) overcomes at the same time the presumption established in
article 1 of the code, that the "act punished by law" was committed
"voluntarily."
Parson, C.J., in the Massachusetts court, once said:
If the party killing had reasonable grounds for believing that the
person slain had a felonious design against him, and under that
supposition killed him, although it should afterwards appear that
there was no such design, it will not be murder, but it will be
either manslaughter or excusable homicide, according to the
degree of caution used and the probable grounds of such belief.
(Charge to the grand jury in Selfridge's case, Whart, Hom., 417,
418, Lloyd's report of the case, p.7.)
In this case, Parker, J., charging the petit jury, enforced the doctrine as
follows:
A, in the peaceable pursuit of his affairs, sees B rushing rapidly
toward him, with an outstretched arms and a pistol in his hand,
and using violent menaces against his life as he advances. Having
approached near enough in the same attitude, A, who has a club
in his hand, strikes B over the head before or at the instant the
pistol is discharged; and of the wound B dies. It turns out the
pistol was loaded with powder only, and that the real design of B
was only to terrify A. Will any reasonable man say that A is more
criminal that he would have been if there had been a bullet in the
pistol? Those who hold such doctrine must require that a man so
attacked must, before he strikes the assailant, stop and ascertain
how the pistol is loaded — a doctrine which would entirely take
away the essential right of self-defense. And when it is
considered that the jury who try the cause, and not the party
killing, are to judge of the reasonable grounds of his
apprehension, no danger can be supposed to flow from this
principle. (Lloyd's Rep., p. 160.)
To the same effect are various decisions of the supreme court of Spain,
cited by Viada, a few of which are here set out in full because the facts
are somewhat analogous to those in the case at bar.
QUESTION III. When it is shown that the accused was sitting at
his hearth, at night, in company only of his wife, without other
light than reflected from the fire, and that the man with his back
to the door was attending to the fire, there suddenly entered a
person whom he did not see or know, who struck him one or two
blows, producing a contusion on the shoulder, because of which
he turned, seized the person and took from his the stick with
which he had undoubtedly been struck, and gave the unknown
person a blow, knocking him to the floor, and afterwards striking
him another blow on the head, leaving the unknown lying on the
floor, and left the house. It turned out the unknown person was
his father-in-law, to whom he rendered assistance as soon as he
learned his identity, and who died in about six days in
consequence of cerebral congestion resulting from the blow. The
accused, who confessed the facts, had always sustained pleasant
relations with his father-in-law, whom he visited during his
sickness, demonstrating great grief over the occurrence. Shall he
be considered free from criminal responsibility, as having acted
in self-defense, with all the circumstances related in paragraph 4,
article 8, of the Penal Code? The criminal branch of
the Audiencia of Valladolid found that he was an illegal
aggressor, without sufficient provocation, and that there did not
exists rational necessity for the employment of the force used,
and in accordance with articles 419 and 87 of the Penal Code
condemned him to twenty months of imprisonment, with
accessory penalty and costs. Upon appeal by the accused, he was
acquitted by the supreme court, under the following sentence:
"Considering, from the facts found by the sentence to have been
proven, that the accused was surprised from behind, at night, in
his house beside his wife who was nursing her child, was
attacked, struck, and beaten, without being able to distinguish
with which they might have executed their criminal intent,
because of the there was no other than fire light in the room, and
considering that in such a situation and when the acts executed
demonstrated that they might endanger his existence, and
possibly that of his wife and child, more especially because his
assailant was unknown, he should have defended himself, and in
doing so with the same stick with which he was attacked, he did
not exceed the limits of self-defense, nor did he use means which
were not rationally necessary, particularly because the instrument
with which he killed was the one which he took from his
assailant, and was capable of producing death, and in the
darkness of the house and the consteration which naturally
resulted from such strong aggression, it was not given him to
known or distinguish whether there was one or more assailants,
nor the arms which they might bear, not that which they might
accomplish, and considering that the lower court did not find
from the accepted facts that there existed rational necessity for
the means employed, and that it did not apply paragraph 4 of
article 8 of the Penal Code, it erred, etc." (Sentence of supreme
court of Spain, February 28, 1876.) (Viada, Vol. I, p. 266.) .
QUESTION XIX. A person returning, at night, to his house,
which was situated in a retired part of the city, upon arriving at a
point where there was no light, heard the voice of a man, at a
distance of some 8 paces, saying: "Face down, hand over you
money!" because of which, and almost at the same money, he
fired two shots from his pistol, distinguishing immediately the
voice of one of his friends (who had before simulated a different
voice) saying, "Oh! they have killed me," and hastening to his
assistance, finding the body lying upon the ground, he cried,
"Miguel, Miguel, speak, for God's sake, or I am ruined," realizing
that he had been the victim of a joke, and not receiving a reply,
and observing that his friend was a corpse, he retired from the
place. Shall he be declared exempt in toto from responsibility as
the author of this homicide, as having acted in just self-defense
under the circumstances defined in paragraph 4, article 8, Penal
Code? The criminal branch of the Audiencia of Malaga did not so
find, but only found in favor of the accused two of the requisites
of said article, but not that of the reasonableness of the means
employed to repel the attack, and, therefore, condemned the
accused to eight years and one day of prison mayor, etc. The
supreme court acquitted the accused on his appeal from this
sentence, holding that the accused was acting under a justifiable
and excusable mistake of fact as to the identity of the person
calling to him, and that under the circumstances, the darkness and
remoteness, etc., the means employed were rational and the
shooting justifiable. (Sentence supreme court, March 17, 1885.)
(Viada, Vol. I, p. 136.)
QUESTION VI. The owner of a mill, situated in a remote spot, is
awakened, at night, by a large stone thrown against his window
— at this, he puts his head out of the window and inquires what
is wanted, and is answered "the delivery of all of his money,
otherwise his house would be burned" — because of which, and
observing in an alley adjacent to the mill four individuals, one of
whom addressed him with blasphemy, he fired his pistol at one
the men, who, on the next morning was found dead on the same
spot. Shall this man be declared exempt from criminal
responsibility as having acted in just self-defense with all of the
 requisites of law? The criminal branch of the requisites of law? The writer, with due respect to the opinion of the majority of the court,
The criminal branch of the Audiencia of Zaragoza finds that there believes that, according to the merits of the case, the crime of homicide
existed in favor of the accused a majority of the requisites to by reckless negligence, defined and punishes in article 568 of the Penal
exempt him from criminal responsibility, but not that of Code, was committed, inasmuch as the victim was wilfully
reasonable necessity for the means, employed, and condemned (voluntariomente) killed, and while the act was done without malice or
the accused to twelve months of prision correctional for the criminal intent it was, however, executed with real negligence, for the
homicide committed. Upon appeal, the supreme court acquitted acts committed by the deceased could not warrant the aggression by the
the condemned, finding that the accused, in firing at the defendant under the erroneous belief on the part of the accused that the
malefactors, who attack his mill at night in a remote spot by person who assaulted him was a malefactor; the defendant therefore
threatening robbery and incendiarism, was acting in just self- incurred responsibility in attacking with a knife the person who was
defense of his person, property, and family. (Sentence of May 23, accustomed to enter said room, without any justifiable motive.
1877). (I Viada, p. 128.) By reason of the nature of the crime committed, in the opinion of the
A careful examination of the facts as disclosed in the case at bar undersigned the accused should be sentenced to the penalty of one year
convinces us that the defendant Chinaman struck the fatal blow alleged and one month of prision correctional, to suffer the accessory penalties
in the information in the firm belief that the intruder who forced open the provided in article 61, and to pay an indemnify of P1,000 to the heirs of
door of his sleeping room was a thief, from whose assault he was in the deceased, with the costs of both instances, thereby reversing the
imminent peril, both of his life and of his property and of the property judgment appealed from.
committed to his charge; that in view of all the circumstances, as they
must have presented themselves to the defendant at the time, he acted in
good faith, without malice, or criminal intent, in the belief that he was
doing no more than exercising his legitimate right of self-defense; that
had the facts been as he believed them to be he would have been wholly
exempt from criminal liability on account of his act; and that he can not
be said to have been guilty of negligence or recklessness or even
carelessness in falling into his mistake as to the facts, or in the means
adopted by him to defend himself from the imminent danger which he
believe threatened his person and his property and the property under his
charge.
The judgment of conviction and the sentence imposed by the trial court
should be reversed, and the defendant acquitted of the crime with which
he is charged and his bail bond exonerated, with the costs of both
instance de oficio. So ordered.
Johnson Moreland and Elliott, JJ., concur.
Arellano, C.J., and Mapa, J., dissent.

Separate Opinions
TORRES, J., dissenting:
G.R. No. L-47722 July 27, 1943
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
ANTONIO Z. OANIS and ALBERTO GALANTA, defendants-
appellants.
Antonio Z. Oanis in his own behalf.
Maximo L. Valenzuela for appellant Galanta.
Acting Solicitor-General Ibañez and Assistant Attorney Torres for
appellee.
MORAN, J.:
Charged with the crime of murder of one Serapio Tecson, the accused
Antonio Z. Oanis and Alberto Galanta, chief of police of Cabanatuan and
corporal of the Philippine Constabulary, respectively, were, after due
trial, found guilty by the lower court of homicide through reckless
imprudence and were sentenced each to an indeterminate penalty of from
one year and six months to two years and two months of prison
correccional and to indemnify jointly and severally the heirs of the
deceased in the amount of P1,000. Defendants appealed separately from
this judgment.
In the afternoon of December 24, 1938. Captain Godofredo Monsod,
Constabulary Provincial Inspector at Cabanatuan, Nueva Ecija, received
from Major Guido a telegram of the following tenor: "Information
received escaped convict Anselmo Balagtas with bailarina and Irene in
Cabanatuan get him dead or alive." Captain Monsod accordingly called
for his first sergeant and asked that he be given four men. Defendant
corporal Alberto Galanta, and privates Nicomedes Oralo, Venancio
Serna and D. Fernandez, upon order of their sergeant, reported at the
office of the Provincial Inspector where they were shown a copy of the
above-quoted telegram and a newspaper clipping containing a picture of
Balagtas. They were instructed to arrest Balagtas and, if overpowered, to
follow the instruction contained in the telegram. The same instruction
was given to the chief of police Oanis who was likewise called by the
Provincial Inspector. When the chief of police was asked whether he
knew one Irene, a bailarina, he answered that he knew one of loose
morals of the same name. Upon request of the Provincial Inspector, the
chief of police tried to locate some of his men to guide the constabulary
soldiers in ascertaining Balagtas' whereabouts, and failing to see anyone
of them he volunteered to go with the party. The Provincial Inspector
divided the party into two groups with defendants Oanis and Galanta,
and private Fernandez taking the route to Rizal street leading to the
house where Irene was supposedly living. When this group arrived at
Irene's house, Oanis approached one Brigida Mallare, who was then
stripping banana stalks, and asked her where Irene's room was. Brigida
indicated the place and upon further inquiry also said that Irene was
sleeping with her paramour. Brigida trembling, immediately returned to
her own room which was very near that occupied by Irene and her
paramour. Defendants Oanis and Galanta then went to the room of Irene,
and an seeing a man sleeping with his back towards the door where they
were, simultaneously or successively fired at him with their .32 and .45
caliber revolvers. Awakened by the gunshots, Irene saw her paramour
already wounded, and looking at the door where the shots came, she saw
the defendants still firing at him. Shocked by the entire scene. Irene
fainted; it turned out later that the person shot and killed was not the
notorious criminal Anselmo Balagtas but a peaceful and innocent citizen
named Serapio Tecson, Irene's paramour. The Provincial Inspector,
informed of the killing, repaired to the scene and when he asked as to
who killed the deceased. Galanta, referring to himself and to Oanis,
answered: "We two, sir." The corpse was thereafter brought to the
provincial hospital and upon autopsy by Dr. Ricardo de Castro, multiple
gunshot wounds inflicted by a .32 and a .45 caliber revolvers were found
on Tecson's body which caused his death.
These are the facts as found by the trial court and fully supported by the
evidence, particularly by the testimony of Irene Requinea. Appellants
gave, however, a different version of the tragedy. According to Appellant
Galanta, when he and chief of police Oanis arrived at the house, the latter
asked Brigida where Irene's room was. Brigida indicated the place, and
upon further inquiry as to the whereabouts of Anselmo Balagtas, she said
that he too was sleeping in the same room. Oanis went to the room thus
indicated and upon opening the curtain covering the door, he said: "If
you are Balagtas, stand up." Tecson, the supposed Balagtas, and Irene
woke up and as the former was about to sit up in bed. Oanis fired at him.
Wounded, Tecson leaned towards the door, and Oanis receded and
shouted: "That is Balagtas." Galanta then fired at Tecson.
On the other hand, Oanis testified that after he had opened the curtain
covering the door and after having said, "if you are Balagtas stand up."
Galanta at once fired at Tecson, the supposed Balagtas, while the latter
was still lying on bed, and continued firing until he had exhausted his
bullets: that it was only thereafter that he, Oanis, entered the door and
upon seeing the supposed Balagtas, who was then apparently watching
and picking up something from the floor, he fired at him.
The trial court refused to believe the appellants. Their testimonies are
certainly incredible not only because they are vitiated by a natural urge
to exculpate themselves of the crime, but also because they are
materially contradictory. Oasis averred that be fired at Tecson when the
latter was apparently watching somebody in an attitudes of picking up
something from the floor; on the other hand, Galanta testified that Oasis
shot Tecson while the latter was about to sit up in bed immediately after
he was awakened by a noise. Galanta testified that he fired at Tecson, the
supposed Balagtas, when the latter was rushing at him. But Oanis
assured that when Galanta shot Tecson, the latter was still lying on bed.
It is apparent from these contradictions that when each of the appellants
tries to exculpate himself of the crime charged, he is at once belied by
the other; but their mutual incriminating averments dovetail with and
corroborate substantially, the testimony of Irene Requinea. It should be
recalled that, according to Requinea, Tecson was still sleeping in bed
when he was shot to death by appellants. And this, to a certain extent, is
confirmed by both appellants themselves in their mutual recriminations.
According, to Galanta, Oanis shot Tecson when the latter was still in bed
about to sit up just after he was awakened by a noise. And Oanis assured
that when Galanta shot Tecson, the latter was still lying in bed. Thus
corroborated, and considering that the trial court had the opportunity to
observe her demeanor on the stand, we believe and so hold that no error
was committed in accepting her testimony and in rejecting the
exculpatory pretensions of the two appellants. Furthermore, a careful
examination of Irene's testimony will show not only that her version of
the tragedy is not concocted but that it contains all indicia of veracity. In
her cross-examination, even misleading questions had been put which
were unsuccessful, the witness having stuck to the truth in every detail of
the occurrence. Under these circumstances, we do not feel ourselves
justified in disturbing the findings of fact made by the trial court.
The true fact, therefore, of the case is that, while Tecson was sleeping in
his room with his back towards the door, Oanis and Galanta, on sight,
fired at him simultaneously or successively, believing him to be
Anselmo Balagtas but without having made previously any reasonable
inquiry as to his identity. And the question is whether or not they may,
upon such fact, be held responsible for the death thus caused to Tecson.
It is contended that, as appellants acted in innocent mistake of fact in the
honest performance of their official duties, both of them believing that
Tecson was Balagtas, they incur no criminal liability. Sustaining this
theory in part, the lower court held and so declared them guilty of the
crime of homicide through reckless imprudence. We are of the opinion,
however, that, under the circumstances of the case, the crime committed
by appellants is murder through specially mitigated by circumstances to
be mentioned below.
In support of the theory of non-liability by reasons of honest mistake of
fact, appellants rely on the case of U.S. v. Ah Chong, 15 Phil., 488. The
maxim is ignorantia facti excusat, but this applies only when the mistake
is committed without fault or carelessness. In the Ah Chong case,
defendant therein after having gone to bed was awakened by someone
trying to open the door. He called out twice, "who is there," but received
no answer. Fearing that the intruder was a robber, he leaped from his bed
and called out again., "If you enter the room I will kill you." But at that
precise moment, he was struck by a chair which had been placed against
the door and believing that he was then being attacked, he seized a
kitchen knife and struck and fatally wounded the intruder who turned out
to be his room-mate. A common illustration of innocent mistake of fact
is the case of a man who was marked as a footpad at night and in a lonely
road held up a friend in a spirit of mischief, and with leveled, pistol
demanded his money or life. He was killed by his friend under the
mistaken belief that the attack was real, that the pistol leveled at his head
was loaded and that his life and property were in imminent danger at the
hands of the aggressor. In these instances, there is an innocent mistake of
fact committed without any fault or carelessness because the accused,
having no time or opportunity to make a further inquiry, and being
pressed by circumstances to act immediately, had no alternative but to
take the facts as they then appeared to him, and such facts justified his
act of killing. In the instant case, appellants, unlike the accused in the
instances cited, found no circumstances whatsoever which would press
them to immediate action. The person in the room being then asleep,
appellants had ample time and opportunity to ascertain his identity
without hazard to themselves, and could even effect a bloodless arrest if
any reasonable effort to that end had been made, as the victim was
unarmed, according to Irene Requinea. This, indeed, is the only
legitimate course of action for appellants to follow even if the victim was
really Balagtas, as they were instructed not to kill Balagtas at sight but to
arrest him, and to get him dead or alive only if resistance or aggression is
offered by him.
Although an officer in making a lawful arrest is justified in using such
force as is reasonably necessary to secure and detain the offender,
overcome his resistance, prevent his escape, recapture him if he escapes,
and protect himself from bodily harm (People vs. Delima, 46 Phil, 738),
yet he is never justified in using unnecessary force or in treating him
with wanton violence, or in resorting to dangerous means when the arrest
could be effected otherwise (6 C.J.S., par. 13, p. 612). The doctrine is
restated in the new Rules of Court thus: "No unnecessary or
unreasonable force shall be used in making an arrest, and the person
arrested shall not be subject to any greater restraint than is necessary for
his detention." (Rule 109, sec. 2, par. 2). And a peace officer cannot
claim exemption from criminal liability if he uses unnecessary force or
violence in making an arrest (5 C.J., p. 753; U.S. vs. Mendoza, 2 Phil.,
109). It may be true that Anselmo Balagtas was a notorious criminal, a
life-termer, a fugitive from justice and a menace to the peace of the
community, but these facts alone constitute no justification for killing
him when in effecting his arrest, he offers no resistance or in fact no
resistance can be offered, as when he is asleep. This, in effect, is the
principle laid down, although upon different facts, in U.S. vs. Donoso (3
Phil., 234, 242).
It is, however, suggested that a notorious criminal "must be taken by
storm" without regard to his right to life which he has by such notoriety
already forfeited. We may approve of this standard of official conduct
where the criminal offers resistance or does something which places his
captors in danger of imminent attack. Otherwise we cannot see how, as
in the present case, the mere fact of notoriety can make the life of a
criminal a mere trifle in the hands of the officers of the law. Notoriety
rightly supplies a basis for redoubled official alertness and vigilance; it
never can justify precipitate action at the cost of human life. Where, as
here, the precipitate action of the appellants has cost an innocent life and
there exist no circumstances whatsoever to warrant action of such
character in the mind of a reasonably prudent man, condemnation — not
condonation — should be the rule; otherwise we should offer a premium
to crime in the shelter of official actuation.
The crime committed by appellants is not merely criminal negligence,
the killing being intentional and not accidental. In criminal negligence,
the injury caused to another should be unintentional, it being simply the
incident of another act performed without malice. (People vs. Sara, 55
Phil., 939). In the words of Viada, "para que se celifique un hecho de
imprudencia es preciso que no haya mediado en el malicia ni intencion
alguna de dañar; existiendo esa intencion, debera calificarse el hecho del
delito que ha producido, por mas que no haya sido la intencion del
agente el causar un mal de tanta gravedad como el que se produjo."
(Tomo 7, Viada Codigo Penal Comentado, 5.a ed. pag. 7). And, as once
held by this Court, a deliberate intent to do an unlawful act is essentially
inconsistent with the idea of reckless imprudence (People vs. Nanquil, 43
Phil., 232; People vs. Bindor, 56 Phil., 16), and where such unlawful act
is wilfully done, a mistake in the identity of the intended victim cannot
be considered as reckless imprudence (People vs. Gona, 54 Phil., 605) to
support a plea of mitigated liability.
As the deceased was killed while asleep, the crime committed is murder
with the qualifying circumstance of alevosia. There is, however, a
mitigating circumstance of weight consisting in the incomplete justifying
circumstance defined in article 11, No. 5, of the Revised Penal Code.
According to such legal provision, a person incurs no criminal liability
when he acts in the fulfillment of a duty or in the lawful exercise of a
right or office. There are two requisites in order that the circumstance
may be taken as a justifying one: (a) that the offender acted in the
performance of a duty or in the lawful exercise of a right; and (b) that the
injury or offense committed be the necessary consequence of the due
performance of such duty or the lawful exercise of such right or office.
In the instance case, only the first requisite is present — appellants have
acted in the performance of a duty. The second requisite is wanting for
the crime by them committed is not the necessary consequence of a due
performance of their duty. Their duty was to arrest Balagtas or to get him
dead or alive if resistance is offered by him and they are overpowered.
But through impatience or over-anxiety or in their desire to take no
chances, they have exceeded in the fulfillment of such duty by killing the
person whom they believed to be Balagtas without any resistance from
him and without making any previous inquiry as to his identity.
According to article 69 of the Revised Penal Code, the penalty lower by
one or two degrees than that prescribed by law shall, in such case, be
imposed.
For all the foregoing, the judgment is modified and appellants are hereby
declared guilty of murder with the mitigating circumstance above
mentioned, and accordingly sentenced to an indeterminate penalty of
from five (5) years of prision correctional to fifteen (15) years
of reclusion temporal, with the accessories of the law, and to pay the
heirs of the deceased Serapio Tecson jointly and severally an indemnity
of P2,000, with costs.
Yulo, C.J., Bocobo, Generoso and Lopez Vito, A., concur.
Separate Opinions
PARAS, J., dissenting:
Anselmo Balagtas, a life termer and notorious criminal, managed to
escape and flee form Manila to the provinces. Receiving information to
the effect that he was staying with one Irene in Cabanatuan, Nueva Ecija,
the office of the Constabulary in Manila ordered the Provincial Inspector
in Cabanatuan by telegram dispatched on December 25, 1938, to get
Balagtas "dead or alive". Among those assigned to the task of carrying
out the said order, were Antonio Z. Oanis, chief of police of Cabanatuan,
and Alberto Galanta, a Constabulary corporal, to whom the telegram
received by the Provincial Inspector and a newspaper picture of Balagtas
were shown. Oanis, Galanta and a Constabulary private, after being told
by the Provincial Inspector to gather information about Balagtas, "to
arrest him and, if overpowered, to follow the instructions contained in
the telegram," proceeded to the place where the house of Irene was
located. Upon arriving thereat, Oanis approached Brigida Mallari, who
was then gathering banana stalks in the yard, and inquired for the room
of Irene. After Mallari had pointed out the room, she was asked by Oanis
to tell where Irene's paramour, Balagtas, was, whereupon Mallari
answered that he was sleeping with Irene. Upon reaching the room
indicated, Oanis and Galanta, after the former had shouted "Stand up, if
you are Balagtas," started shooting the man who was found by them
lying down beside a woman. The man was thereby killed, but Balagtas
was still alive, for it turned out that the person shot by Oanis and Galanta
was one Serapio Tecson.
Consequently, Oanis and Galanta were charged with having committed
murder. The Court of First Instance of Nueva Ecija, however, convicted
them only of homicide through reckless imprudence and sentenced them
each to suffer the indeterminate penalty of from 1 year and 6 months to 2
years and 2 months of prision correctional, to jointly and severally
indemnify the heirs of Serapio Tecson in the amount of P1,000, and to
pay the costs. Oanis and Galanta have appealed.
In accomplishing the acts with which the appellants were charged, they
undoubtedly followed the order issued by the Constabulary authorities in
Manila requiring the Provincial Inspector in Cabanatuan to get Balagtas
dead or alive, in the honest belief that Serapio Tecson was Anselmo
Balagtas. As the latter became a fugitive criminal, with revolvers in his
possession and a record that made him extremely dangerous and a public
terror, the Constabulary authorities were justified in ordering his arrest,
whether dead or alive. In view of said order and the danger faced by the
appellants in carrying it out, they cannot be said to have acted
feloniously in shooting the person honestly believed by them to be the
wanted man. Conscious of the fact that Balagtas would rather kill than be
captured, the appellants did not want to take chances and should not be
penalized for such prudence. On the contrary, they should be
commended for their bravery and courage bordering on recklessness
because, without knowing or ascertaining whether the wanted man was
in fact asleep in his room, they proceeded thereto without hesitation and
thereby exposed their lives to danger.
The Solicitor-General, however, contends that the appellants were
authorized to use their revolvers only after being overpowered by
Balagtas. In the first place, the alleged instruction by the Provincial
Inspector to that effect, was in violation of the express order given by the
Constabulary authorities in Manila and which was shown to the
appellants. In the second place, it would indeed be suicidal for the
appellants or, for that matter, any agent of the authority to have waited
until they have been overpowered before trying to put our such a
character as Balagtas. In the third place, it is immaterial whether or not
the instruction given by the Provincial Inspector was legitimate and
proper, because the facts exist that the appellants acted in conformity
with the express order of superior Constabulary authorities, the legality
or propriety of which is not herein questioned.
The theory of the prosecution has acquired some plausibility, though
quite psychological or sentimental, in view only of the fact that it was
not Balagtas who was actually killed, but an "innocent man . . . while he
was deeply asleep." Anybody's heart will be profoundly grieved by the
trade, but in time will be consoled by the realization that the life of
Serapio Tecson was not vainly sacrificed, for the incident will always
serve as a loud warning to any one desiring to follow in the footsteps of
Anselmo Balagtas that in due time the duly constituted authorities will,
upon proper order, enforce the summary forfeiture of his life.
In my opinion, therefore, the appellants are not criminally liable if the
person killed by them was in fact Anselmo Balagtas for the reason that
they did so in the fulfillment of their duty and in obedience to an order
issued by a superior for some lawful purpose (Revised Penal Code, art.
11, pars. 5 and 6). They also cannot be held criminally liable even if the
person killed by them was not Anselmo Balagtas, but Serapio Tecson,
because they did so under an honest mistake of fact not due to negligence
or bad faith. (U.S. vs. Ah Chong, 15 Phil., 488).
It is true that, under article 4 of the Revised Penal Code, criminal
liability is incurred by any person committing a felony although the
wrongful act done be different from that which he intended; but said
article is clearly inapplicable since the killing of the person who was
believed to be Balagtas was, as already stated, not wrongful or felonious.
The case of U.S. vs. Mendieta (34 Phil., 242), cited by the Solicitor-
General, is not in point, inasmuch as the defendant therein, who intended
to injure Hilario Lauigan with whom he had a quarrel, but killed another
by mistake, would not be exempted from criminal liability if he actually
injured or killed Hilario Lauigan, there being a malicious design on his
part. The other case involved by the prosecution is U.S. vs. Donoso (3
Phil., 234). This is also not in point, as it appears that the defendants
therein killed one Pedro Almasan after he had already surrendered and
allowed himself to be bound and that the said defendants did not have
lawful instructions from superior authorities to capture Almasan dead or
alive.
The appealed judgment should therefore be reversed and the appellants,
Antonio Z. Oanis and Alberto Galanta, acquitted, with costs de oficio.
HONTIVEROS, J., dissenting:
According to the opinion of the majority, it is proper to follow the rule
that a notorious criminal "must be taken by storm without regard to his
life which he has, by his conduct, already forfeited," whenever said
criminal offers resistance or does something which places his captors in
danger of imminent attack. Precisely, the situation which confronted the
accused-appellants Antonio Z. Oanis and Alberto Galanta in the
afternoon of December 24, 1938, was very similar to this. It must be
remembered that both officers received instructions to get Balagtas "dead
or alive" and according to the attitude of not only the said appellants but
also of Capt. Monsod, constabulary provincial inspector of Nueva Ecija,
it may be assumed that said instructions gave more emphasis to the first
part; namely, to take him dead. It appears in the record that after the
shooting, and having been informed of the case, Capt. Monsod stated
that Oanis and Galanta might be decorated for what they had done. That
was when all parties concerned honestly believed that the dead person
was Balagtas himself, a dangerous criminal who had escaped from his
guards and was supposedly armed with a .45 caliber pistol Brigida
Mallari, the person whom the appellants met upon arriving at the house
of Irene Requinea, supposed mistress of Balagtas, informed them that
said Balagtas was upstairs. Appellants found there asleep a man closely
resembling the wanted criminal. Oanis said: If you are Balagtas stand
up," But the supposed criminal showed his intention to attack the
appellants, a conduct easily explained by the fact that he should have felt
offended by the intrusion of persons in the room where he was
peacefully lying down with his mistress. In such predicament, it was
nothing but human on the part of the appellants to employ force and to
make use of their weapons in order to repel the imminent attack by a
person who, according to their belief, was Balagtas It was unfortunate,
however that an innocent man was actually killed. But taking into
consideration the facts of the case, it is, according to my humble opinion,
proper to apply herein the doctrine laid down in the case of U.S. vs. Ah
Chong (15 Phil., 488). In the instant case we have, as in the case supra,
an innocent mistake of fact committed without any fault or carelessness
on the part of the accused, who having no time to make a further inquiry,
had no alternative but to take the facts as they appeared to them and act
immediately.
The decision of the majority, in recognition of the special circumstances
of this case which favored the accused-appellants, arrives at the
conclusion that an incomplete justifying circumstance may be invoked,
and therefore, according to Article 69 of the Revised Penal Code, the
imposable penalty should be one which is lower by one or two degrees
than that prescribed by law. This incomplete justifying circumstance is
that defined in Article 11, No. 5 of the Revised Penal Code, in favor of
"a person who acts in the fulfillment of a duty or in the lawful exercise of
a right or office." I believe that the application of this circumstance is not
proper. Article 69 of the Revised Penal Code provides as follows:
Art. 69. Penalty to be imposed when the crime committed is not
wholly excusable. — A penalty lower by one or two degrees than
that prescribed by law shall be imposed if the deed is not wholly
 excusable by reason of the lack of some of the conditions
required to justify the same or to exempt from criminal liability
in the several cases mentioned in articles 11 and 12, provided that
the majority of such conditions be present. The courts shall
impose the penalty in the period which may be deemed proper, in
view of the number and nature of the conditions of exemption
present or lacking.
This provision has been copied almost verbatim from Article 84 of the
old Penal Code of the Philippines, and which was also taken from Article
87 of the Spanish Penal Code of 1870.
Judge Guillermo Guevara, one of the members of the Committee created
by Administrative Order No. 94 of the Department of Justice for the
drafting of the Revised Penal Code, in commenting on Article 69, said
that the justifying circumstances and circumstances exempting from
liability which are the subject matter of this article are the following:
self-defense, defense of relatives, defense of strangers, state of necessity
and injury caused by mere accident. Accordingly, justifying
circumstance No. 5 of Article 11 dealing with the fulfillment of a duty or
the lawful exercise of a right, calling or office, cannot be placed within
its scope.
The eminent treatiser of criminal law Mr. Groizard, in his commentary of
Article 87 of the Spanish Penal Code of 1870 which is the source of
Article 69 of our Code says:
Ni tratandose de la imbecilidad, ni de la locura, ni de la menor
edad, ni del que obra violentado por una fuerza inrresistible o
impulsado por miedo insuperable de un mal igual o mayor, o en
cumplimiento de un deber, o en el ejercito legitimo de un
derecho, oficio o cargo, o en virtud de obediencia debida, ni del
que incurre en alguna omision hallandose impedido por causa
legitima o insuperable, puede tener aplicacion al articulo que
comentamos. Y la razon es obvia. En ninguna de estas execiones
hay pluralidad de requisitos. La irrespondabilidad depende de una
sola condicion. Hay o no perturbacion de la razon; el autor del
hecho es o no menor de nueve años; existe o no violencia
material o moral irresistible, etc., etc.; tal es lo que
respectivamente hay que examinar y resolver para declarar la
culpabilidad o inculpabilidad. Es, por lo tanto, imposible que
acontezca lo que el texto que va al frente de estas lineas rquiere,
para que se imponga al autor del hecho la penalidad excepcional
que establece; esto es, que falten algunos requisitos de los que la
ley exige para eximir de responsabilidad, y que concurran
el mayor numero de ellos, toda vez que, en los casos referidos, la
ley no exige multiples condiciones.
It must be taken into account the fact according to Article 69 a penalty
lower by one or two degrees than that prescribed by law shall be imposed
if the deed is not wholly excusable by reason of the lack of some of the
conditions required by the law to justify the same or exempt from
criminal liability. The word "conditions" should not be confused with the
word "requisites". In dealing with justifying circumstance No. 5 Judge
Guevara states: "There are two requisites in order that this circumstance
may be taken into account: (a) That the offender acted in the
performance of his duty or in the lawful exercise of a right; and (b) That
the injury or offense committed be the necessary consequence of the
performance of a duty or the lawful exercise of a right or office." It is
evident that these two requisites concur in the present case if we consider
the intimate connection between the order given to the appellant by Capt.
Monsod, the showing to them of the telegram from Manila to get
Balagtas who was with a bailarina named Irene, the conduct of said
appellants in questioning Brigida Mallari and giving a warning to the
supposed criminal when both found him with Irene, and the statement
made by Capt. Monsod after the shooting.
If appellant Oanis is entitled to a reversal of the decision of the court
below, there are more reasons in favor of the acquittal of appellant
Galanta. According to the evidence no bullet from the gun fired by this
accused ever hit Serapio Tecson. Galanta was armed in the afternoon of
December 24, 1938, with a .45 caliber revolver (Exhibit L). He so
testified and was corroborated by the unchallenged testimony of his
superior officer Sgt. Valeriano Serafica. According to this witness, since
Galanta was made a corporal of the Constabulary he was given, as part
of his equipment, revolver Exhibit L with a serial No. 37121. This gun
had been constantly used by Galanta, and, according to Sgt. Pedro
Marasigan, who accompanied said accused when he took it from his
trunk in the barracks on the night of December 24, 1938, upon order of
Captain Monsod, it was the same revolver which was given to the
witness with five .45 caliber bullets and one empty shell. Fourteen
unused bullets were also taken from Galanta by Sergeant Serafica, thus
completing his regular equipment of twenty bullets which he had on the
morning of December 24, 1938, when Sergeant Serafica made the usual
inspection of the firearms in the possession of the non-commissioned
officers and privates of the constabulary post at Cabanatuan. Galanta
stated that he had fired only one shot and missed. This testimony is
corroborated by that of a ballistic expert who testified that bullets
exhibits F and O, — the first being extracted from the head of the
deceased, causing wound No. 3 of autopsy report Exhibit C and the
second found at the place of the shooting, — had not been fired from
revolver Exhibit L nor from any other revolver of the constabulary
station in Cabanatuan. It was impossible for the accused Galanta to have
substituted his revolver because when Exhibit L was taken from him
nobody in the barracks doubted that the deceased was none other than
Balagtas. Moreover, Exhibit L was not out of order and therefore there
was no reason why Galanta should carry along another gun, according to
the natural course of things. On the other hand, aside from wound No. 3
as above stated, no other wound may be said to have been caused by a
.45 caliber revolver bullet. Doctor Castro's record gives the conclusion
that wound No. 2 must have been caused by a .45 caliber revolver bullet.
Doctor Castro's record gives the conclusion that wound No. 2 must have
been caused by a .45 caliber bullet, but inasmuch as the diameter of the
wound's entrance was only 8 mm., the caliber should be .32 and not .45,
because according to the medico-legal expert who testified in this case, a
bullet of a .45 caliber will produce a wound entrance with either 11 mm.
or 12 mm. diameter. All other wounds found by the surgeon who
performed the autopsy appeared to have been caused by bullets of a
lesser caliber. In consequence, it can be stated that no bullet fired by
Galanta did ever hit or kill Serapio Tecson and therefore there is no
reason why he should be declared criminally responsible for said death.
G.R. No. 172716 November 17, 2010
JASON IVLER y AGUILAR, Petitioner,
vs.
HON. MARIA ROWENA MODESTO-SAN PEDRO, Judge of the
Metropolitan Trial Court, Branch 71, Pasig City, and
EVANGELINE PONCE, Respondents.
DECISION
CARPIO, J.:
The Case
The petition seeks the review1 of the Orders2 of the Regional Trial Court
of Pasig City affirming sub-silencio a lower court’s ruling finding
inapplicable the Double Jeopardy Clause to bar a second prosecution for
Reckless Imprudence Resulting in Homicide and Damage to Property.
This, despite the accused’s previous conviction for Reckless Imprudence
Resulting in Slight Physical Injuries arising from the same incident
grounding the second prosecution.
The Facts
Following a vehicular collision in August 2004, petitioner Jason Ivler
(petitioner) was charged before the Metropolitan Trial Court of Pasig
City, Branch 71 (MeTC), with two separate offenses: (1) Reckless
Imprudence Resulting in Slight Physical Injuries (Criminal Case No.
82367) for injuries sustained by respondent Evangeline L. Ponce
(respondent Ponce); and (2) Reckless Imprudence Resulting in Homicide
and Damage to Property (Criminal Case No. 82366) for the death of
respondent Ponce’s husband Nestor C. Ponce and damage to the spouses
Ponce’s vehicle. Petitioner posted bail for his temporary release in both
cases.
On 7 September 2004, petitioner pleaded guilty to the charge in Criminal
Case No. 82367 and was meted out the penalty of public censure.
Invoking this conviction, petitioner moved to quash the Information in
Criminal Case No. 82366 for placing him in jeopardy of second
punishment for the same offense of reckless imprudence.
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 petitioner’s motion, the
MeTC proceeded with the arraignment and, because of petitioner’s
absence, cancelled his bail and ordered his arrest.4 Seven days later, the
MeTC issued a resolution denying petitioner’s motion to suspend
proceedings and postponing his arraignment until after his
arrest.5 Petitioner sought reconsideration but as of the filing of this
petition, the motion remained unresolved.
Relying on the arrest order against petitioner, respondent Ponce sought
in the RTC the dismissal of S.C.A. No. 2803 for petitioner’s loss of
standing to maintain the suit. Petitioner contested the motion.
The Ruling of the Trial Court
In an Order dated 2 February 2006, the RTC dismissed S.C.A. No. 2803,
narrowly grounding its ruling on petitioner’s forfeiture of standing to
maintain S.C.A. No. 2803 arising from the MeTC’s order to arrest
petitioner for his non-appearance at the arraignment in Criminal Case
No. 82366. Thus, without reaching the merits of S.C.A. No. 2803, the
RTC effectively affirmed the MeTC. Petitioner sought reconsideration
but this proved unavailing.6
Hence, this petition.
Petitioner denies absconding. He explains that his petition in S.C.A. No.
2803 constrained him to forego participation in the proceedings in
Criminal Case No. 82366. Petitioner distinguishes his case from the line
of jurisprudence sanctioning dismissal of appeals for absconding
appellants because his appeal before the RTC was a special civil action
seeking a pre-trial relief, not a post-trial appeal of a judgment of
conviction.7
Petitioner laments the RTC’s failure to reach the merits of his petition in
S.C.A. 2803. Invoking jurisprudence, petitioner argues that his
constitutional right not to be placed twice in jeopardy of punishment for
the same offense bars his prosecution in Criminal Case No. 82366,
having been previously convicted in Criminal Case No. 82367 for the
same offense of reckless imprudence charged in Criminal Case No.
82366. Petitioner submits that the multiple consequences of such crime
are material only to determine his penalty.
Respondent Ponce finds no reason for the Court to disturb the RTC’s
decision forfeiting petitioner’s standing to maintain his petition in S.C.A.
2803. On the merits, respondent Ponce calls the Court’s attention to
jurisprudence holding that light offenses (e.g. slight physical injuries)
cannot be complexed under Article 48 of the Revised Penal Code with
grave or less grave felonies (e.g. homicide). Hence, the prosecution was
obliged to separate the charge in Criminal Case No. 82366 for the slight
physical injuries from Criminal Case No. 82367 for the homicide and
damage to property.
In the Resolution of 6 June 2007, we granted the Office of the Solicitor
General’s motion not to file a comment to the petition as the public
respondent judge is merely a nominal party and private respondent is
represented by counsel.
The Issues
Two questions are presented for resolution: (1) whether petitioner
forfeited his standing to seek relief in S.C.A. 2803 when the MeTC
ordered his arrest following his non-appearance at the arraignment in
Criminal Case No. 82366; and (2) if in the negative, whether petitioner’s
constitutional right under the Double Jeopardy Clause bars further
proceedings in Criminal Case No. 82366.
The Ruling of the Court
We hold that (1) petitioner’s non-appearance at the arraignment in
Criminal Case No. 82366 did not divest him of personality to maintain
the petition in S.C.A. 2803; and (2) the protection afforded by the
Constitution shielding petitioner from prosecutions placing him in
jeopardy of second punishment for the same offense bars further
proceedings in Criminal Case No. 82366.
Petitioner’s Non-appearance at the Arraignment in
Criminal Case No. 82366 did not Divest him of Standing
to Maintain the Petition in S.C.A. 2803
Dismissals of appeals grounded on the appellant’s escape from custody
or violation of the terms of his bail bond are governed by the second
paragraph of Section 8, Rule 124,8 in relation to Section 1, Rule 125, of
the Revised Rules on Criminal Procedure authorizing this Court or the
Court of Appeals to "also, upon motion of the appellee or motu proprio,
dismiss the appeal if the appellant escapes from prison or confinement,
jumps bail or flees to a foreign country during the pendency of the
appeal." The "appeal" contemplated in Section 8 of Rule 124 is a suit to
review judgments of convictions.
The RTC’s dismissal of petitioner’s special civil action for certiorari to
review a pre-arraignment ancillary question on the applicability of the
Due Process Clause to bar proceedings in Criminal Case No. 82366 finds
no basis under procedural rules and jurisprudence. The RTC’s reliance
on People v. Esparas9 undercuts the cogency of its ruling
because Esparas stands for a proposition contrary to the RTC’s ruling.
There, the Court granted review to an appeal by an accused who was
sentenced to death for importing prohibited drugs even though she
jumped bail pending trial and was thus tried and convicted in absentia.
The Court in Esparas treated the mandatory review of death sentences
under Republic Act No. 7659 as an exception to Section 8 of Rule 124.10
The mischief in the RTC’s treatment of petitioner’s non-appearance at
his arraignment in Criminal Case No. 82366 as proof of his loss of
standing becomes more evident when one considers the Rules of Court’s
treatment of a defendant who absents himself from post-arraignment
hearings. Under Section 21, Rule 11411 of the Revised Rules of Criminal
Procedure, the defendant’s absence merely renders his bondsman
potentially liable on its bond (subject to cancellation should the
bondsman fail to produce the accused within 30 days); the defendant
retains his standing and, should he fail to surrender, will be tried in
absentia and could be convicted or acquitted. Indeed, the 30-day period
granted to the bondsman to produce the accused underscores the fact that
mere non-appearance does not ipso facto convert the accused’s status to
that of a fugitive without standing.
Further, the RTC’s observation that petitioner provided "no explanation
why he failed to attend the scheduled proceeding"12 at the MeTC is
belied by the records. Days before the arraignment, petitioner sought the
suspension of the MeTC’s proceedings in Criminal Case No. 82366 in
light of his petition with the RTC in S.C.A. No. 2803. Following the
MeTC’s refusal to defer arraignment (the order for which was released
days after the MeTC ordered petitioner’s arrest), petitioner sought
reconsideration. His motion remained unresolved as of the filing of this
petition.
Petitioner’s Conviction in Criminal Case No. 82367
Bars his Prosecution in Criminal Case No. 82366
The accused’s negative constitutional right not to be "twice put in
jeopardy of punishment for the same offense"13protects him from, among
others, post-conviction prosecution for the same offense, with the prior
verdict rendered by a court of competent jurisdiction upon a valid
information.14 It is not disputed that petitioner’s conviction in Criminal
Case No. 82367 was rendered by a court of competent jurisdiction upon
a valid charge. Thus, the case turns on the question whether Criminal
Case No. 82366 and Criminal Case No. 82367 involve the "same
offense." Petitioner adopts the affirmative view, submitting that the two
cases concern the same offense of reckless imprudence. The MeTC ruled
otherwise, finding that Reckless Imprudence Resulting in Slight Physical
Injuries is an entirely separate offense from Reckless Imprudence
Resulting in Homicide and Damage to Property "as the [latter] requires
proof of an additional fact which the other does not."15
We find for petitioner.
Reckless Imprudence is a Single Crime,
its Consequences on Persons and
Property are Material Only to Determine
the Penalty
The two charges against petitioner, arising from the same facts, were
prosecuted under the same provision of the Revised Penal Code, as
amended, namely, Article 365 defining and penalizing quasi-offenses.
The text of the provision reads:
Imprudence and negligence. — Any person who, by reckless
imprudence, shall commit any act which, had it been intentional, would
constitute a grave felony, shall suffer the penalty of arresto mayor in its
maximum period to prision correccional in its medium period; if it would
have constituted a less grave felony, the penalty of arresto mayor in its
minimum and medium periods shall be imposed; if it would have
constituted a light felony, the penalty of arresto menor in its maximum
period shall be imposed.
Any person who, by simple imprudence or negligence, shall commit an
act which would otherwise constitute a grave felony, shall suffer the
penalty of arresto mayor in its medium and maximum periods; if it
would have constituted a less serious felony, the penalty of arresto mayor
in its minimum period shall be imposed.
When the execution of the act covered by this article shall have only
resulted in damage to the property of another, the offender shall be
punished by a fine ranging from an amount equal to the value of said
damages to three times such value, but which shall in no case be less
than twenty-five pesos.
A fine not exceeding two hundred pesos and censure shall be imposed
upon any person who, by simple imprudence or negligence, shall cause
some wrong which, if done maliciously, would have constituted a light
felony.
In the imposition of these penalties, the court shall exercise their sound
discretion, without regard to the rules prescribed in Article sixty-four.
The provisions contained in this article shall not be applicable:
1. When the penalty provided for the offense is equal to or lower
than those provided in the first two paragraphs of this article, in
which case the court shall impose the penalty next lower in
degree than that which should be imposed in the period which
they may deem proper to apply.
2. When, by imprudence or negligence and with violation of the
Automobile Law, to death of a person shall be caused, in which
case the defendant shall be punished by prision correccional in its
medium and maximum periods.
Reckless imprudence consists in voluntary, but without malice, doing or
failing to do an act from which material damage results by reason of
inexcusable lack of precaution on the part of the person performing or
failing to perform such act, taking into consideration his employment or
occupation, degree of intelligence, physical condition and other
circumstances regarding persons, time and place.
Simple imprudence consists in the lack of precaution displayed in those
cases in which the damage impending to be caused is not immediate nor
the danger clearly manifest.
The penalty next higher in degree to those provided for in this article
shall be imposed upon the offender who fails to lend on the spot to the
injured parties such help as may be in this hand to give.
Structurally, these nine paragraphs are collapsible into four sub-
groupings relating to (1) the penalties attached to the quasi-offenses of
"imprudence" and "negligence" (paragraphs 1-2); (2) a modified penalty
scheme for either or both quasi-offenses (paragraphs 3-4, 6 and 9); (3) a
generic rule for trial courts in imposing penalties (paragraph 5); and (4)
the definition of "reckless imprudence" and "simple imprudence"
(paragraphs 7-8). Conceptually, quasi-offenses penalize "the mental
attitude or condition behind the act, the dangerous recklessness, lack of
care or foresight, the imprudencia punible,"16 unlike willful offenses
which punish the intentional criminal act. These structural and
conceptual features of quasi-offenses set them apart from the mass of
intentional crimes under the first 13 Titles of Book II of the Revised
Penal Code, as amended.
Indeed, the notion that quasi-offenses, whether reckless or simple, are
distinct species of crime, separately defined and penalized under the
framework of our penal laws, is nothing new. As early as the middle of
the last century, we already sought to bring clarity to this field by
rejecting in Quizon v. Justice of the Peace of Pampanga the proposition
that "reckless imprudence is not a crime in itself but simply a way of
committing it x x x"17 on three points of analysis: (1) the object of
punishment in quasi-crimes (as opposed to intentional crimes); (2) the
legislative intent to treat quasi-crimes as distinct offenses (as opposed to
subsuming them under the mitigating circumstance of minimal intent)
and; (3) the different penalty structures for quasi-crimes and intentional
crimes:
The proposition (inferred from Art. 3 of the Revised Penal Code) that
"reckless imprudence" is not a crime in itself but simply a way of
committing it and merely determines a lower degree of criminal liability
is too broad to deserve unqualified assent. There are crimes that by their
structure cannot be committed through imprudence: murder, treason,
robbery, malicious mischief, etc. In truth, criminal negligence in our
Revised Penal Code is treated as a mere quasi offense, and dealt with
separately from willful offenses. It is not a mere question of
classification or terminology. In intentional crimes, the act itself is
punished; in negligence or imprudence, what is principally penalized is
the mental attitude or condition behind the act, the dangerous
recklessness, lack of care or foresight, the imprudencia punible. x x x x
Were criminal negligence but a modality in the commission of felonies,
operating only to reduce the penalty therefor, then it would be absorbed
in the mitigating circumstances of Art. 13, specially the lack of intent to
commit so grave a wrong as the one actually committed. Furthermore,
the theory would require that the corresponding penalty should be fixed
in proportion to the penalty prescribed for each crime when committed
willfully. For each penalty for the willful offense, there would then be a
corresponding penalty for the negligent variety. But instead, our Revised
Penal Code (Art. 365) fixes the penalty for reckless imprudence at
arresto mayor maximum, to prision correccional [medium], if the willful
act would constitute a grave felony, notwithstanding that the penalty for
the latter could range all the way from prision mayor to death, according
to the case. It can be seen that the actual penalty for criminal negligence
bears no relation to the individual willful crime, but is set in relation to a
whole class, or series, of crimes.18 (Emphasis supplied)
This explains why the technically correct way to allege quasi-crimes is to
state that their commission results in damage, either to person or
property.19
Accordingly, we found the Justice of the Peace in Quizon without
jurisdiction to hear a case for "Damage to Property through Reckless
Imprudence," its jurisdiction being limited to trying charges for
Malicious Mischief, an intentional crime conceptually incompatible with
the element of imprudence obtaining in quasi-crimes.
Quizon, rooted in Spanish law20 (the normative ancestry of our present
day penal code) and since repeatedly reiterated,21 stands on solid
conceptual foundation. The contrary doctrinal pronouncement in People
v. Faller22 that "[r]eckless impudence is not a crime in itself x x x [but]
simply a way of committing it x x x,"23 has long been abandoned when
the Court en banc promulgated Quizon in 1955 nearly two
decades after the Court decided Faller in 1939. Quizon rejected Faller’s
conceptualization of quasi-crimes by holding that quasi-crimes under
Article 365 are distinct species of crimes and not merely methods of
committing crimes. Faller found expression in post-Quizon
jurisprudence24 only by dint of lingering doctrinal confusion arising from
an indiscriminate fusion of criminal law rules defining Article 365
crimes and the complexing of intentional crimes under Article 48 of the
Revised Penal Code which, as will be shown shortly, rests on erroneous
conception of quasi-crimes. Indeed, the Quizonian conception of quasi-
crimes undergirded a related branch of jurisprudence applying the
Double Jeopardy Clause to quasi-offenses, barring second prosecutions
for a quasi-offense alleging one resulting act after a prior conviction or
acquittal of a quasi-offense alleging another resulting act but arising
from the same reckless act or omission upon which the second
prosecution was based.
Prior Conviction or Acquittal of
Reckless Imprudence Bars
Subsequent Prosecution for the Same
Quasi-Offense
The doctrine that reckless imprudence under Article 365 is a single
quasi-offense by itself and not merely a means to commit other crimes
such that conviction or acquittal of such quasi-offense bars subsequent
prosecution for the same quasi-offense, regardless of its various resulting
acts, undergirded this Court’s unbroken chain of jurisprudence on double
jeopardy as applied to Article 365 starting with People v. Diaz,25 decided
in 1954. There, a full Court, speaking through Mr. Justice Montemayor,
ordered the dismissal of a case for "damage to property thru reckless
imprudence" because a prior case against the same accused for "reckless
driving," arising from the same act upon which the first prosecution was
based, had been dismissed earlier. Since then, whenever the same legal
question was brought before the Court, that is, whether prior conviction
or acquittal of reckless imprudence bars subsequent prosecution for the
same quasi-offense, regardless of the consequences alleged for both
charges, the Court unfailingly and consistently answered in the
affirmative in People v. Belga26 (promulgated in 1957 by the Court en
banc, per Reyes, J.), Yap v. Lutero27 (promulgated in 1959, unreported,
per Concepcion, J.), People v. Narvas28 (promulgated in 1960 by the
Court en banc, per Bengzon J.), People v. Silva29 (promulgated in 1962
by the Court en banc, per Paredes, J.), People v.
Macabuhay30 (promulgated in 1966 by the Court en banc, per
Makalintal, J.), People v. Buan31 (promulgated in 1968 by the Court en
banc, per Reyes, J.B.L., acting C. J.), Buerano v. Court of
Appeals32 (promulgated in 1982 by the Court en banc, per Relova, J.),
and People v. City Court of Manila33 (promulgated in 1983 by the First
Division, per Relova, J.). These cases uniformly barred the second
prosecutions as constitutionally impermissible under the Double
Jeopardy Clause.
The reason for this consistent stance of extending the constitutional
protection under the Double Jeopardy Clause to quasi-offenses was best
articulated by Mr. Justice J.B.L. Reyes in Buan, where, in barring a
subsequent prosecution for "serious physical injuries and damage to
property thru reckless imprudence" because of the accused’s prior
acquittal of "slight physical injuries thru reckless imprudence," with both
charges grounded on the same act, the Court explained:34
Reason and precedent both coincide in that once convicted or acquitted
of a specific act of reckless imprudence, the accused may not be
prosecuted again for that same act. For the essence of the quasi offense
of criminal negligence under article 365 of the Revised Penal Code lies
in the execution of an imprudent or negligent act that, if intentionally
done, would be punishable as a felony. The law penalizes thus the
negligent or careless act, not the result thereof. The gravity of the
consequence is only taken into account to determine the penalty, it does
not qualify the substance of the offense. And, as the careless act is single,
whether the injurious result should affect one person or several persons,
the offense (criminal negligence) remains one and the same, and can not
be split into different crimes and prosecutions.35 x x x (Emphasis
supplied)
Evidently, the Diaz line of jurisprudence on double jeopardy merely
extended to its logical conclusion the reasoning of Quizon.
There is in our jurisprudence only one ruling going against this unbroken
line of authority. Preceding Diaz by more than a decade, El Pueblo de
Filipinas v. Estipona,36 decided by the pre-war colonial Court in
November 1940, allowed the subsequent prosecution of an accused for
reckless imprudence resulting in damage to property despite his previous
conviction for multiple physical injuries arising from the same reckless
operation of a motor vehicle upon which the second prosecution was
based. Estipona’s inconsistency with the post-war Diaz chain of
jurisprudence suffices to impliedly overrule it. At any rate, all doubts on
this matter were laid to rest in 1982 in Buerano.37 There, we reviewed the
Court of Appeals’ conviction of an accused for "damage to property for
reckless imprudence" despite his prior conviction for "slight and less
serious physical injuries thru reckless imprudence," arising from the
same act upon which the second charge was based. The Court of Appeals
had relied on Estipona. We reversed on the strength of Buan:38
Th[e] view of the Court of Appeals was inspired by the ruling of this
Court in the pre-war case of People vs. Estipona decided on November
14, 1940. However, in the case of People vs. Buan, 22 SCRA 1383
(March 29, 1968), this Court, speaking thru Justice J. B. L. Reyes, held
that –
Reason and precedent both coincide in that once convicted or acquitted
of a specific act of reckless imprudence, the accused may not be
prosecuted again for that same act. For the essence of the quasi offense
of criminal negligence under Article 365 of the Revised Penal Code lies
in the execution of an imprudent or negligent act that, if intentionally
done, would be punishable as a felony. The law penalizes thus the
negligent or careless act, not the result thereof. The gravity of the
consequence is only taken into account to determine the penalty, it does
not qualify the substance of the offense. And, as the careless act is single,
whether the injurious result should affect one person or several persons,
the offense (criminal negligence) remains one and the same, and can not
be split into different crimes and prosecutions.
xxxx
. . . the exoneration of this appellant, Jose Buan, by the Justice of the
Peace (now Municipal) Court of Guiguinto, Bulacan, of the charge of
slight physical injuries through reckless imprudence, prevents his being
prosecuted for serious physical injuries through reckless imprudence in
the Court of First Instance of the province, where both charges are
derived from the consequences of one and the same vehicular
accident, because the second accusation places the appellant in second
jeopardy for the same offense.39 (Emphasis supplied)
Thus, for all intents and purposes, Buerano had effectively overruled
Estipona.
It is noteworthy that the Solicitor General in Buerano, in a reversal of his
earlier stance in Silva, joined causes with the accused, a fact which did
not escape the Court’s attention:
Then Solicitor General, now Justice Felix V. Makasiar, in his
MANIFESTATION dated December 12, 1969 (page 82 of the Rollo)
admits that the Court of Appeals erred in not sustaining petitioner’s plea
of double jeopardy and submits that "its affirmatory decision dated
January 28, 1969, in Criminal Case No. 05123-CR finding petitioner
guilty of damage to property through reckless imprudence should be set
aside, without costs." He stressed that "if double jeopardy exists where
the reckless act resulted into homicide and physical injuries. then the
same consequence must perforce follow where the same reckless act
caused merely damage to property-not death-and physical injuries.
Verily, the value of a human life lost as a result of a vehicular collision
cannot be equated with any amount of damages caused to a motors
vehicle arising from the same mishap."40 (Emphasis supplied)
Hence, we find merit in petitioner’s submission that the lower courts
erred in refusing to extend in his favor the mantle of protection afforded
by the Double Jeopardy Clause. A more fitting jurisprudence could not
be tailored to petitioner’s case than People v. Silva, 41 a Diaz progeny.
There, the accused, who was also involved in a vehicular collision, was
charged in two separate Informations with "Slight Physical Injuries thru
Reckless Imprudence" and "Homicide with Serious Physical Injuries thru
Reckless Imprudence." Following his acquittal of the former, the accused
sought the quashal of the latter, invoking the Double Jeopardy Clause.
The trial court initially denied relief, but, on reconsideration, found merit
in the accused’s claim and dismissed the second case. In affirming the
trial court, we quoted with approval its analysis of the issue following
Diaz and its progeny People v. Belga:42
On June 26, 1959, the lower court reconsidered its Order of May 2, 1959
and dismissed the case, holding: —
[T]he Court believes that the case falls squarely within the doctrine of
double jeopardy enunciated in People v. Belga, x x x In the case cited,
Ciriaco Belga and Jose Belga were charged in the Justice of the Peace
Court of Malilipot, Albay, with the crime of physical injuries through
reckless imprudence arising from a collision between the two
automobiles driven by them (Crim. Case No. 88). Without the aforesaid
complaint having been dismissed or otherwise disposed of, two other
criminal complaints were filed in the same justice of the peace court, in
connection with the same collision one for damage to property through
reckless imprudence (Crim. Case No. 95) signed by the owner of one of
the vehicles involved in the collision, and another for multiple physical
injuries through reckless imprudence (Crim. Case No. 96) signed by the
passengers injured in the accident. Both of these two complaints were
filed against Jose Belga only. After trial, both defendants were acquitted
of the charge against them in Crim. Case No. 88. Following his acquittal,
Jose Belga moved to quash the complaint for multiple physical injuries
through reckless imprudence filed against him by the injured passengers,
contending that the case was just a duplication of the one filed by the
Chief of Police wherein he had just been acquitted. The motion to quash
was denied and after trial Jose Belga was convicted, whereupon he
appealed to the Court of First Instance of Albay. In the meantime, the
case for damage to property through reckless imprudence filed by one of
the owners of the vehicles involved in the collision had been remanded
to the Court of First Instance of Albay after Jose Belga had waived the
second stage of the preliminary investigation. After such remand, the
Provincial Fiscal filed in the Court of First Instance two informations
against Jose Belga, one for physical injuries through reckless
imprudence, and another for damage to property through reckless
imprudence. Both cases were dismissed by the Court of First Instance,
upon motion of the defendant Jose Belga who alleged double jeopardy in
a motion to quash. On appeal by the Prov. Fiscal, the order of dismissal
was affirmed by the Supreme Court in the following language: .
The question for determination is whether the acquittal of Jose Belga in
the case filed by the chief of police constitutes a bar to his subsequent
prosecution for multiple physical injuries and damage to property
through reckless imprudence.
In the case of Peo[ple] v. F. Diaz, G. R. No. L-6518, prom. March 30,
1954, the accused was charged in the municipal court of Pasay City with
reckless driving under sec. 52 of the Revised Motor Vehicle Law, for
having driven an automobile in a ῾fast and reckless manner ... thereby
causing an accident.’ After the accused had pleaded not guilty the case
was dismissed in that court ῾for failure of the Government to prosecute’.
But some time thereafter the city attorney filed an information in the
Court of First Instance of Rizal, charging the same accused with damage
to property thru reckless imprudence. The amount of the damage was
alleged to be ₱249.50. Pleading double jeopardy, the accused filed a
motion, and on appeal by the Government we affirmed the ruling.
Among other things we there said through Mr. Justice Montemayor —
The next question to determine is the relation between the first offense of
violation of the Motor Vehicle Law prosecuted before the Pasay City
Municipal Court and the offense of damage to property thru reckless
imprudence charged in the Rizal Court of First Instance. One of the tests
of double jeopardy is whether or not the second offense charged
necessarily includes or is necessarily included in the offense charged in
the former complaint or information (Rule 113, Sec. 9). Another test is
whether the evidence which proves one would prove the other that is to
say whether the facts alleged in the first charge if proven, would have
been sufficient to support the second charge and vice versa; or whether
one crime is an ingredient of the other. x x x
xxxx
The foregoing language of the Supreme Court also disposes of the
contention of the prosecuting attorney that the charge for slight physical
injuries through reckless imprudence could not have been joined with the
charge for homicide with serious physical injuries through reckless
imprudence in this case, in view of the provisions of Art. 48 of the
Revised Penal Code, as amended. The prosecution’s contention might be
true. But neither was the prosecution obliged to first prosecute the
accused for slight physical injuries through reckless imprudence before
pressing the more serious charge of homicide with serious physical
injuries through reckless imprudence. Having first prosecuted the
defendant for the lesser offense in the Justice of the Peace Court of
Meycauayan, Bulacan, which acquitted the defendant, the prosecuting
attorney is not now in a position to press in this case the more serious
charge of homicide with serious physical injuries through reckless
imprudence which arose out of the same alleged reckless imprudence of
which the defendant have been previously cleared by the inferior court.43
Significantly, the Solicitor General had urged us in Silva to reexamine
Belga (and hence, Diaz) "for the purpose of delimiting or clarifying its
application."44 We declined the invitation, thus:
The State in its appeal claims that the lower court erred in dismissing the
case, on the ground of double jeopardy, upon the basis of the acquittal of
the accused in the JP court for Slight Physical Injuries, thru Reckless
Imprudence. In the same breath said State, thru the Solicitor General,
admits that the facts of the case at bar, fall squarely on the ruling of the
Belga case x x x, upon which the order of dismissal of the lower court
was anchored. The Solicitor General, however, urges a re-examination of
said ruling, upon certain considerations for the purpose of delimiting or
clarifying its application. We find, nevertheless, that further elucidation
or disquisition on the ruling in the Belga case, the facts of which are
analogous or similar to those in the present case, will yield no practical
advantage to the government. On one hand, there is nothing which would
warrant a delimitation or clarification of the applicability of the Belga
case. It was clear. On the other, this Court has reiterated the views
expressed in the Belga case, in the identical case of Yap v. Hon. Lutero,
etc., L-12669, April 30, 1959.45 (Emphasis supplied)
Article 48 Does not Apply to Acts Penalized
Under Article 365 of the Revised Penal Code
The confusion bedeviling the question posed in this petition, to which the
MeTC succumbed, stems from persistent but awkward attempts to
harmonize conceptually incompatible substantive and procedural rules in
criminal law, namely, Article 365 defining and penalizing quasi-offenses
and Article 48 on complexing of crimes, both under the Revised Penal
Code. Article 48 is a procedural device allowing single prosecution of
multiple felonies falling under either of two categories: (1) when a single
act constitutes two or more grave or less grave felonies (thus excluding
from its operation light felonies46); and (2) when an offense is a
necessary means for committing the other. The legislature crafted this
procedural tool to benefit the accused who, in lieu of serving multiple
penalties, will only serve the maximum of the penalty for the most
serious crime.
In contrast, Article 365 is a substantive rule penalizing not an act defined
as a felony but "the mental attitude x x x behind the act, the dangerous
recklessness, lack of care or foresight x x x,"47 a single mental attitude
regardless of the resulting consequences. Thus, Article 365 was crafted
as one quasi-crime resulting in one or more consequences.
Ordinarily, these two provisions will operate smoothly. Article 48 works
to combine in a single prosecution multiple intentional crimes falling
under Titles 1-13, Book II of the Revised Penal Code, when proper;
Article 365 governs the prosecution of imprudent acts and their
consequences. However, the complexities of human interaction can
produce a hybrid quasi-offense not falling under either models – that of a
single criminal negligence resulting in multiple non-crime damages to
persons and property with varying penalties corresponding to light, less
grave or grave offenses. The ensuing prosecutorial dilemma is obvious:
how should such a quasi-crime be prosecuted? Should Article 48’s
framework apply to "complex" the single quasi-offense with its multiple
(non-criminal) consequences (excluding those amounting to light
offenses which will be tried separately)? Or should the prosecution
proceed under a single charge, collectively alleging all the consequences
of the single quasi-crime, to be penalized separately following the
scheme of penalties under Article 365?
Jurisprudence adopts both approaches. Thus, one line of rulings (none of
which involved the issue of double jeopardy) applied Article 48 by
"complexing" one quasi-crime with its multiple consequences48 unless
one consequence amounts to a light felony, in which case charges were
split by grouping, on the one hand, resulting acts amounting to grave or
less grave felonies and filing the charge with the second level courts and,
on the other hand, resulting acts amounting to light felonies and filing
the charge with the first level courts.49 Expectedly, this is the approach
the MeTC impliedly sanctioned (and respondent Ponce invokes), even
though under Republic Act No. 7691,50 the MeTC has now exclusive
original jurisdiction to impose the most serious penalty under Article 365
which is prision correccional in its medium period.
Under this approach, the issue of double jeopardy will not arise if the
"complexing" of acts penalized under Article 365 involves only resulting
acts penalized as grave or less grave felonies because there will be a
single prosecution of all the resulting acts. The issue of double jeopardy
arises if one of the resulting acts is penalized as a light offense and the
other acts are penalized as grave or less grave offenses, in which case
Article 48 is not deemed to apply and the act penalized as a light offense
is tried separately from the resulting acts penalized as grave or less grave
offenses.
The second jurisprudential path nixes Article 48 and sanctions a single
prosecution of all the effects of the quasi-crime collectively alleged in
one charge, regardless of their number or severity,51 penalizing each
consequence separately. Thus, in Angeles v. Jose,52 we interpreted
paragraph three of Article 365, in relation to a charge alleging "reckless
imprudence resulting in damage to property and less serious physical
injuries," as follows:
[T]he third paragraph of said article, x x x reads as follows:
When the execution of the act covered by this article shall have only
resulted in damage to the property of another, the offender shall be
punished by a fine ranging from an amount equal to the value of said
damage to three times such value, but which shall in no case be less than
25 pesos.
The above-quoted provision simply means that if there is only damage to
property the amount fixed therein shall be imposed, but if there are also
physical injuries there should be an additional penalty for the latter. The
information cannot be split into two; one for the physical injuries, and
another for the damage to property, x x x.53 (Emphasis supplied)
By "additional penalty," the Court meant, logically, the penalty scheme
under Article 365.
Evidently, these approaches, while parallel, are irreconcilable. Coherence
in this field demands choosing one framework over the other. Either (1)
we allow the "complexing" of a single quasi-crime by breaking its
resulting acts into separate offenses (except for light felonies), thus re-
conceptualize a quasi-crime, abandon its present framing under Article
365, discard its conception under the Quizon and Diaz lines of cases, and
treat the multiple consequences of a quasi-crime as separate intentional
felonies defined under Titles 1-13, Book II under the penal code; or (2)
we forbid the application of Article 48 in the prosecution and sentencing
of quasi-crimes, require single prosecution of all the resulting acts
regardless of their number and severity, separately penalize each as
provided in Article 365, and thus maintain the distinct concept of quasi-
crimes as crafted under Article 365, articulated in Quizon and applied to
double jeopardy adjudication in the Diaz line of cases.1avvphi1
A becoming regard of this Court’s place in our scheme of government
denying it the power to make laws constrains us to keep inviolate the
conceptual distinction between quasi-crimes and intentional felonies
under our penal code. Article 48 is incongruent to the notion of quasi-
crimes under Article 365. It is conceptually impossible for a quasi-
offense to stand for (1) a single act constituting two or more grave or less
grave felonies; or (2) an offense which is a necessary means for
committing another. This is why, way back in 1968 in Buan, we rejected
the Solicitor General’s argument that double jeopardy does not bar a
second prosecution for slight physical injuries through reckless
imprudence allegedly because the charge for that offense could not be
joined with the other charge for serious physical injuries through reckless
imprudence following Article 48 of the Revised Penal Code:
The Solicitor General stresses in his brief that the charge for slight
physical injuries through reckless imprudence could not be joined with
the accusation for serious physical injuries through reckless imprudence,
because Article 48 of the Revised Penal Code allows only the
complexing of grave or less grave felonies. This same argument was
considered and rejected by this Court in the case of People vs. [Silva] x x
x:
[T]he prosecution’s contention might be true. But neither was the
prosecution obliged to first prosecute the accused for slight physical
injuries through reckless imprudence before pressing the more serious
charge of homicide with serious physical injuries through reckless
imprudence. Having first prosecuted the defendant for the lesser offense
in the Justice of the Peace Court of Meycauayan, Bulacan, which
acquitted the defendant, the prosecuting attorney is not now in a position
to press in this case the more serious charge of homicide with serious
physical injuries through reckless imprudence which arose out of the
same alleged reckless imprudence of which the defendant has been
previously cleared by the inferior court.
[W]e must perforce rule that the exoneration of this appellant x x x by
the Justice of the Peace x x x of the charge of slight physical injuries
through reckless imprudence, prevents his being prosecuted for serious
physical injuries through reckless imprudence in the Court of First
Instance of the province, where both charges are derived from the
consequences of one and the same vehicular accident, because the
second accusation places the appellant in second jeopardy for the same
offense.54 (Emphasis supplied)
Indeed, this is a constitutionally compelled choice. By prohibiting the
splitting of charges under Article 365, irrespective of the number and
severity of the resulting acts, rampant occasions of constitutionally
impermissible second prosecutions are avoided, not to mention that
scarce state resources are conserved and diverted to proper use.
Hence, we hold that prosecutions under Article 365 should proceed from
a single charge regardless of the number or severity of the consequences.
In imposing penalties, the judge will do no more than apply the penalties
under Article 365 for each consequence alleged and proven. In short,
there shall be no splitting of charges under Article 365, and only one
information shall be filed in the same first level court.55
Our ruling today secures for the accused facing an Article 365 charge a
stronger and simpler protection of their constitutional right under the
Double Jeopardy Clause. True, they are thereby denied the beneficent
effect of the favorable sentencing formula under Article 48, but any
disadvantage thus caused is more than compensated by the certainty of
non-prosecution for quasi-crime effects qualifying as "light offenses" (or,
as here, for the more serious consequence prosecuted belatedly). If it is
so minded, Congress can re-craft Article 365 by extending to quasi-
crimes the sentencing formula of Article 48 so that only the most severe
penalty shall be imposed under a single prosecution of all resulting acts,
whether penalized as grave, less grave or light offenses. This will still
keep intact the distinct concept of quasi-offenses. Meanwhile, the lenient
schedule of penalties under Article 365, befitting crimes occupying a
lower rung of culpability, should cushion the effect of this ruling.
WHEREFORE, we GRANT the petition. We REVERSE the Orders
dated 2 February 2006 and 2 May 2006 of the Regional Trial Court of
Pasig City, Branch 157. We DISMISS the Information in Criminal Case
No. 82366 against petitioner Jason Ivler y Aguilar pending with the
Metropolitan Trial Court of Pasig City, Branch 71 on the ground of
double jeopardy.
Let a copy of this ruling be served on the President of the Senate and the
Speaker of the House of Representatives.
SO ORDERED.
ANTONIO T. CARPIO
Associate Justice
WE CONCUR:
CONCHITA CARPIO MORALES
Associate Justice
DIOSDADO M. PERALTA ROBERTO A. ABAD
Associate Justice Associate Justice
JOSE C. MENDOZA
Associate Justice
ATTESTATION
I attest that the conclusions in the above Decision had been reached in
consultation before the case was assigned to the writer of the opinion of
the Court’s Division.
ANTONIO T. CARPIO
Associate Justice
Chairperson
CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution, and the Division
Chairperson’s Attestation, I certify that the conclusions in the above
Decision had been reached in consultation before the case was assigned
to the writer of the opinion of the Court’s Division.
RENATO C. CORONA
Chief Justice
Footnotes
* Designated additional member per Raffle dated 22 September
2010.
1
Under Rule 45 of the 1997 Rules of Civil Procedure.
2
Dated 2 February 2006 and 2 May 2006.
3
In a Resolution dated 4 October 2004.
4 15
In an Order dated 17 May 2005 (Records, p. 142).
5 16
In a Resolution dated 24 May 2005.
6
Denied in an Order dated 2 May 2006.
7 17
Rollo, pp. 30-33.
8 18
The provision states: "Dismissal of appeal for abandonment or
failure to prosecute. – x x x x
The Court of Appeals may also, upon motion of the
appellee or motu proprio, dismiss the appeal if the
appellant escapes from prison or confinement, jumps bail
or flees to a foreign country during the pendency of the
appeal."
9 20
329 Phil. 339 (1996).
10
Id. at 350.
11
The provision states: "Forfeiture of bail. – When the presence
of the accused is required by the court or these Rules, his
bondsmen shall be notified to produce him before the court on a
given date and time. If the accused fails to appear in person as
required, his bail shall be declared forfeited and the bondsmen
given thirty (30) days within which to produce their principal and
to show why no judgment should be rendered against them for
the amount of their bail. Within the said period, the bondsmen
must:
(a) produce the body of their principal or give the reason
for his non-production; and
(b) explain why the accused did not appear before the
court when first required to do so.
Failing in these two requisites, a judgment shall be
rendered against the bondsmen, jointly and severally, for
the amount of the bail. The court shall not reduce or
otherwise mitigate the liability of the bondsmen, unless
the accused has been surrendered or is acquitted."
12
Rollo, p. 40.
13
Section 21, Article III, 1987 Constitution.
14
Section 7, Rule 117 Revised Rules of Criminal Procedure. The
right has, of course, broader scope to cover not only prior guilty
pleas but also acquittals and unconsented dismissals to bar
prosecutions for the same, lesser or graver offenses covered in the
initial proceedings (id.)
Rollo, p. 97.
Quizon v. Justice of the Peace of Pampanga, 97 Phil. 342, 345
(1955) (emphasis in the original).
Id.
Id. at 345-346.
19
We observed in Quizon: "Much of the confusion has arisen
from the common use of such descriptive phrases as ‘homicide
through reckless imprudence,’ and the like; when the strict
technical offense is, more accurately, ‘reckless imprudence
resulting in homicide’; or ‘simple imprudence causing damages
to property.’’’ (Id. at 345; emphasis supplied)
In People v. Buan, 131 Phil. 498, 500-502 (1968), which
applied Quizon’s logic, the Court canvassed relevant
jurisprudence, local and Spanish:
[T]he quasi-offense of criminal negligence under article
365 of the Revised Penal Code lies in the execution of an
imprudent or negligent act that, if intentionally done,
would be punishable as a felony. The law penalizes thus
the negligent or careless act, not the result thereof. The
gravity of the consequence is only taken into account to
determine the penalty, it does not qualify the substance of
the offense. And, as the careless act is single, whether the
injurious result should affect one person or several
persons, the offense (criminal negligence) remains one
and the same, and cannot be split into different crimes and
prosecutions. This has been the constant ruling of the
Spanish Supreme Court, and is also that of this Court in
its most recent decisions on the matter.
Thus, in People vs. Silva, L-15974, January 30, 1962,
where as a result of the same vehicular accident one man
died, two persons were seriously injured while another
three suffered only slight physical injuries, we ruled that
the acquittal on a charge of slight physical injuries
through reckless imprudence, was a bar to another
prosecution for homicide through reckless imprudence. In
People vs. Diaz, L-6518, March 30, 1954, the ruling was
that the dismissal by the Municipal Court of a charge of
reckless driving barred a second information of damage to
property through reckless imprudence based on the same
negligent act of the accused. In People vs, Belga, 100
Phil. 996, dismissal of an information for physical injuries
through needless imprudence as a result of a collision
between two automobiles was declared, to block two
other prosecutions, one for damage to property through
reckless imprudence and another for multiple physical
injuries arising from the same collision. The same
doctrine was reasserted in Yap vs. Lutero, et al., L-12669,
April 30, 1959. In none of the cases cited did the Supreme
Court regard as material that the various offenses charged
for the same occurrence were triable in Courts of differing
category, or that the complainants were not the
individuals.
As for the Spanish jurisprudence, Cuello Calon, in his
Derecho Penal (12th Ed.), Vol. I, p. 439, has this to say:
Aun cuando de un solo hecho imprudente se originen
males diversos, como el hecho culposo es uno solo, existe
un solo delito de imprudencia. Esta es jurisprudencia
constante del Tribunal Supremo. De acuerdo con esta
doctrina el automovilista imprudente que atropella y
causa lesiones a dos personas y ademas daños, no
respondera de dos delitos de lesiones y uno de daños por
imprudencia, sino de un solo delito culposo.
The said author cites in support of the text the following
decisions of the Supreme Court of Spain (footnotes 2 and
3).
xxxx
Si con el hecho imprudente se causa la muerte de una
persona y ademas se ocasionan daños, existe un solo
hecho punible, pues uno solo fue el acto, aun cuando
deben apreciarse dos enorden a la responsabilidad civil,
14 diciembre 1931 si a consecuencia de un solo acto
imprudente se produjeron tres delitos, dos de homicidio y
uno de daños, como todos son consecuencia de un solo
acto culposo, no cabe penarlos por separado, 2 abril 1932.
(Emphasis supplied)
21
E.g. Samson v. Court of Appeals, 103 Phil. 277 (1958); People
v. Cano, 123 Phil. 1086 (1966); Pabulario v. Palarca, 129 Phil. 1
(1967); Corpus v. Paje, 139 Phil. 429 (1969).
22
67 Phil. 529 (1939) (affirming a conviction for malicious
mischief upon a charge for "damage [to property] through
reckless imprudence"). A logical consequence of a Fallerian
conceptualization of quasi-crimes is the sanctioning of the split
prosecution of the consequences of a single quasi offense such as
those allowed in El Pueblo de Filipinas v. Estipona, 70 Phil. 513
(1940) (finding the separate prosecutions of damage to property
and multiple physical injuries arising from the same recklessness
in the accused’s operation of a motor vehicle not violative of the
Double Jeopardy Clause).
23
67 Phil. 529 (1939).
24
E.g. Lontok v. Gorgonio, 178 Phil. 525, 528 (1979) (holding
that the "less grave offense" of "damage to property through
reckless imprudence" (for ₱2,340) cannot be complexed under
Article 48 of the penal code with a prescribed " slight offense" of
"lesiones leves through reckless imprudence," citing Faller);
Arcaya v. Teleron, 156 Phil. 354, 362 (1974) (noting, by way of
dicta in a ruling denying relief to an appeal against the splitting of
two charges for "less serious physical injuries and damage to
property amounting to ₱10,000 though reckless imprudence" and
"slight physical injuries though reckless imprudence," that the
Quizon doctrine, as cited in Corpus v. Paje, 139 Phil. 429 (1969)

and People v. Buan, 131 Phil. 498 (1968), "may not yet be settled
in view of the contrary dictum" in Faller).
25
94 Phil. 715 (1954).
26
100 Phil. 996 (1957) (barring subsequent prosecutions for
physical injuries thru reckless imprudence and damage to
property thru reckless imprudence following an acquittal for
"reckless imprudence with physical injury").
27
105 Phil. 1307 (1959) (Unrep.) (barring subsequent
prosecution for "serious physical injuries" following an acquittal
for "reckless driving").
28
107 Phil. 737 (1960) (barring subsequent prosecution for
"damage to property thru reckless imprudence" following a
conviction for "multiple slight and serious physical injuries thru
reckless imprudence.")
29
No. L-15974, 30 January 1962, 4 SCRA 95 (barring
subsequent prosecution for "homicide thru reckless imprudence"
following an acquittal for "slight physical injuries thru reckless
imprudence").
30
123 Phil. 48 (1966) (barring subsequent prosecution for
"damage to property thru reckless imprudence" following an
acquittal for two counts of "slight physical injuries thru reckless
imprudence.")
31
131 Phil. 498 (1968) (barring subsequent prosecution for
"serious physical injuries and damage to property thru reckless
imprudence" following an acquittal for "slight physical injuries
thru reckless imprudence").
32
200 Phil. 486 (1982) (reversing a subsequent conviction for
"damage to property thru reckless imprudence" following a
conviction for "slight and serious physical injuries thru reckless
imprudence").
33
206 Phil. 555 (1983) (barring subsequent prosecution for
"homicide thru reckless imprudence" following a conviction for
"serious physical injuries thru reckless imprudence").
34
131 Phil. 498, 500 (1968).
35
Id.
36
70 Phil. 513 (1940), also cited in other sources as People v.
Estipona.
37
Supra note 32.
38
Supra note 31.
39
Buerano v. Court of Appeals, 200 Phil. 486, 491 (1982).
40
Id. at 491-492.
41
No. L-15974, 30 January 1962, 4 SCRA 95.
42
Supra note 26.
43
No. L-15974, 30 January 1962, 4 SCRA 95, 97-100 (internal
citations omitted).
44
Id. at 100.
45
Id.
46
Defined under Article 9, paragraph 3 of the Revised Penal
Code, as amended, thus: "Light felonies are those infractions of
law for the commission of which a penalty of arresto menor or a
fine not exceeding 200 pesos or both is provided."
47
Quizon v. Justice of the Peace of Pampanga, 97 Phil. 342, 345
(1955).
48
E.g. People v. Lara, 75 Phil. 786 (1946) (involving "homicidio
por imprudencia temeraria" with several victims [or, roughly,
"multiple homicide thru reckless imprudence"]); People v. Agito,
103 Phil. 526 (1958) (involving "triple homicide and serious
physical injuries through reckless imprudence").
49
E.g. People v. Turla, 50 Phil. 1001 (1927) (sustaining a
dismissal on demurrer of a criminal case for the prosecutor’s
failure to amend a charge for "damage to property and of lesions
leves [slight physical injuries] through negligence and
imprudence" to remove the charge for the slight offense, under
Article 89 of the penal code, the precursor of Article 48); Arcaya
v. Teleron, 156 Phil. 354 (1974) (finding no grave abuse of
discretion in the filing of separate charges for "less serious
physical injuries and damage to property amounting to ₱10,000
though reckless imprudence" and "slight physical injuries though
reckless imprudence" arising from the same facts); Lontok v.
Gorgonio, 178 Phil. 525 (1979) (granting a petition to split a
single charge for "reckless imprudence resulting in damage to
property and multiple [slight] physical injuries" by limiting the
petitioner’s trial to "reckless imprudence resulting in damage to
property"). See also Reodica v. Court of Appeals, 354 Phil. 90
(1998) (holding that the "less grave felony of reckless
imprudence resulting in damage to property" (for ₱8,542) cannot
be complexed under Article 48 of the Revised Penal Code with
"the light felony of reckless imprudence resulting in physical
injuries," citing Lontok); People v. De Los Santos, 407 Phil. 724
(2001) (applying Article 48 of the penal code to hold the accused
liable for the "complex crime of reckless imprudence resulting in
multiple homicide with serious physical injuries and less serious
physical injuries" (upon an information charging "multiple
murder, multiple frustrated murder and multiple attempted
murder.") In a dicta, the decision stated that separate informations
should have been filed for the slight physical injuries the victims
sustained which cannot be complexed with the more serious
crimes under Article 48.)
50
Section 2 of RA 7691 provides: "Section 2. Section 32 of
[Batas Pambansa Blg. 129] is hereby amended to read as follows:
‘Sec. 32. Jurisdiction of Metropolitan Trial Courts,
Municipal Trial Courts and Municipal Circuit Trial
Courts in Criminal Cases. — Except in cases falling
within the exclusive original jurisdiction of Regional Trial
Courts and of the Sandiganbayan, the Metropolitan Trial
Courts, Municipal Trial Courts, and Municipal Circuit
Trial Courts shall exercise:
xxxx
(2) Exclusive original jurisdiction over all offenses
punishable with imprisonment not exceeding six (6) years
irrespective of the amount of fine, and regardless of other
imposable accessory or other penalties, including the civil
liability arising from such offenses or predicated thereon,
irrespective of kind, nature, value or amount thereof:
Provided, however, That in offenses involving damage to
property through criminal negligence, they shall have
exclusive original jurisdiction thereof.’" (Underlining
supplied)
51
E.g. Angeles v. Jose, 96 Phil. 151 (1954) (reversing the ruling
of the then Court of First Instance of Manila which dismissed for
lack of jurisdiction a complaint for "damage to property in the
sum of ₱654.22, and with less serious physical injuries through
reckless negligence," holding improper the splitting of the
charge). We relied on Angeles for our ruling in People v.
Villanueva, 111 Phil. 897 (1962) resolving similar jurisdictional
issue and People v. Cano, 123 Phil. 1086, 1090 (1966) (reversing
a dismissal order which found the complexing of "damage to
property with multiple [slight] physical injuries through reckless
imprudence" improper, holding that the Information did not and
could not have complexed the effect of a single quasi-offense per
Quizon. The Court noted that "it is merely alleged in the
information that, thru reckless negligence of the defendant, the
bus driven by him hit another bus causing upon some of its
passengers serious physical injuries, upon others less serious
physical injuries and upon still others slight physical injuries, in
addition to damage to property").
52
Angeles v. Jose, 96 Phil. 151, 152 (1954).
53
Thus, we were careful to label the crime in question as "what
may be called a complex crime of physical injuries and damage
to property" (id., emphasis supplied), because our prescription to
impose "additional penalty" for the second consequence of less
serious physical injuries, defies the sentencing formula under
Article 48 requiring imposition of "the penalty for the most
serious crime x x x the same to be applied in its maximum
period."
54
Supra note 31 at 502 (internal citation omitted). This also
explains why in People v. Cano we described as "not altogether
accurate" a trial court and a litigant’s assumption that a charge for
"damage to property with multiple [slight] physical injuries
through reckless imprudence" involved two crimes corresponding
to the two effects of the single quasi-crime albeit complexed as a
single charge:
[A]ppellee and the lower court have seemingly assumed
that said information thereby charges two offenses,
namely (1) slight physical injuries thru reckless
imprudence; and (2) damage to property, and serious and
less serious physical injuries, thru reckless negligence —
which are sought to be complexed. This assumption is, in
turn, apparently premised upon the predicate that the
effect or consequence of defendants negligence, not the
negligence itself, is the principal or vital factor in said
offenses. Such predicate is not altogether accurate.
As early as July 28, 1955 this Court, speaking thru Mr.
Justice J.B.L. Reyes, had the occasion to state, in Quizon
vs. Justice of the Peace of Bacolor, Pampanga x x x, that:
 The proposition (inferred from Art. 3 of the Revised Penal
Code) that "reckless imprudence is not a crime in itself
but simply a way of committing it and merely determines
a lower degree of criminal liability" is too broad to
deserve unqualified assent. There are crimes that by their
structure can not be committed through imprudence:
murder, treason, robbery, malicious mischief, etc. In truth,
criminal negligence in our Revised Penal Code is treated
as a mere quasi-offense, and dealt separately from willful
offenses. It is not a mere question of classification or
terminology. In intentional crimes, the act itself is
punished; in negligence or imprudence, what is
principally penalized is the mental attitude or condition
behind the act, the dangerous recklessness, lack of care or
foresight, the "imprudencia punible." Much of the
confusion has arisen from the common use of such
descriptive phrases as "homicide through reckless
imprudence", and the like; when the strict technical
offense is more accurately, "reckless imprudence resulting
in homicide", or "simple imprudence causing damages to
property." (People v. Cano, 123 Phil. 1086,1090 (1966),
(Emphasis supplied), reiterated in Pabulario v. Palarca,
129 Phil. 1 (1967) (reversing a lower court which quashed
a charge alleging reckless imprudence resulting in damage
to property and multiple slight physical injuries).
55
See Section 32(2), Batas Pambansa Blg. 129, as amended by
Republic Act No. 7691.
G.R. No. L-25366 March 29, 1968
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
JOSE BUAN, accused-appellant.
Office of the Solicitor General for plaintiff-appellee.
Felipe C. Magat and Amado D. Dyoco for accused-appellant.
REYES, J.B.L., Actg. C.J.:
Direct appeal by the accused from an order of the Court of First
Instance of Bulacan, in its Criminal Case No. 5243 (for serious physical
injuries and damage to property through reckless imprudence),
overruling a motion to quash on the ground of double jeopardy.
Stripped to essentials, the case arose in this wise:
The accused was driving a passenger bus of the La Mallorca
Company on July 23, 1962, along the MacArthur Highway in the
municipality of Guiguinto, Bulacan. Allegedly because of his negligence
— and recklessness, the vehicle driven by him struck and collided with
the passenger jeep of Sergio Lumidao, damaging said jeep and causing it
to turn turtle, and injuring its passengers. Six of the latter suffered slight
physical injuries requiring medical attendance for 5 to 9 days: three other
riders came out with serious bodily injuries that needed medical attention
for 30 to 45 days; while the jeep was damaged to the extent of
P1,395.00.
A charge was filed against the accused-appellant, one for slight
physical injuries through reckless imprudence, in the Justice of the Peace
Court of Guiguinto, for which he was tried and acquitted on December
16, 1963. Prior to this acquittal, however, the Provincial Fiscal of
Bulacan filed in the Court of First Instance the information in the case
now before us, for serious physical injuries, and damage to property
through reckless imprudence. Admittedly, both charges referred to the
same highway collision.
When the accused was arraigned in the Court of First Instance, his
counsel moved to quash the charges on the ground that he had already
been acquitted of the same offense by the Justice of the Peace Court. The
prosecution opposed the motion and the Court denied the motion quash.
Unable to secure reconsideration, the accused appealed to this Court.
Sole issue before us, therefore, is whether the second case placed
the appellant twice in jeopardy for the same offense, and is barred by the
previous acquittal.
We agree with the appellant that the Court below erred in not
dismissing the information for "serious physical injuries and damage to
property through reckless imprudence," in view of the appellant's
previous acquittal by the Justice of the Peace Court of Guiguinto,
Bulacan, for the same imprudence.
Reason and precedent both coincide in that once convicted or
acquitted of a specific act of reckless imprudence, the accused may not
be prosecuted again for that same act. For the essence of the quasi
offense of criminal negligence under article 365 of the Revised Penal
Code lies in the execution of an imprudent or negligent act that, if
intentionally done, would be punishable as a felony. The law penalizes
thus the negligent or careless act, not the result thereof. The gravity of
the consequence is only taken into account to determine the penalty, it
does not qualify the substance of the offense. And, as the careless act is
single, whether the injurious result should affect one person or several
persons, the offense (criminal negligence) remains one and the same, and
can not be split into different crimes and prosecutions. This has been the
constant ruling of the Spanish Supreme Court, and is also that of this
Court in its most recent decisions on the matter.
Thus, in People vs. Silva, L-15974, January 30, 1962, where as the
result of the same vehicular accident one man died, two persons were
seriously injured while another three suffered only slight physical
injuries, we ruled that the acquittal on a charge of slight physical injuries
through reckless imprudence, was a bar to another prosecution for
homicide through reckless imprudence. In People vs. Diaz, L-6518,
March 30, 1954, the ruling was that the dismissal by the Municipal Court
of a charge of reckless driving barred a second information of damage to
property through reckless imprudence based on the same negligent act of
the accused. In People vs, Belga, 100 Phil. 996, dismissal of an
information for physical injuries through needless imprudence as a result
of a collision between two automobiles was declared, to block two other
prosecutions, one for damage to property through reckless imprudence
and another for multiple physical injuries arising from the same
collision. The same doctrine was reasserted in Yap vs. Lutero, et al., L-
12669, April 30, 1959. In none of the cases cited did the Supreme Court
regard as material that the various offenses charged for the same
occurrence were triable in Courts of differing category, or that the
complainants were not the individuals.
 As for the Spanish jurisprudence, Cuello Calon, in his Derecho In view of the foregoing, we must perforce rule that the
Penal (12th Ed.), Vol. I, p. 439, has this to say:1äwphï1.ñët exoneration of this appellant, Jose Buan, by the Justice of the Peace (now
Aun cuando de un solo hecho imprudente se originen Municipal) Court of Guiguinto, Bulacan, of the charge of slight physical
males diversos, como el hecho culposo es uno solo, existe un solo injuries through reckless imprudence, prevents his being prosecuted for
delito de imprudencia. Esta es jurisprudencia constante del serious physical injuries through reckless imprudence in the Court of
Tribunal Supremo. De acuerdo con esta doctrinael automovilista First Instance of the province, where both charges are derived from the
imprudente que atropella y causa lesiones a dos personas y consequences of one and the same vehicular accident, because the
ademas daños, no respondera de dos delitos de lesiones y uno de second accusation places the appellant in second jeopardy for the same
daños por imprudencia, sino de un solo delito culposo. offense.
The said author cites in support of the text the following decisions WHEREFORE, the order appealed from is reversed, and the Court
of the Supreme Court of Spain (footnotes 2 and 3). of First Instance of Bulacan is directed to quash and dismiss the charge
8 octubre 1887, 18 octubre 1927. in its Criminal Case No. 5243. No costs. So ordered.
Si con el hecho imprudente se causa la muerte de una Dizon, Makalintal, Bengzon, J.P., Zaldivar, Sanchez, Angeles and
persona y ademas se ocasionan daños, existe un solo hecho Fernando, JJ., concur.
punible, pues uno solo fue el acto, aun cuando deben apreciarse Castro, J., took no part.
dos enorden a la responsabilidad civil, 14 diciembre 1931 si a
consecuencia de un solo acto imprudente se produjeron tres
delitos, dos de homicidio y uno de daños, como todos son
consecuencia de un solo acto culposo, no cabe penarlos por
separado, 2 abril 1932.
The Solicitor General stresses in his brief that the charge for slight
physical injuries through reckless imprudence could not be joined with
the accusation for serious physical injuries through reckless imprudence,
because Article 48 of the Revised Penal Code allows only the
complexing of grave or less grave felonies. This same argument was
considered and rejected by this Court in the case of People vs. Diaz,
supra:
... The prosecution's contention might be true. But neither
was the prosecution obliged to first prosecute the accused for
slight physical injuries through reckless imprudence before
pressing the more serious charge of homicide with serious
physical injuries through reckless imprudence. Having first
prosecuted the defendant for the lesser offense in the Justice of
the Peace Court of Meycauayan, Bulacan, which acquitted the
defendant, the prosecuting attorney is not now in a position to
press in this case the more serious charge of homicide with
serious physical injuries through reckless imprudence which
arose out of the same alleged reckless imprudence of which the
defendant has been previously cleared by the inferior court.
G.R. No. 148560 November 19, 2001
JOSEPH EJERCITO ESTRADA, petitioner,
vs.
SANDIGANBAYAN (Third Division) and PEOPLE OF THE
PHILIPPINES, respondents.
DECISION
BELLOSILLO, J.:
JOHN STUART MILL, in his essay On Liberty, unleashes the full fury
of his pen in defense of the rights of the individual from the vast powers
of the State and the inroads of societal pressure. But even as he draws a
sacrosanct line demarcating the limits on individuality beyond which the
State cannot tread - asserting that "individual spontaneity" must be
allowed to flourish with very little regard to social interference - he
veritably acknowledges that the exercise of rights and liberties is imbued
with a civic obligation, which society is justified in enforcing at all cost,
against those who would endeavor to withhold fulfillment. Thus he says
- Section 1. x x x x (d) "Ill-gotten wealth" means any asset, property,
The sole end for which mankind is warranted, individually or
collectively, in interfering with the liberty of action of any of their
number, is self-protection. The only purpose for which power can be
rightfully exercised over any member of a civilized community, against
his will, is to prevent harm to others.
Parallel to individual liberty is the natural and illimitable right of the
State to self-preservation. With the end of maintaining the integrity and
cohesiveness of the body politic, it behooves the State to formulate a
system of laws that would compel obeisance to its collective wisdom and
inflict punishment for non-observance.
The movement from Mill's individual liberalism to unsystematic
collectivism wrought changes in the social order, carrying with it a new
formulation of fundamental rights and duties more attuned to the
imperatives of contemporary socio-political ideologies. In the process,
the web of rights and State impositions became tangled and obscured,
enmeshed in threads of multiple shades and colors, the skein irregular
and broken. Antagonism, often outright collision, between the law as the
expression of the will of the State, and the zealous attempts by its
members to preserve their individuality and dignity, inevitably followed.
It is when individual rights are pitted against State authority that judicial
conscience is put to its severest test.
Petitioner Joseph Ejercito Estrada, the highest-ranking official to be
prosecuted under RA 7080 (An Act Defining and Penalizing the Crime of
Plunder),1 as amended by RA 7659,2 wishes to impress upon us that the
assailed law is so defectively fashioned that it crosses that thin but
distinct line which divides the valid from the constitutionally infirm. He
therefore makes a stringent call for this Court to subject the Plunder Law
to the crucible of constitutionality mainly because, according to him, (a)
it suffers from the vice of vagueness; (b) it dispenses with the
"reasonable doubt" standard in criminal prosecutions; and, (c) it
abolishes the element of mens rea in crimes already punishable
under The Revised Penal Code, all of which are purportedly clear
violations of the fundamental rights of the accused to due process and to
be informed of the nature and cause of the accusation against him.
Specifically, the provisions of the Plunder Law claimed by petitioner to
have transgressed constitutional boundaries are Secs. 1, par. (d), 2 and 4
which are reproduced hereunder:
business, enterprise or material possession of any person within the
purview of Section Two (2) hereof, acquired by him directly or indirectly
through dummies, nominees, agents, subordinates and/or business
associates by any combination or series of the following means or
similar schemes:
(1) Through misappropriation, conversion, misuse, or
malversation of public funds or raids on the public treasury;
(2) By receiving, directly or indirectly, any commission, gift,
share, percentage, kickbacks or any other form of pecuniary
benefit from any person and/or entity in connection with any
government contract or project or by reason of the office or
position of the public office concerned;
(3) By the illegal or fraudulent conveyance or disposition of
assets belonging to the National Government or any of its
subdivisions, agencies or instrumentalities, or government owned
or controlled corporations and their subsidiaries;
(4) By obtaining, receiving or accepting directly or indirectly any
shares of stock, equity or any other form of interest or
participation including the promise of future employment in any
business enterprise or undertaking;
(5) By establishing agricultural, industrial or commercial
monopolies or other combinations and/or implementation of
 decrees and orders intended to benefit particular persons or
special interests; or
(6) By taking advantage of official position, authority,
relationship, connection or influence to unjustly enrich himself or
themselves at the expense and to the damage and prejudice of the
Filipino people and the Republic of the Philippines.
Section 2. Definition of the Crime of Plunder, Penalties. - Any public
officer who, by himself or in connivance with members of his family,
relatives by affinity or consanguinity, business associates, subordinates
or other persons, amasses, accumulates or acquires ill-gotten wealth
through a combination or series of overt or criminal acts as described
in Section 1 (d) hereof, in the aggregate amount or total value of at least
fifty million pesos (P50,000,000.00) shall be guilty of the crime of
plunder and shall be punished by reclusion perpetua to death. Any
person who participated with the said public officer in the commission of
an offense contributing to the crime of plunder shall likewise be
punished for such offense. In the imposition of penalties, the degree of
participation and the attendance of mitigating and extenuating
circumstances as provided by the Revised Penal Code shall be
considered by the court. The court shall declare any and all ill-gotten
wealth and their interests and other incomes and assets including the
properties and shares of stocks derived from the deposit or investment
thereof forfeited in favor of the State (underscoring supplied).
Section 4. Rule of Evidence. - For purposes of establishing the crime of
plunder, it shall not be necessary to prove each and every criminal act
done by the accused in furtherance of the scheme or conspiracy to
amass, accumulate or acquire ill-gotten wealth, it being sufficient to
establish beyond reasonable doubt a pattern of overt or criminal acts
indicative of the overall unlawful scheme or conspiracy (underscoring
supplied).
On 4 April 2001 the Office of the Ombudsman filed before the
Sandiganbayan eight (8) separate Informations, docketed as: (a) Crim.
Case No. 26558, for violation of RA 7080, as amended by RA 7659; (b)
Crim. Cases Nos. 26559 to 26562, inclusive, for violation of Secs. 3, par.
(a), 3, par. (a), 3, par. (e) and 3, par. (e), of RA 3019 (Anti-Graft and
Corrupt Practices Act), respectively; (c) Crim. Case No. 26563, for
violation of Sec. 7, par. (d), of RA 6713 (The Code of Conduct and
Ethical Standards for Public Officials and Employees); (d) Crim. Case
No. 26564, for Perjury (Art. 183 of The Revised Penal Code); and, (e)
Crim. Case No. 26565, for Illegal Use Of An Alias (CA No. 142, as
amended by RA 6085).
On 11 April 2001 petitioner filed an Omnibus Motion for the remand of
the case to the Ombudsman for preliminary investigation with respect to
specification "d" of the charges in the Information in Crim. Case No.
26558; and, for reconsideration/reinvestigation of the offenses under
specifications "a," "b," and "c" to give the accused an opportunity to file
counter-affidavits and other documents necessary to prove lack of
probable cause. Noticeably, the grounds raised were only lack of
preliminary investigation, reconsideration/reinvestigation of offenses,
and opportunity to prove lack of probable cause. The purported
ambiguity of the charges and the vagueness of the law under which they
are charged were never raised in that Omnibus Motion thus indicating the
explicitness and comprehensibility of the Plunder Law.
On 25 April 2001 the Sandiganbayan, Third Division, issued a
Resolution in Crim. Case No. 26558 finding that "a probable cause for
the offense of PLUNDER exists to justify the issuance of warrants for
the arrest of the accused." On 25 June 2001 petitioner's motion for
reconsideration was denied by the Sandiganbayan.
On 14 June 2001 petitioner moved to quash the Information in Crim.
Case No. 26558 on the ground that the facts alleged therein did not
constitute an indictable offense since the law on which it was based was
unconstitutional for vagueness, and that the Amended Information for
Plunder charged more than one (1) offense. On 21 June 2001 the
Government filed its Opposition to the Motion to Quash, and five (5)
days later or on 26 June 2001 petitioner submitted his Reply to the
Opposition. On 9 July 2001 the Sandiganbayan denied
petitioner's Motion to Quash.
As concisely delineated by this Court during the oral arguments on 18
September 2001, the issues for resolution in the instant petition for
certiorari are: (a) The Plunder Law is unconstitutional for being vague;
(b) The Plunder Law requires less evidence for proving the predicate
crimes of plunder and therefore violates the rights of the accused to due
process; and, (c) Whether Plunder as defined in RA 7080 is a malum
prohibitum, and if so, whether it is within the power of Congress to so
classify it.
Preliminarily, the whole gamut of legal concepts pertaining to the
validity of legislation is predicated on the basic principle that a
legislative measure is presumed to be in harmony with the
Constitution.3 Courts invariably train their sights on this fundamental
rule whenever a legislative act is under a constitutional attack, for it is
the postulate of constitutional adjudication. This strong predilection for
constitutionality takes its bearings on the idea that it is forbidden for one
branch of the government to encroach upon the duties and powers of
another. Thus it has been said that the presumption is based on the
deference the judicial branch accords to its coordinate branch - the
legislature.
If there is any reasonable basis upon which the legislation may firmly
rest, the courts must assume that the legislature is ever conscious of the
borders and edges of its plenary powers, and has passed the law with full
knowledge of the facts and for the purpose of promoting what is right
and advancing the welfare of the majority. Hence in determining whether
the acts of the legislature are in tune with the fundamental law, courts
should proceed with judicial restraint and act with caution and
forbearance. Every intendment of the law must be adjudged by the courts
in favor of its constitutionality, invalidity being a measure of last resort.
In construing therefore the provisions of a statute, courts must first
ascertain whether an interpretation is fairly possible to sidestep the
question of constitutionality.
In La Union Credit Cooperative, Inc. v. Yaranon4 we held that as long as
there is some basis for the decision of the court, the constitutionality of
the challenged law will not be touched and the case will be decided on
other available grounds. Yet the force of the presumption is not sufficient
to catapult a fundamentally deficient law into the safe environs of
constitutionality. Of course, where the law clearly and palpably
transgresses the hallowed domain of the organic law, it must be struck
down on sight lest the positive commands of the fundamental law be
unduly eroded.
Verily, the onerous task of rebutting the presumption weighs heavily on
the party challenging the validity of the statute. He must demonstrate
beyond any tinge of doubt that there is indeed an infringement of the
constitution, for absent such a showing, there can be no finding of
unconstitutionality. A doubt, even if well-founded, will hardly suffice.
As tersely put by Justice Malcolm, "To doubt is to sustain."5 And
petitioner has miserably failed in the instant case to discharge his burden
and overcome the presumption of constitutionality of the Plunder Law.
As it is written, the Plunder Law contains ascertainable standards and
well-defined parameters which would enable the accused to determine
the nature of his violation. Section 2 is sufficiently explicit in its
description of the acts, conduct and conditions required or forbidden, and
prescribes the elements of the crime with reasonable certainty and
particularity. Thus -
1. That the offender is a public officer who acts by himself or in
connivance with members of his family, relatives by affinity or
consanguinity, business associates, subordinates or other
persons;
2. That he amassed, accumulated or acquired ill-gotten wealth
through a combination or series of the following overt or
criminal acts: (a) through misappropriation, conversion, misuse,
or malversation of public funds or raids on the public treasury;
(b) by receiving, directly or indirectly, any commission, gift,
share, percentage, kickback or any other form of pecuniary
benefits from any person and/or entity in connection with any
government contract or project or by reason of the office or
position of the public officer; (c) by the illegal or fraudulent
conveyance or disposition of assets belonging to the National
Government or any of its subdivisions, agencies or
instrumentalities of Government owned or controlled
corporations or their subsidiaries; (d) by obtaining, receiving or
accepting directly or indirectly any shares of stock, equity or any
other form of interest or participation including the promise of
future employment in any business enterprise or undertaking; (e)
by establishing agricultural, industrial or commercial
monopolies or other combinations and/or implementation of
decrees and orders intended to benefit particular persons or
special interests; or (f) by taking advantage of official position,
authority, relationship, connection or influence to unjustly enrich
himself or themselves at the expense and to the damage and
prejudice of the Filipino people and the Republic of the
Philippines; and,
3. That the aggregate amount or total value of the ill-gotten
wealth amassed, accumulated or acquired is at least
₱50,000,000.00.
As long as the law affords some comprehensible guide or rule that would
inform those who are subject to it what conduct would render them liable
to its penalties, its validity will be sustained. It must sufficiently guide
the judge in its application; the counsel, in defending one charged with
its violation; and more importantly, the accused, in identifying the realm
of the proscribed conduct. Indeed, it can be understood with little
difficulty that what the assailed statute punishes is the act of a public
officer in amassing or accumulating ill-gotten wealth of at least
₱50,000,000.00 through a series or combination of acts enumerated in
Sec. 1, par. (d), of the Plunder Law.
In fact, the amended Information itself closely tracks the language of the
law, indicating with reasonable certainty the various elements of the
offense which petitioner is alleged to have committed:
"The undersigned Ombudsman, Prosecutor and OIC-Director, EPIB,
Office of the Ombudsman, hereby accuses former PRESIDENT OF
THE REPUBLIC OF THE PHILIPPINES, Joseph Ejercito
Estrada, a.k.a. 'ASIONG SALONGA' and a.k.a. 'JOSE VELARDE,'
together with Jose 'Jinggoy' Estrada, Charlie 'Atong' Ang, Edward
Serapio, Yolanda T. Ricaforte, Alma Alfaro, JOHN DOE a.k.a. Eleuterio
Tan OR Eleuterio Ramos Tan or Mr. Uy, Jane Doe a.k.a. Delia Rajas,
and John DOES & Jane Does, of the crime of Plunder, defined and
penalized under R.A. No. 7080, as amended by Sec. 12 of R.A. No.
7659, committed as follows:
That during the period from June, 1998 to January 2001, in the
Philippines, and within the jurisdiction of this Honorable Court, accused
Joseph Ejercito Estrada, THEN A PRESIDENT OF THE REPUBLIC
OF THE PHILIPPINES, by
himself AND/OR in CONNIVANCE/CONSPIRACY with his co-
accused, WHO ARE MEMBERS OF HIS FAMILY, RELATIVES
BY AFFINITY OR CONSANGUINITY, BUSINESS ASSOCIATES,
SUBORDINATES AND/OR OTHER PERSONS, BY TAKING
UNDUE ADVANTAGE OF HIS OFFICIAL POSITION,
AUTHORITY, RELATIONSHIP, CONNECTION, OR
INFLUENCE, did then and there willfully, unlawfully and criminally
amass, accumulate and acquire BY HIMSELF, DIRECTLY OR
INDIRECTLY, ill-gotten wealth in the aggregate amount or TOTAL
VALUE of FOUR BILLION NINETY SEVEN MILLION EIGHT
HUNDRED FOUR THOUSAND ONE HUNDRED SEVENTY
THREE PESOS AND SEVENTEEN
CENTAVOS (₱4,097,804,173.17), more or less, THEREBY
UNJUSTLY ENRICHING HIMSELF OR THEMSELVES AT THE
EXPENSE AND TO THE DAMAGE OF THE FILIPINO PEOPLE
AND THE REPUBLIC OF THE PHILIPPINES, through ANY OR
A combination OR Aseries of overt OR criminal acts, OR SIMILAR
SCHEMES OR MEANS, described as follows:
(a) by receiving OR collecting, directly or indirectly,
on SEVERAL INSTANCES, MONEY IN THE
AGGREGATE AMOUNT OF FIVE HUNDRED FORTY-
FIVE MILLION PESOS (₱545,000,000.00), MORE OR
LESS, FROM ILLEGAL GAMBLING IN THE FORM OF
GIFT, SHARE, PERCENTAGE, KICKBACK OR ANY
FORM OF PECUNIARY BENEFIT, BY HIMSELF
AND/OR in connection with co-accused CHARLIE 'ATONG'
ANG, Jose 'Jinggoy' Estrada, Yolanda T. Ricaforte, Edward
Serapio, AND JOHN DOES AND JANE DOES, in
consideration OF TOLERATION OR PROTECTION OF
ILLEGAL GAMBLING;
(b) by DIVERTING, RECEIVING, misappropriating,
converting OR misusing DIRECTLY OR INDIRECTLY,
for HIS OR THEIR PERSONAL gain and benefit, public funds
in the amount of ONE HUNDRED THIRTY MILLION PESOS
(₱130,000,000.00), more or less, representing a portion of
the TWO HUNDRED MILLION PESOS
(₱200,000,000.00) tobacco excise tax share allocated for the
province of Ilocos Sur under R.A. No. 7171, by himself
and/or in connivance with co-accused Charlie 'Atong' Ang, Alma
Alfaro, JOHN DOE a.k.a.Eleuterio Ramos Tan or Mr. Uy, Jane
Doe a.k.a. Delia Rajas, AND OTHER JOHN DOES & JANE
DOES; (italic supplied).
(c) by directing, ordering and compelling, FOR HIS
PERSONAL GAIN AND BENEFIT, the Government Service
Insurance System (GSIS) TO PURCHASE 351,878,000
SHARES OF STOCKS, MORE OR LESS, and the Social
Security System (SSS), 329,855,000 SHARES OF STOCK,
MORE OR LESS, OF THE BELLE CORPORATION IN
THE AMOUNT OF MORE OR LESS ONE BILLION ONE
HUNDRED TWO MILLION NINE HUNDRED SIXTY
FIVE THOUSAND SIX HUNDRED SEVEN PESOS AND
FIFTY CENTAVOS (₱1,102,965,607.50) AND MORE OR
LESS SEVEN HUNDRED FORTY FOUR MILLION SIX
HUNDRED TWELVE THOUSAND AND FOUR
HUNDRED FIFTY PESOS (₱744,612,450.00),
 RESPECTIVELY, OR A TOTAL OF MORE OR LESS ONE
BILLION EIGHT HUNDRED FORTY SEVEN MILLION
FIVE HUNDRED SEVENTY EIGHT THOUSAND FIFTY
SEVEN PESOS AND FIFTY CENTAVOS
(₱1,847,578,057.50); AND BY COLLECTING OR
RECEIVING, DIRECTLY OR INDIRECTLY, BY
HIMSELF AND/OR IN CONNIVANCE WITH JOHN DOES
AND JANE DOES, COMMISSIONS OR PERCENTAGES
BY REASON OF SAID PURCHASES OF SHARES OF
STOCK IN THE AMOUNT OF ONE HUNDRED EIGHTY
NINE MILLION SEVEN HUNDRED THOUSAND PESOS
(₱189,700,000.00) MORE OR LESS, FROM THE BELLE
CORPORATION WHICH BECAME PART OF THE
DEPOSIT IN THE EQUITABLE-PCI BANK UNDER THE
ACCOUNT NAME 'JOSE VELARDE;'
(d) by unjustly enriching himself FROM COMMISSIONS,
GIFTS, SHARES, PERCENTAGES, KICKBACKS, OR
ANY FORM OF PECUNIARY BENEFITS, IN
CONNIVANCE WITH JOHN DOES AND JANE DOES, in
the amount of MORE OR LESS THREE BILLION TWO
HUNDRED THIRTY THREE MILLION ONE HUNDRED
FOUR THOUSAND ONE HUNDRED SEVENTY THREE
PESOS AND SEVENTEEN CENTAVOS
(₱3,233,104,173.17) AND DEPOSITING THE SAME
UNDER HIS ACCOUNT NAME 'JOSE VELARDE' AT
THE EQUITABLE-PCI BANK."
We discern nothing in the foregoing that is vague or ambiguous - as
there is obviously none - that will confuse petitioner in his defense.
Although subject to proof, these factual assertions clearly show that the
elements of the crime are easily understood and provide adequate
contrast between the innocent and the prohibited acts. Upon such
unequivocal assertions, petitioner is completely informed of the
accusations against him as to enable him to prepare for an intelligent
defense.
Petitioner, however, bewails the failure of the law to provide for the
statutory definition of the terms "combination" and "series" in the key
phrase "a combination or series of overt or criminal acts" found in Sec. 1,
par. (d), and Sec. 2, and the word "pattern" in Sec. 4. These omissions,
according to petitioner, render the Plunder Law unconstitutional for
being impermissibly vague and overbroad and deny him the right to be
informed of the nature and cause of the accusation against him, hence,
violative of his fundamental right to due process.
The rationalization seems to us to be pure sophistry. A statute is not
rendered uncertain and void merely because general terms are used
therein, or because of the employment of terms without defining
them;6 much less do we have to define every word we use. Besides, there
is no positive constitutional or statutory command requiring the
legislature to define each and every word in an enactment. Congress is
not restricted in the form of expression of its will, and its inability to so
define the words employed in a statute will not necessarily result in the
vagueness or ambiguity of the law so long as the legislative will is clear,
or at least, can be gathered from the whole act, which is distinctly
expressed in the Plunder Law.
Moreover, it is a well-settled principle of legal hermeneutics that words
of a statute will be interpreted in their natural, plain and ordinary
acceptation and signification,7 unless it is evident that the legislature
intended a technical or special legal meaning to those words.8 The
intention of the lawmakers - who are, ordinarily, untrained philologists
and lexicographers - to use statutory phraseology in such a manner is
always presumed. Thus, Webster's New Collegiate Dictionary contains
the following commonly accepted definition of the words "combination"
and "series:"
Combination - the result or product of combining; the act or process of
combining. To combine is to bring into such close relationship as to
obscure individual characters.
Series - a number of things or events of the same class coming one after
another in spatial and temporal succession.
That Congress intended the words "combination" and "series" to be
understood in their popular meanings is pristinely evident from the
legislative deliberations on the bill which eventually became RA 7080 or
the Plunder Law:
DELIBERATIONS OF THE BICAMERAL COMMITTEE ON
JUSTICE, 7 May 1991
REP. ISIDRO: I am just intrigued again by our definition of plunder. We
say THROUGH A COMBINATION OR SERIES OF OVERT OR
CRIMINAL ACTS AS MENTIONED IN SECTION ONE HEREOF. Now
when we say combination, we actually mean to say, if there are two or
more means, we mean to say that number one and two or number one
and something else are included, how about a series of the same act?
For example, through misappropriation, conversion, misuse, will these
be included also?
REP. GARCIA: Yeah, because we say a series.
REP. ISIDRO: Series.
REP. GARCIA: Yeah, we include series.
REP. ISIDRO: But we say we begin with a combination.
REP. GARCIA: Yes.
REP. ISIDRO: When we say combination, it seems that -
REP. GARCIA: Two.
REP. ISIDRO: Not only two but we seem to mean that two of the
enumerated means not twice of one enumeration.
REP. GARCIA: No, no, not twice.
REP. ISIDRO: Not twice?
REP. GARCIA: Yes. Combination is not twice - but combination, two
acts.
REP. ISIDRO: So in other words, that’s it. When we say combination, we
mean, two different acts. It cannot be a repetition of the same act.
REP. GARCIA: That be referred to series, yeah.
REP. ISIDRO: No, no. Supposing one act is repeated, so there are two.
REP. GARCIA: A series.
REP. ISIDRO: That’s not series. Its a combination. Because when we
say combination or series, we seem to say that two or more, di ba?
REP. GARCIA: Yes, this distinguishes it really from ordinary crimes.
That is why, I said, that is a very good suggestion because if it is only
one act, it may fall under ordinary crime but we have here a combination
or series of overt or criminal acts. So x x x x
REP. GARCIA: Series. One after the other eh di....
SEN. TANADA: So that would fall under the term "series?"
REP. GARCIA: Series, oo.
REP. ISIDRO: Now, if it is a combination, ano, two misappropriations....
REP. GARCIA: Its not... Two misappropriations will not be combination.
Series.
REP. ISIDRO: So, it is not a combination?
REP. GARCIA: Yes.
REP. ISIDRO: When you say combination, two different?
REP. GARCIA: Yes.
SEN. TANADA: Two different.
REP. ISIDRO: Two different acts.
REP. GARCIA: For example, ha...
REP. ISIDRO: Now a series, meaning, repetition...
DELIBERATIONS ON SENATE BILL NO. 733, 6 June 1989
SENATOR MACEDA: In line with our interpellations that sometimes
"one" or maybe even "two" acts may already result in such a big amount,
on line 25, would the Sponsor consider deleting the words "a series of
overt or," to read, therefore: "or conspiracy COMMITTED by criminal
acts such as." Remove the idea of necessitating "a series." Anyway, the
criminal acts are in the plural.
SENATOR TANADA: That would mean a combination of two or more of
the acts mentioned in this.
THE PRESIDENT: Probably two or more would be....
SENATOR MACEDA: Yes, because "a series" implies several or many;
two or more.
SENATOR TANADA: Accepted, Mr. President x x x x
THE PRESIDENT: If there is only one, then he has to be prosecuted
under the particular crime. But when we say "acts of plunder" there
should be, at least, two or more.
SENATOR ROMULO: In other words, that is already covered by
existing laws, Mr. President.
Thus when the Plunder Law speaks of "combination," it is referring to at
least two (2) acts falling under different categories of enumeration
provided in Sec. 1, par. (d), e.g., raids on the public treasury in Sec. 1,
par. (d), subpar. (1), and fraudulent conveyance of assets belonging to
the National Government under Sec. 1, par. (d), subpar. (3).
On the other hand, to constitute a series" there must be two (2) or more
overt or criminal acts falling under the same category of enumeration
found in Sec. 1, par. (d), say, misappropriation, malversation and raids
on the public treasury, all of which fall under Sec. 1, par. (d), subpar. (1).
Verily, had the legislature intended a technical or distinctive meaning for
"combination" and "series," it would have taken greater pains in
specifically providing for it in the law.
As for "pattern," we agree with the observations of the
Sandiganbayan9 that this term is sufficiently defined in Sec. 4, in relation
to Sec. 1, par. (d), and Sec. 2 -
x x x x under Sec. 1 (d) of the law, a 'pattern' consists of at least a
combination or series of overt or criminal acts enumerated in
subsections (1) to (6) of Sec. 1 (d). Secondly, pursuant to Sec. 2 of the
law, the pattern of overt or criminal acts is directed towards a common
purpose or goal which is to enable the public officer to amass,
accumulate or acquire ill-gotten wealth. And thirdly, there must either be
an 'overall unlawful scheme' or 'conspiracy' to achieve said common
goal. As commonly understood, the term 'overall unlawful scheme'
indicates a 'general plan of action or method' which the principal
accused and public officer and others conniving with him follow to
achieve the aforesaid common goal. In the alternative, if there is no such
overall scheme or where the schemes or methods used by multiple
accused vary, the overt or criminal acts must form part of a conspiracy
to attain a common goal.
Hence, it cannot plausibly be contended that the law does not give a fair
warning and sufficient notice of what it seeks to penalize. Under the
circumstances, petitioner's reliance on the "void-for-vagueness" doctrine
is manifestly misplaced. The doctrine has been formulated in various
ways, but is most commonly stated to the effect that a statute
establishing a criminal offense must define the offense with sufficient
definiteness that persons of ordinary intelligence can understand what
conduct is prohibited by the statute. It can only be invoked against that
specie of legislation that is utterly vague on its face, i.e., that which
cannot be clarified either by a saving clause or by construction.
A statute or act may be said to be vague when it lacks comprehensible
standards that men of common intelligence must necessarily guess at its
meaning and differ in its application. In such instance, the statute is
repugnant to the Constitution in two (2) respects - it violates due process
for failure to accord persons, especially the parties targeted by it, fair
notice of what conduct to avoid; and, it leaves law enforcers unbridled
discretion in carrying out its provisions and becomes an arbitrary flexing
of the Government muscle.10 But the doctrine does not apply as against
legislations that are merely couched in imprecise language but which
nonetheless specify a standard though defectively phrased; or to those
that are apparently ambiguous yet fairly applicable to certain types of
activities. The first may be "saved" by proper construction, while no
challenge may be mounted as against the second whenever directed
against such activities.11 With more reason, the doctrine cannot be
invoked where the assailed statute is clear and free from ambiguity, as in
this case.
The test in determining whether a criminal statute is void for uncertainty
is whether the language conveys a sufficiently definite warning as to the
proscribed conduct when measured by common understanding and
practice.12It must be stressed, however, that the "vagueness" doctrine
merely requires a reasonable degree of certainty for the statute to be
upheld - not absolute precision or mathematical exactitude, as petitioner
seems to suggest. Flexibility, rather than meticulous specificity, is
permissible as long as the metes and bounds of the statute are clearly
delineated. An act will not be held invalid merely because it might have
been more explicit in its wordings or detailed in its provisions, especially
where, because of the nature of the act, it would be impossible to provide
all the details in advance as in all other statutes.
Moreover, we agree with, hence we adopt, the observations of Mr.
Justice Vicente V. Mendoza during the deliberations of the Court that the
allegations that the Plunder Law is vague and overbroad do not justify a
facial review of its validity -
The void-for-vagueness doctrine states that "a statute which either
forbids or requires the doing of an act in terms so vague that men of
common intelligence must necessarily guess at its meaning and differ as
to its application, violates the first essential of due process of law."13 The
overbreadth doctrine, on the other hand, decrees that "a governmental
purpose may not be achieved by means which sweep unnecessarily
broadly and thereby invade the area of protected freedoms."14
A facial challenge is allowed to be made to a vague statute and to one
which is overbroad because of possible "chilling effect" upon protected
speech. The theory is that "[w]hen statutes regulate or proscribe speech
and no readily apparent construction suggests itself as a vehicle for
rehabilitating the statutes in a single prosecution, the transcendent value
to all society of constitutionally protected expression is deemed to justify
allowing attacks on overly broad statutes with no requirement that the
person making the attack demonstrate that his own conduct could not be
regulated by a statute drawn with narrow specificity."15 The possible
harm to society in permitting some unprotected speech to go unpunished
is outweighed by the possibility that the protected speech of others may
be deterred and perceived grievances left to fester because of possible
inhibitory effects of overly broad statutes.
This rationale does not apply to penal statutes. Criminal statutes have
general in terrorem effect resulting from their very existence, and, if
facial challenge is allowed for this reason alone, the State may well be
prevented from enacting laws against socially harmful conduct. In the
area of criminal law, the law cannot take chances as in the area of free
speech.
The overbreadth and vagueness doctrines then have special application
only to free speech cases. They are inapt for testing the validity of penal
statutes. As the U.S. Supreme Court put it, in an opinion by Chief Justice
Rehnquist, "we have not recognized an 'overbreadth' doctrine outside the
limited context of the First Amendment."16 In Broadrick v.
Oklahoma,17 the Court ruled that "claims of facial overbreadth have been
entertained in cases involving statutes which, by their terms, seek to
regulate only spoken words" and, again, that "overbreadth claims, if
entertained at all, have been curtailed when invoked against ordinary
criminal laws that are sought to be applied to protected conduct." For this
reason, it has been held that "a facial challenge to a legislative act is the
most difficult challenge to mount successfully, since the challenger must
establish that no set of circumstances exists under which the Act would
be valid."18 As for the vagueness doctrine, it is said that a litigant may
challenge a statute on its face only if it is vague in all its possible
applications. "A plaintiff who engages in some conduct that is clearly
proscribed cannot complain of the vagueness of the law as applied to the
conduct of others."19
In sum, the doctrines of strict scrutiny, overbreadth, and vagueness are
analytical tools developed for testing "on their faces" statutes in free
speech cases or, as they are called in American law, First Amendment
cases. They cannot be made to do service when what is involved is a
criminal statute. With respect to such statute, the established rule is that
"one to whom application of a statute is constitutional will not be heard
to attack the statute on the ground that impliedly it might also be taken as
applying to other persons or other situations in which its application
might be unconstitutional."20 As has been pointed out, "vagueness
challenges in the First Amendment context, like overbreadth challenges
typically produce facial invalidation, while statutes found vague as a
matter of due process typically are invalidated [only] 'as applied' to a
particular defendant."21 Consequently, there is no basis for petitioner's
claim that this Court review the Anti-Plunder Law on its face and in its
entirety.
Indeed, "on its face" invalidation of statutes results in striking them
down entirely on the ground that they might be applied to parties not
before the Court whose activities are constitutionally protected.22 It
constitutes a departure from the case and controversy requirement of the
Constitution and permits decisions to be made without concrete factual
settings and in sterile abstract contexts.23 But, as the U.S. Supreme Court
pointed out in Younger v. Harris24
[T]he task of analyzing a proposed statute, pinpointing its deficiencies,
and requiring correction of these deficiencies before the statute is put
into effect, is rarely if ever an appropriate task for the judiciary. The
combination of the relative remoteness of the controversy, the impact on
the legislative process of the relief sought, and above all the speculative
and amorphous nature of the required line-by-line analysis of detailed
statutes, . . . ordinarily results in a kind of case that is wholly
unsatisfactory for deciding constitutional questions, whichever way they
might be decided.
For these reasons, "on its face" invalidation of statutes has been
described as "manifestly strong medicine," to be employed "sparingly
and only as a last resort,"25 and is generally disfavored.26 In determining
the constitutionality of a statute, therefore, its provisions which are
alleged to have been violated in a case must be examined in the light of
the conduct with which the defendant is charged.27
In light of the foregoing disquisition, it is evident that the purported
ambiguity of the Plunder Law, so tenaciously claimed and argued at
length by petitioner, is more imagined than real. Ambiguity, where none
exists, cannot be created by dissecting parts and words in the statute to
furnish support to critics who cavil at the want of scientific precision in
the law. Every provision of the law should be construed in relation and
with reference to every other part. To be sure, it will take more than
nitpicking to overturn the well-entrenched presumption of
constitutionality and validity of the Plunder Law. A fortiori, petitioner
cannot feign ignorance of what the Plunder Law is all about. Being one
of the Senators who voted for its passage, petitioner must be aware that
the law was extensively deliberated upon by the Senate and its
appropriate committees by reason of which he even registered his
affirmative vote with full knowledge of its legal implications and sound
constitutional anchorage.
The parallel case of Gallego v. Sandiganbayan28 must be mentioned if
only to illustrate and emphasize the point that courts are loathed to
declare a statute void for uncertainty unless the law itself is so imperfect
and deficient in its details, and is susceptible of no reasonable
construction that will support and give it effect. In that case,
petitioners Gallego and Agoncillo challenged the constitutionality of Sec.
3, par. (e), of The Anti-Graft and Corrupt Practices Actfor being vague.
Petitioners posited, among others, that the term "unwarranted" is highly
imprecise and elastic with no common law meaning or settled definition
by prior judicial or administrative precedents; that, for its vagueness,
Sec. 3, par. (e), violates due process in that it does not give fair warning
or sufficient notice of what it seeks to penalize. Petitioners further argued
that the Information charged them with three (3) distinct offenses, to wit:
(a) giving of "unwarranted" benefits through manifest partiality; (b)
giving of "unwarranted" benefits through evident bad faith; and, (c)
giving of "unwarranted" benefits through gross inexcusable negligence
while in the discharge of their official function and that their right to be
informed of the nature and cause of the accusation against them was
violated because they were left to guess which of the three (3) offenses,
if not all, they were being charged and prosecuted.
In dismissing the petition, this Court held that Sec. 3, par. (e), of The
Anti-Graft and Corrupt Practices Act does not suffer from the
constitutional defect of vagueness. The phrases "manifest partiality,"
"evident bad faith," and "gross and inexcusable negligence" merely
describe the different modes by which the offense penalized in Sec. 3,
par. (e), of the statute may be committed, and the use of all these phrases
in the same Information does not mean that the indictment charges three
(3) distinct offenses.
The word 'unwarranted' is not uncertain. It seems lacking adequate or
official support; unjustified; unauthorized (Webster, Third International
Dictionary, p. 2514); or without justification or adequate reason
(Philadelphia Newspapers, Inc. v. US Dept. of Justice, C.D. Pa., 405 F.
Supp. 8, 12, cited in Words and Phrases, Permanent Edition, Vol. 43-A
1978, Cumulative Annual Pocket Part, p. 19).
The assailed provisions of the Anti-Graft and Corrupt Practices Act
consider a corrupt practice and make unlawful the act of the public
officer in:
x x x or giving any private party any unwarranted benefits, advantage or
preference in the discharge of his official, administrative or judicial
functions through manifest partiality, evident bad faith or gross
inexcusable negligence, x x x (Section 3 [e], Rep. Act 3019, as
amended).
It is not at all difficult to comprehend that what the aforequoted penal
provisions penalize is the act of a public officer, in the discharge of his
official, administrative or judicial functions, in giving any private party
benefits, advantage or preference which is unjustified, unauthorized or
without justification or adequate reason, through manifest partiality,
evident bad faith or gross inexcusable negligence.
In other words, this Court found that there was nothing vague or
ambiguous in the use of the term "unwarranted" in Sec. 3, par. (e), of The
Anti-Graft and Corrupt Practices Act, which was understood in its
primary and general acceptation. Consequently, in that case, petitioners'
objection thereto was held inadequate to declare the section
unconstitutional.
On the second issue, petitioner advances the highly stretched theory that
Sec. 4 of the Plunder Law circumvents the immutable obligation of the
prosecution to prove beyond reasonable doubt the predicate acts
constituting the crime of plunder when it requires only proof of a pattern
of overt or criminal acts showing unlawful scheme or conspiracy -
SEC. 4. Rule of Evidence. - For purposes of establishing the crime of
plunder, it shall not be necessary to prove each and every criminal act
done by the accused in furtherance of the scheme or conspiracy to
amass, accumulate or acquire ill-gotten wealth, it being sufficient to
establish beyond reasonable doubt a pattern of overt or criminal acts
indicative of the overall unlawful scheme or conspiracy.
The running fault in this reasoning is obvious even to the simplistic
mind. In a criminal prosecution for plunder, as in all other crimes, the
accused always has in his favor the presumption of innocence which is
guaranteed by the Bill of Rights, and unless the State succeeds in
demonstrating by proof beyond reasonable doubt that culpability lies, the
accused is entitled to an acquittal.29 The use of the "reasonable doubt"
standard is indispensable to command the respect and confidence of the
community in the application of criminal law. It is critical that the moral
force of criminal law be not diluted by a standard of proof that leaves
people in doubt whether innocent men are being condemned. It is also
important in our free society that every individual going about his
ordinary affairs has confidence that his government cannot adjudge him
guilty of a criminal offense without convincing a proper factfinder of his
guilt with utmost certainty. This "reasonable doubt" standard has
acquired such exalted stature in the realm of constitutional law as it gives
life to the Due Process Clause which protects the accused against
conviction except upon proof beyond reasonable doubt of every fact
necessary to constitute the crime with which he is charged.30 The
following exchanges between Rep. Rodolfo Albano and Rep. Pablo
Garcia on this score during the deliberations in the floor of the House of
Representatives are elucidating -
DELIBERATIONS OF THE HOUSE OF REPRESENTATIVES ON
RA 7080, 9 October 1990
MR. ALBANO: Now, Mr. Speaker, it is also elementary in our criminal
law that what is alleged in the information must be proven beyond
reasonable doubt. If we will prove only one act and find him guilty of the
other acts enumerated in the information, does that not work against the
right of the accused especially so if the amount committed, say, by
falsification is less than ₱100 million, but the totality of the crime
committed is ₱100 million since there is malversation, bribery,
falsification of public document, coercion, theft?
MR. GARCIA: Mr. Speaker, not everything alleged in the information
needs to be proved beyond reasonable doubt. What is required to be
proved beyond reasonable doubt is every element of the crime charged.
For example, Mr. Speaker, there is an enumeration of the things taken by
the robber in the information – three pairs of pants, pieces of jewelry.
These need not be proved beyond reasonable doubt, but these will not
prevent the conviction of a crime for which he was charged just because,
say, instead of 3 pairs of diamond earrings the prosecution proved two.
Now, what is required to be proved beyond reasonable doubt is the
element of the offense.
MR. ALBANO: I am aware of that, Mr. Speaker, but considering that in
the crime of plunder the totality of the amount is very important, I feel
that such a series of overt criminal acts has to be taken singly. For
instance, in the act of bribery, he was able to accumulate only ₱50,000
and in the crime of extortion, he was only able to accumulate ₱1 million.
Now, when we add the totality of the other acts as required under this
bill through the interpretation on the rule of evidence, it is just one single
act, so how can we now convict him?
MR. GARCIA: With due respect, Mr. Speaker, for purposes of proving
an essential element of the crime, there is a need to prove that element
beyond reasonable doubt. For example, one essential element of the
crime is that the amount involved is ₱100 million. Now, in a series of
defalcations and other acts of corruption in the enumeration the total
amount would be ₱110 or ₱120 million, but there are certain acts that
could not be proved, so, we will sum up the amounts involved in those
transactions which were proved. Now, if the amount involved in these
transactions, proved beyond reasonable doubt, is ₱100 million, then
there is a crime of plunder (underscoring supplied).
It is thus plain from the foregoing that the legislature did not in any
manner refashion the standard quantum of proof in the crime of plunder.
The burden still remains with the prosecution to prove beyond any iota
of doubt every fact or element necessary to constitute the crime.
The thesis that Sec. 4 does away with proof of each and every
component of the crime suffers from a dismal misconception of the
import of that provision. What the prosecution needs to prove beyond
reasonable doubt is only a number of acts sufficient to form a
combination or series which would constitute a pattern and involving an
amount of at least ₱50,000,000.00. There is no need to prove each and
every other act alleged in the Information to have been committed by the
accused in furtherance of the overall unlawful scheme or conspiracy to
amass, accumulate or acquire ill-gotten wealth. To illustrate, supposing
that the accused is charged in an Information for plunder with having
committed fifty (50) raids on the public treasury. The prosecution need
not prove all these fifty (50) raids, it being sufficient to prove by pattern
at least two (2) of the raids beyond reasonable doubt provided only that
they amounted to at least ₱50,000,000.00.31
A reading of Sec. 2 in conjunction with Sec. 4, brings us to the logical
conclusion that "pattern of overt or criminal acts indicative of the overall
unlawful scheme or conspiracy" inheres in the very acts of accumulating,
acquiring or amassing hidden wealth. Stated otherwise, such pattern
arises where the prosecution is able to prove beyond reasonable doubt
the predicate acts as defined in Sec. 1, par. (d). Pattern is merely a by-
product of the proof of the predicate acts. This conclusion is consistent
with reason and common sense. There would be no other explanation for
a combination or series of
overt or criminal acts to stash ₱50,000,000.00 or more, than "a scheme or
conspiracy to amass, accumulate or acquire ill gotten wealth." The
prosecution is therefore not required to make a deliberate and conscious
effort to prove pattern as it necessarily follows with the establishment of
a series or combination of the predicate acts.
Relative to petitioner's contentions on the purported defect of Sec. 4 is
his submission that "pattern" is "a very important element of the crime of
plunder;" and that Sec. 4 is "two pronged, (as) it contains a rule of
evidence and a substantive element of the crime," such that without it the
accused cannot be convicted of plunder -
JUSTICE BELLOSILLO: In other words, cannot an accused be
convicted under the Plunder Law without applying Section 4 on the Rule
of Evidence if there is proof beyond reasonable doubt of the commission
of the acts complained of?
ATTY. AGABIN: In that case he can be convicted of individual crimes
enumerated in the Revised Penal Code, but not plunder.
JUSTICE BELLOSILLO: In other words, if all the elements of the crime
are proved beyond reasonable doubt without applying Section 4, can you
not have a conviction under the Plunder Law?
ATTY. AGABIN: Not a conviction for plunder, your Honor.
JUSTICE BELLOSILLO: Can you not disregard the application of Sec. 4
in convicting an accused charged for violation of the Plunder Law?
ATTY. AGABIN: Well, your Honor, in the first place Section 4 lays down
a substantive element of the law x x x x
JUSTICE BELLOSILLO: What I said is - do we have to avail of Section
4 when there is proof beyond reasonable doubt on the acts charged
constituting plunder?
ATTY. AGABIN: Yes, your Honor, because Section 4 is two pronged, it
contains a rule of evidence and it contains a substantive element of the
crime of plunder. So, there is no way by which we can avoid Section 4.
JUSTICE BELLOSILLO: But there is proof beyond reasonable doubt
insofar as the predicate crimes charged are concerned that you do not
have to go that far by applying Section 4?
ATTY. AGABIN: Your Honor, our thinking is that Section 4 contains a
very important element of the crime of plunder and that cannot be
avoided by the prosecution.32
We do not subscribe to petitioner's stand. Primarily, all the essential
elements of plunder can be culled and understood from its definition in
Sec. 2, in relation to Sec. 1, par. (d), and "pattern" is not one of them.
Moreover, the epigraph and opening clause of Sec. 4 is clear and
unequivocal:
SEC. 4. Rule of Evidence. - For purposes of establishing the crime of
plunder x x x x
It purports to do no more than prescribe a rule of procedure for the
prosecution of a criminal case for plunder. Being a purely procedural
measure, Sec. 4 does not define or establish any substantive right in
favor of the accused but only operates in furtherance of a remedy. It is
only a means to an end, an aid to substantive law. Indubitably, even
without invoking Sec. 4, a conviction for plunder may be had, for what is
crucial for the prosecution is to present sufficient evidence to engender
that moral certitude exacted by the fundamental law to prove the guilt of
the accused beyond reasonable doubt. Thus, even granting for the sake of
argument that Sec. 4 is flawed and vitiated for the reasons advanced by
petitioner, it may simply be severed from the rest of the provisions
without necessarily resulting in the demise of the law; after all, the
existing rules on evidence can supplant Sec. 4 more than enough.
Besides, Sec. 7 of RA 7080 provides for a separability clause -
Sec. 7. Separability of Provisions. - If any provisions of this Act or the
application thereof to any person or circumstance is held invalid, the
remaining provisions of this Act and the application of such provisions
to other persons or circumstances shall not be affected thereby.
Implicit in the foregoing section is that to avoid the whole act from being
declared invalid as a result of the nullity of some of its provisions,
assuming that to be the case although it is not really so, all the provisions
thereof should accordingly be treated independently of each other,
especially if by doing so, the objectives of the statute can best be
achieved.
As regards the third issue, again we agree with Justice Mendoza that
plunder is a malum in se which requires proof of criminal intent. Thus,
he says, in his Concurring Opinion -
x x x Precisely because the constitutive crimes are mala in se the element
of mens rea must be proven in a prosecution for plunder. It is noteworthy
that the amended information alleges that the crime of plunder was
committed "willfully, unlawfully and criminally." It thus alleges guilty
knowledge on the part of petitioner.
In support of his contention that the statute eliminates the requirement
of mens rea and that is the reason he claims the statute is void, petitioner
cites the following remarks of Senator Tañada made during the
deliberation on S.B. No. 733:
SENATOR TAÑADA . . . And the evidence that will be required to
convict him would not be evidence for each and every individual
criminal act but only evidence sufficient to establish the conspiracy or
scheme to commit this crime of plunder.33
However, Senator Tañada was discussing §4 as shown by the succeeding
portion of the transcript quoted by petitioner:
SENATOR ROMULO: And, Mr. President, the Gentleman feels that it is
contained in Section 4, Rule of Evidence, which, in the Gentleman's
view, would provide for a speedier and faster process of attending to this
kind of cases?
SENATOR TAÑADA: Yes, Mr. President . . .34
Senator Tañada was only saying that where the charge is conspiracy to
commit plunder, the prosecution need not prove each and every criminal
act done to further the scheme or conspiracy, it being enough if it proves
beyond reasonable doubt a pattern of overt or ciminal acts indicative of
the overall unlawful scheme or conspiracy. As far as the acts constituting
the pattern are concerned, however, the elements of the crime must be
proved and the requisite mens rea must be shown.
Indeed, §2 provides that -
Any person who participated with the said public officer in the
commission of an offense contributing to the crime of plunder shall
likewise be punished for such offense. In the imposition of penalties, the
degree of participation and the attendance of mitigating and extenuating
circumstances, as provided by the Revised Penal Code, shall be
considered by the court.
The application of mitigating and extenuating circumstances in the
Revised Penal Code to prosecutions under the Anti-Plunder Law
indicates quite clearly that mens rea is an element of plunder since the
degree of responsibility of the offender is determined by his criminal
intent. It is true that §2 refers to "any person who participates with the
said public officer in the commission of an offense contributing to the
crime of plunder." There is no reason to believe, however, that it does
not apply as well to the public officer as principal in the crime. As
Justice Holmes said: "We agree to all the generalities about not
supplying criminal laws with what they omit, but there is no canon
against using common sense in construing laws as saying what they
obviously mean."35
Finally, any doubt as to whether the crime of plunder is a malum in
se must be deemed to have been resolved in the affirmative by the
decision of Congress in 1993 to include it among the heinous crimes
punishable by reclusion perpetua to death. Other heinous crimes are
punished with death as a straight penalty in R.A. No. 7659. Referring to
these groups of heinous crimes, this Court held in People v. Echegaray:36
The evil of a crime may take various forms. There are crimes that are, by
their very nature, despicable, either because life was callously taken or
the victim is treated like an animal and utterly dehumanized as to
completely disrupt the normal course of his or her growth as a human
being . . . . Seen in this light, the capital crimes of kidnapping and serious
illegal detention for ransom resulting in the death of the victim or the
victim is raped, tortured, or subjected to dehumanizing acts; destructive
arson resulting in death; and drug offenses involving minors or resulting
in the death of the victim in the case of other crimes; as well as murder,
rape, parricide, infanticide, kidnapping and serious illegal detention,
where the victim is detained for more than three days or serious physical
injuries were inflicted on the victim or threats to kill him were made or
the victim is a minor, robbery with homicide, rape or intentional
mutilation, destructive arson, and carnapping where the owner, driver or
occupant of the carnapped vehicle is killed or raped, which are penalized
by reclusion perpetua to death, are clearly heinous by their very nature.
There are crimes, however, in which the abomination lies in the
significance and implications of the subject criminal acts in the scheme
of the larger socio-political and economic context in which the state finds
itself to be struggling to develop and provide for its poor and
underprivileged masses. Reeling from decades of corrupt tyrannical rule
that bankrupted the government and impoverished the population, the
Philippine Government must muster the political will to dismantle the
culture of corruption, dishonesty, greed and syndicated criminality that
so deeply entrenched itself in the structures of society and the psyche of
the populace. [With the government] terribly lacking the money to
provide even the most basic services to its people, any form of
misappropriation or misapplication of government funds translates to an
actual threat to the very existence of government, and in turn, the very
survival of the people it governs over. Viewed in this context, no less
heinous are the effects and repercussions of crimes like qualified bribery,
destructive arson resulting in death, and drug offenses involving
government officials, employees or officers, that their perpetrators must
not be allowed to cause further destruction and damage to society.
The legislative declaration in R.A. No. 7659 that plunder is a heinous
offense implies that it is a malum in se. For when the acts punished are
inherently immoral or inherently wrong, they are mala in se37 and it does
not matter that such acts are punished in a special law, especially since in
the case of plunder the predicate crimes are mainly mala in se. Indeed, it
would be absurd to treat prosecutions for plunder as though they are
mere prosecutions for violations of the Bouncing Check Law (B.P. Blg.
22) or of an ordinance against jaywalking, without regard to the inherent
wrongness of the acts.
To clinch, petitioner likewise assails the validity of RA 7659, the Kapunan, Pardo, Sandoval-Gutierrez, Ynares-Santiago, JJ., see
amendatory law of RA 7080, on constitutional grounds. Suffice it to say dissenting opinion.
however that it is now too late in the day for him to resurrect this long Mendoza, J., please see concurring opinion.
dead issue, the same having been eternally consigned by People v. Panganiban J., please see separate concurring opinion.
Echegaray38 to the archives of jurisprudential history. The declaration of Carpio, J., no part. Was one of the complainants before Ombudsman.
this Court therein that RA 7659 is constitutionally valid stands as a
declaration of the State, and becomes, by necessary effect, assimilated in
the Constitution now as an integral part of it. Footnotes
1
Our nation has been racked by scandals of corruption and obscene Approved 12 July 1991 and took effect 8 October 1991.
2
profligacy of officials in high places which have shaken its very Approved 13 December 1993 and took effect 31 December
foundation. The anatomy of graft and corruption has become more 1993.
3
elaborate in the corridors of time as unscrupulous people relentlessly Lim v. Pacquing, et al., G.R. No. 115044, 27 January 1995, 240
contrive more and more ingenious ways to bilk the coffers of the SCRA 644.
4
government. Drastic and radical measures are imperative to fight the G.R. No. 87001, 4 December 1989, 179 SCRA 828.
5
increasingly sophisticated, extraordinarily methodical and economically Yu Cong Eng v. Trinidad, 47 Phil. 385, 414 (1925).
6
catastrophic looting of the national treasury. Such is the Plunder Law, 82 C.J.S. 68, p. 113; People v. Ring, 70 P.2d 281, 26 Cal. App.
especially designed to disentangle those ghastly tissues of grand-scale 2d Supp. 768.
7
corruption which, if left unchecked, will spread like a malignant tumor Mustang Lumber, Inc. v. Court of Appeals, G.R. No. 104988,
and ultimately consume the moral and institutional fiber of our nation. 18 June 1996, 257 SCRA 430, 448.
8
The Plunder Law, indeed, is a living testament to the will of the PLDT v. Eastern Telecommunications Phil., Inc., G.R. No.
legislature to ultimately eradicate this scourge and thus secure society 943774, 27 August 1992, 213 SCRA 16, 26.
9
against the avarice and other venalities in public office. Resolution of 9 July 2001.
10
These are times that try men's souls. In the checkered history of this See People v. Nazario, No. L-44143, 31 August 1988, 165
nation, few issues of national importance can equal the amount of SCRA 186, 195-196.
11
interest and passion generated by petitioner's ignominious fall from the Ibid.
12
highest office, and his eventual prosecution and trial under a virginal State v. Hill, 189 Kan 403, 369 P2d 365, 91 ALR2d 750.
13
statute. This continuing saga has driven a wedge of dissension among Connally v. General Constr. Co., 269 U.S. 385, 391, 70 L. Ed.
our people that may linger for a long time. Only by responding to the 328 (1926) cited in Ermita-Malate Hotel and Motel Operators
clarion call for patriotism, to rise above factionalism and prejudices, Ass'n. v. City Mayor, 20 SCRA 849, 867 (1967).
14
shall we emerge triumphant in the midst of ferment. NAACP v. Alabama, 377 U.S. 288, 307, 12, 2 L. Ed 325, 338
PREMISES CONSIDERED, this Court holds that RA 7080 otherwise (1958); Shelton v. Tucker 364 U.S. 479, 5 L. Ed. 2d 231 (1960).
15
known as the Plunder Law, as amended by RA 7659, is Gooding v. Wilson, 405 U.S. 518, 521, 31 L. Ed. 2d 408, 413
CONSTITUTIONAL. Consequently, the petition to declare the law (1972) (internal quotation marks omitted).
16
unconstitutional is DISMISSED for lack of merit. United States v. Salerno, 481 U.S. 739, 745 95 L. Ed 2d 697,
SO ORDERED. 707 (1987); see also People v. De la Piedra, G.R. No. 121777, 24
Buena, and De Leon, Jr., JJ., concur. January 2001.
17
Davide, Jr. C.J., Melo, Quisumbing, JJ., join concurring opinion of J. 413 U.S. 601, 612-613, 37 L. Ed 2d 830, 840-841 (1973).
18
Mendoza. United States v. Salerno, supra.
Puno, Vitug, JJ., concurred and joins J. Mendoza's concurring opinion.
19
Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc.,
455 U.S. 489, 494-95, 71 L. Ed. 2d 362, 369 (1982).
20
United States v. Raines, 362 U.S. 17, 21, 4 L. Ed. 2d 524, 529
(1960). The paradigmatic case is Yazoo & Mississippi Valley
RR. v. Jackson Vinegar Co., 226 U.S. 217, 57 L. Ed. 193 (1912).
21
G. Gunther & K. Sullivan, Constitutional Law 1299 (2001).
22
Id. at 1328. See also Richard H. Fallon, Jr., As Applied and
Facial Challenges, 113 Harv. L. Rev. 1321 (2000) arguing that, in
an important sense, as applied challenges are the basic building
blocks of constitutional adjudication and that determinations that
statutes are facially invalid properly occur only as logical
outgrowths of ruling on whether statutes may be applied to
particular litigants on particular facts.
23
Constitution, Art. VIII, §1 and 5. Compare Angara v. Electoral
Commission, 63 Phil. 139, 158 (1936); "[T]he power of judicial
review is limited to actual cases and controversies to be exercised
after full opportunity of argument by the parties, and limited
further to be constitutional question raised or the very lis mota
presented. Any attempt at abstraction could only lead to dialectics
and barren legal questions and to sterile conclusions unrelated to
actualities."
24
401 U.S. 37, 52-53, 27 L. Ed. 2d 669, 680 (1971). Accord,
United States v. Raines, 362 U.S. 17, 4 L. Ed. 2d 524 (1960);
Board of Trustees, State Univ. of N.Y. v. Fox, 492 U.S. 469, 106
L. Ed. 2d 388 (1989).
25
Broadrick v. Oklahoma, 413 U.S. at 613, 37 L. Ed. 2d at 841;
National Endowment for the Arts v. Finley, 524 U.S. 569, 580
(1998).
26
FW/PBS, Inc. v. City of Dallas, 493 U.S. 223, 107 L. Ed. 2d
603 (1990); Cruz v. Secretary of Environment and Natural
Resources, G.R. No. 135385, 6 December 2000 (Mendoza, J.,
Separate Opinion).
27
United States v. National Dairy Prod. Corp., 372 U.S. 29, 32-
33, 9 L. Ed. 2d 561, 565-6 (1963).
28
G.R. No. 57841, 30 July 1982, 115 SCRA 793.
29
People v. Ganguso, G.R. No. 115430, 23 November 1995, 250
SCRA 268, 274-275.
30
People v. Garcia, G.R. No. 94187, 4 November 1992, 215
SCRA 349, 360.
31
Then Senate President Jovito R. Salonga construed in brief the
provision, thuswise: "If there are let’s say 150 crimes all in all,
criminal acts, whether bribery, misappropriation, malversation,
extortion, you need not prove all those beyond reasonable doubt.
If you can prove by pattern, let’s say 10, but each must be proved
beyond reasonable doubt, you do not have to prove 150 crimes.
That’s the meaning of this (Deliberations of Committee on
Constitutional Amendments and Revision of Laws, 15 November
1988, cited in the Sandiganbayan Resolution of 9 July 2001).
32
TSN, 18 September 2001, pp. 115-121.
33
4 Record of the Senate 1316, 5 June 1989.
34
Ibid.
35
Roschen v. Ward, 279 U.S. 337, 339, 73 L.Ed. 722, 728
(1929).
36
267 SCRA 682, 721-2 (1997) (emphasis added).
37
Black's Law Dictionary 959 (1990); Lozano v. Martinez, 146
SCRA 324, 338 (1986).
38
G.R. No. 117472, 7 February 1997, 267 SCRA 682.
The Lawphil Project - Arellano Law Foundation
DISSENTING OPINION
KAPUNAN, J.:
The primary duty of the Court is to render justice. The resolution of the
issues brought before it must be grounded on law, justice and the basic
tenets of due process, unswayed by the passions of the day or the clamor
of the multitudes, guided only by its members’ honest conscience, clean
hearts and their unsullied conviction to do what is right under the law.
The issues posed by the instant petition are quite difficult. The task of the
Court to resolve the same is made more daunting because the case
involves a former President of the Republic who, in the eyes of certain
sectors of society, deserves to be punished. But the mandate of the Court
is to decide these issues solely on the basis of law and due process, and
regardless of the personalities involved. For indeed, the rule of law and
the right to due process are immutable principles that should apply to all,
even to those we hate. As Fr. Joaquin G. Bernas, S.J., a noted
constitutionalist, aptly puts it--
x x x the greater disaster would be if the Supreme Court should heed the
clamor for conviction and convict Estrada even under an unconstitutional
law but of the belief that Estrada deserves to be punished. That would be
tantamount to a rule of men and not of law.1
The Basic Facts
The petition before us questions the constitutionality of Republic Act
No. 7080 (R.A. No. 7080 or Plunder Law), as amended by Republic Act
No. 7659,2 entitled "An Act Defining and Penalizing the Crime of
Plunder."3 This original petition for certiorari and prohibition against
Respondent Third Division of the Sandiganbayan filed by petitioner
Joseph Ejercito Estrada assails Respondent court’s Resolution, dated
July 9, 2001, denying his Motion to Quash the information against him
in Criminal Case No. 26558 for Plunder. Petitioner likewise prays that
the Sandiganbayan be prohibited and enjoined from proceeding with his
arraignment and trial in Criminal Case No. 26558 due to the
unconstitutionality of R. A. No. 7080.
On the heels of the finality of the joint decision of this Court in G.R. No.
146710 (Estrada vs. Desierto, et al.) and in G.R. No. 146738 (Estrada
vs. Macapagal-Arroyo), promulgated on April 3, 2001, upholding the
constitutionality of President Gloria Macapagal-Arroyo’s assumption of
office as President of the Republic of the Philippines and declaring that
the former President Joseph Ejercito Estrada no longer enjoyed
immunity from suit, the Ombudsman filed eight (8) Informations against
Estrada. These cases were Criminal Case No. 26558 (for Plunder);
Criminal Case No. 26559 (for Violation of Sec. 3[a] of Republic Act No.
3019); Criminal Case No. 26560 (for Violation of Sec. 3[a] of R.A. No.
3019); Criminal Case No. 26561 (for Violation of Sec. 3[e] of R.A.
3019); Criminal Case No. 26562 (for Violation of Sec. 3[e] of R.A. No.
3019); Criminal Case No. 26563 (for Violation of Sec. 7[d] of R.A. No.
6713); Criminal Case No. 26564 (for Perjury); and Criminal Case No.
26565 (for Illegal Use of Alias).
The aforementioned informations were raffled to the five divisions of the
Sandiganbayan. Criminal Case No. 26558 was raffled to the Third
Division of said court. The amended information against petitioner
charging violations of Section 2, in relation to Section (d) (1) (2) of the
statute reads:
That during the period from June, 1998 to January, 2001, in the
Philippines, and within the jurisdiction of this Honorable Court, accused
Joseph Ejercito Estrada, by himself and in conspiracy with his co-
accused, business associates and persons heretofore named, by taking
advantage of his official position, authority, connection or influence as
President of the Republic of the Philippines, did then and there wilfully,
unlawfully and criminally amass, accumulate and acquire ill-gotten
wealth, and unjustly enrich himself in the aggregate amount of
P4,097,804,173.17, more or less, through a combination and series of
overt and criminal acts, described as follows:
(a) by receiving, collecting, directly or indirectly, on many
instances, so-called "jueteng money" from gambling operators in
connivance with co-accused Jose ‘Jinggoy’ Estrada, Yolanda T.
Ricaforte and Edward Serapio, as witnessed by Gov. Luis
‘Chavit’ Singson, among other witnesses, in the aggregate
amount of FIVE HUNDRED FORTY-FIVE MILLION PESOS
(P545,000.000.00), more or less, in consideration of their
protection from arrest or interference by law enforcers in their
illegal "jueteng" activities; and
(b) by misappropriating, converting and misusing for his gain and
benefit public fund in the amount of ONE HUNDRED THIRTY
MILLION PESOS (P130,000,000.00), more or less, representing
a portion of One Hundred Seventy Million Pesos
(P170,000,000.00) tobacco excise tax share allocated for the
Province of Ilocos Sur under R.A. No. 7171, in conspiracy with
co-accused Charlie ‘Atong’ Ang, Alma Alfaro, Eleuterio Tan
a.k.a. Eleuterio Ramos Tan or Mr. Uy, and Jane Doe a.k.a. Delia
Rajas, as witnessed by Gov. Luis ‘Chavit’ Singson, among other
witnesses; and
(c) by directing, ordering and compelling the Government
Service Insurance System (GSIS) and the Social Security System
(SSS) to purchase and buy a combined total of 681,733,000
shares of stock of the Belle Corporation in the aggregate gross
value of One Billion Eight Hundred Forty-Seven Million Five
Hundred Seventy Eight Thousand Pesos and Fifty
Centavos(P1,847,578,057.50), for the purpose of collecting for
his personal gain and benefit, as in fact he did collect and receive
the sum of ONE HUNDRED EIGHTY NINE MILLION SEVEN
 HUNDRED THOUSAND FIFTY SEVEN PESOS
(P189,700,000.00) as commission for said stock purchase; and
(d) by unjustly enriching himself in the amount of THREE
BILLION TWO HUNDRED THIRTY THREE MILLION ONE
HUNDRED FOUR THOUSAND ONE HUNDRED SEVENTY
THREE PESOS AND SEVENTEEN CENTAVOS
(P3,233,104,173.17) comprising his unexplained wealth acquired,
accumulated and amassed by him under his account name "Jose
Velarde" with Equitable PCI Bank:
to the damage and prejudice of the Filipino people and the Republic of
the Philippines.
CONTRARY TO LAW.4
On April 16 and 17, 2001, the Ombudsman filed an Ex-Parte
Manifestation to Withdraw Information in Criminal Case Nos. 26559,
26560, 26561, 26562 and 26563. Petitioner registered his objection to
the Ombudsman’s motion to withdraw. The divisions of the
Sandiganbayan to which said cases were assigned granted the withdrawal
of the informations, save for that in Criminal Case No. 26561. At
present, the Order of the First Division of the Sandiganbayan denying the
Ombudsman’s motion to withdraw in Criminal Case No. 26561 is still
under reconsideration.
In Criminal Case No. 26558, petitioner filed on April 11, 2001 an
Omnibus Motion for the remand of the case to the Office of the
Ombudsman for: (1) the conduct of a preliminary investigation as
regards specification "d" of the accusations in the information in said
case; and (2) reconsideration/reinvestigation of the offenses in
specifications "a," "b" and "c" to enable petitioner to file his counter-
affidavits as well as other necessary documents.
On April 25, 2001, the Third Division of the Sandiganbayan issued a
Resolution finding that:
(p)robable cause for the offense of PLUNDER exists to justify issuance
of warrants of arrest of accused former President Joseph Ejercito Estrada,
Mayor Jose "Jinggoy" Estrada, Charlie "Atong" Ang, Edward Serapio,
Yolanda T. Ricaforte, Alma Alfaro, John Doe a.k.a Eleuterio Tan or
Eleuterio Ramon Tan or Mr. Uy and Jane Doe a.k.a. Delia Rajas.
Subsequently, on May 31, 2001, the Third Division of the
Sandiganbayan issued a Resolution denying petitioner’s Omnibus
Motion.
On June 15, 2001, petitioner filed a Motion for Reconsideration of said
Resolution but the same was denied in a Resolution of June 25, 2001.
Meanwhile, on June 14, 2001, petitioner filed a Motion to Quash the
information in Criminal Case No. 26558, invoking the following
grounds: (1) the facts charged do not constitute an indictable offense as
R.A. No. 7080, the statute on which it is based, is unconstitutional; and
(2) the information charges more than one offense.
The People of the Philippines filed an Opposition thereto on June 21,
2001. Petitioner filed his Reply to the Opposition on June 28, 2001.
On July 9, 2001, the Third Division of the Sandiganbayan issued its
Resolution denying petitioner’s motion to quash.
Petitioner thus filed the instant petition for certiorari and prohibition,
claiming that the Sandiganbayan committed grave abuse of discretion in
denying his motion to quash the information in Criminal Case No.
26558. Petitioner argues that R.A. No. 7080 is unconstitutional on the
following grounds:
I. IT VIOLATES THE DUE PROCESS CLAUSE FOR ITS
VAGUENESS
II. IT VIOLATES THE CONSTITUTIONAL RIGHT OF THE
ACCUSED TO KNOW THE NATURE AND CAUSE OF THE
ACCUSATION AGAINST HIM
III. IT VIOLATES THE DUE PROCESS CLAUSE AND THE
CONSTITUTIONAL PRESUMPTION OF INNOCENCE BY
LOWERING THE QUANTUM OF EVIDENCE NECESSARY
FOR PROVING THE COMPONENT ELEMENTS OF
PLUNDER
IV. IT IS BEYOND THE CONSTITUTIONAL POWER OF
THE LEGISLATURE TO DELIMIT THE REASONABLE
DOUBT STANDARD AND TO ABOLISH THE ELEMENT
OF MENS REA IN MALA IN SECRIMES BY CONVERTING
THESE TO MALA PROHIBITA, IN VIOLATION OF THE
DUE PROCESS CONCEPT OF CRIMINAL
RESPONSIBILITY.5
The provisions of law involved
Section 2 of R.A. No. 7080 provides:
Definition of the Crime of Plunder; Penalties. - Any public officer who,
by himself or in connivance with members of his family, relatives by
affinity or consanguinity, business associates, subordinates or other
persons, amasses, accumulates or acquires ill-gotten wealth through a
combination or series of overt or criminal acts as described in Section
1(d) hereof in the aggregate amount or total value of at least Fifty million
pesos (P50,000,000.00) shall be guilty of the crime of plunder and shall
be punished by reclusion perpetua to death. Any person who participated
with the said public officer in the commission of an offense contributing
to the crime of plunder shall likewise be punished for such offense. In
the imposition of penalties, the degree of participation and the attendance
of mitigating and extenuating circumstances, as provided by the Revised
Penal Code, shall be considered by the court. The court shall declare any
and all ill-gotten wealth and their interests and other incomes and assets
including the properties and shares of stocks derived from the deposit or
investment thereof forfeited in favor of the State. (As amended by Sec.
12, RA No. 7659.)
Section 1(d) of the same law defines "ill-gotten wealth" as "any asset,
property, business enterprise or material possession of any person within
the purview of Section Two (2)" hereof, acquired by him directly or
indirectly through dummies, nominees, agents, subordinates, and/or
business associates by any combination or series of the following means
or similar schemes:
1. Through misappropriation, conversion, misuse or malversation
of public funds or raids on the public treasury;
2. By receiving, directly or indirectly, any commission, gift,
share, percentage, kickbacks or any other form of pecuniary
benefit from any person and/or entity in connection with any
government contract or project or by reason of the office or
position of the public officer concerned;
3. By the illegal or fraudulent conveyance or disposition of assets
belonging to the National Government or any of its subdivisions,
agencies or instrumentalities or government-owned or controlled
corporations and their subsidiaries;
4. By obtaining, receiving or accepting directly or indirectly any
shares of stock, equity or any other form of interest or
participation including the promise of future employment in any
business enterprise or undertaking;
5. By establishing agricultural, industrial or commercial
monopolies or other combination and/or implementation of
decrees and orders intended to benefit particular persons or
special interests; or
6. By taking undue advantage of official position, authority,
relationship, connection or influence to unjustly enrich himself or
themselves at the expense and to the damage and prejudice of the
Filipino people and the Republic of the Philippines.6
On the other hand, Section 4 states:
Rule of Evidence - For purposes of establishing the crime of plunder, it
shall not be necessary to prove each and every criminal act done by the
accused in furtherance of the scheme or conspiracy to amass, accumulate
or acquire ill-gotten wealth, it being sufficient to establish beyond
reasonable doubt a pattern of overt or criminal acts indicative of the
overall unlawful scheme or conspiracy.
Petitioner’s theory
Petitioner asserts that R.A. No. 7080 is vague and overbroad on its face,
and suffers from structural deficiency and ambiguity.7 In sum, he
maintains that the law does not afford an ordinary person reasonable
notice that his actuation will constitute a criminal offense. More
particularly, petitioner argues that the terms "combination" and "series"
are not clearly defined, citing that in a number of cases, the United States
(U.S.) federal courts in deciding cases under the Racketeer Influenced
and Corrupt Organizations Act (RICO law), after which the Plunder Law
was patterned, have given different interpretations to "series of acts or
transactions."8 In addition, he terms "raid on the public treasury,"
"receiving or accepting a gift," "commission," "kickbacks," "illegal or
fraudulent conveyance or disposition of assets," "monopolies or other
combinations," "special interests," "taking undue advantage of official
position," "unjustly enrich" all suffer from overbreadth which is a form
of vagueness.9
In arguing that the law on plunder is vague and impermissibly broad,
petitioner points out that the terms "combination" and ‘series" used in the
phrase "any combination or series of the following means or similar
schemes" are not defined under the statute. The use of these terms in the
law allegedly raises several questions as to their meaning and import.
Petitioner posits the following queries: "Does it (referring to the term
"series") mean two, three, four, of the overt or criminal acts listed in
Section 1(d)? Would it mean two or more related enterprises falling
under at least two of the means or ‘similar schemes’ listed in the law,
or just a joint criminal enterprise? Would it require substantial identity
of facts and participants, or merely a common pattern of action? Would
it imply close connection between acts, or a direct relationship between
the charges? Does the term mean a factual relationship between acts or
merely a common plan among conspirators?"10
The term "combination" is allegedly equally equivocal. According to
petitioner, it is not clear from the law if said term covers time, place,
manner of commission, or the principal characters. Thus petitioner asks:
"Does it (referring to the term "combination") include any two or more
acts, whether legal or illegal, or does the law require that the
combination must include at least two of the ‘means or similar schemes’
laid down in R.A. 7080? Does it cover transactions that have occurred in
the same place or area, or in different places, no matter how far apart?
Does ‘combination’ include any two or more overt acts, no matter how
far apart in time, or does it contemplate acts committed within a short
period of time? Does the ‘combination’ cover the modus operandi of
the crimes, or merely the evidence to be used at the trial?"11
It is also argued that the phrase "pattern of overt or criminal acts
indicative of the overall scheme or conspiracy" adds to the vagueness of
the law because "pattern" is not defined therein and is not included in the
definition of the crime of plunder even though it is an essential element
of said crime.12
Petitioner also maintains that the Plunder Law violates the due process
clause and the constitutional presumption of innocence by lowering the
quantum of evidence necessary for proving the component elements of
plunder because Section 4 does not require that each and every criminal
act done by the accused in furtherance of the scheme or conspiracy be
proved, "it being sufficient to establish beyond reasonable doubt a
pattern of overt or criminal acts indicative of the overall unlawful
scheme or conspiracy."13
Finally, petitioner alleges that it is beyond the power of Congress to
delimit the reasonable doubt standard and to abolish the element of mens
rea in mala in se crimes by converting these to mala prohibita, thereby
making it easier for the prosecution to prove malversation, bribery, estafa
and other crimes committed by public officers since criminal intent need
not be established.14
Considering the infringement to the constitutionally-guaranteed right to
due process of an accused, petitioner contends that R.A. No. 7080 cannot
be accorded any presumption of constitutional validity.
Respondents’ theory
On the other hand, Respondents argue that the "particular elements
constituting the crime of plunder" are stated with "definiteness and
certainty," as follows:
(1) There is a public officer who acts by himself or in connivance
with members of his family, relatives by affinity or
consanguinity, business associates, subordinates or other persons;
(2) There is an amassing, accumulating or acquiring of ill-gotten
wealth;
(3) The total amount of ill-gotten wealth so amassed,
accumulated or acquired is at least Fifty Million Pesos
(P50,000,000.00); and
(4) The ill-gotten wealth, which is defined as any asset, property,
business enterprise or material possession of any person within
the purview of Section Two (2) of R.A. No. 7080, was acquired
by him directly or indirectly through dummies, nominees, agents,
subordinates, and/or business associates by any combination or
series of the means or similar schemes enumerated in Section
1(d).15
Moreover, Respondents maintain that assuming that there is some
vagueness in the law, it need not be declared unconstitutional but may be
clarified by judicial construction.16 Respondents further add that the
ordinary import of the terms combination" and "series" should prevail, as
can be gleaned from the deliberations of the Congress in the course of its
passage of the law. According to respondents, "series of overt criminal
acts" simply mean a repetition of at least two of any of those enumerated
acts found in Section 1(d) of R.A. 7080. And "combination" means a
product of combining of at least one of any of those enumerated acts
described in Section 1(d) with at least one of any of the other acts so
enumerated. Respondents score petitioner for arguing on the basis of
federal courts’ decisions on the RICO law, citing that the U.S. courts
have consistently rejected the contention that said law is void for being
vague.17
Respondents deny that the Plunder Law dispenses with the requirement
of proof beyond reasonable doubt. While there may be no necessity to
prove each and every other act done by the accused in furtherance of the
scheme to acquire ill-gotten wealth, it is still necessary for the
prosecution to prove beyond reasonable doubt the pattern of overt or
criminal acts indicative of the overall scheme or conspiracy, as well as
all the other elements of the offense of plunder.18 Respondents also point
out that conspiracy itself is not punishable under the Plunder Law, which
deals with conspiracy as a means of incurring criminal liability.19
Respondents likewise contend that it is within the inherent powers and
wisdom of the legislature to determine which acts are mala prohibita in
the same way that it can declare punishable an act which is inherently not
criminal in nature.20
In conclusion, Respondents assert that petitioner has failed to overcome
the presumption of constitutionality of R.A. No. 7080.
Petitioner’s Reply
Petitioner, in his Reply to Comment, draws attention to Section 4,
arguing that the provision states the "most important element, which is
the common thread that ties the component acts together: "a pattern of
overt or criminal acts indicative of the overall unlawful scheme or
conspiracy21 and raises the following questions:
(a) Reference is made to a "pattern of overt or criminal acts."
The disjunctive "or" is used. Will a pattern of acts, which
are overt but not criminal in themselves, be indicative of an
overall unlawful scheme or conspiracy?
(b) Under what specific facts or circumstances will a "pattern" be
"indicative" of the overall unlawful scheme or conspiracy?
(c) Under what specific facts or circumstances will the required
"pattern" or "scheme" even be said to be present or to exist?
(d) When is there an "unlawful scheme or conspiracy?"22
Issues raised in the oral arguments
Oral arguments were heard on September 18, 2001. At said hearing, the
Court defined the issues for resolution as follows:
1.) WHETHER R.A. NO. 7080 IS UNCONSTITUTIONAL FOR
BEING VAGUE;
2) WHETHER R.A. NO. 7080 REQUIRES LESS EVIDENCE
FOR PROVING THE PREDICATE CRIMES OF PLUNDER
AND THEREFORE VIOLATES THE RIGHT OF THE
ACCUSED TO DUE PROCESS; and
3) WHETHER PLUNDER AS DEFINED IN R.A. NO. 7080 IS
A MALUM PROHIBITUM AND IF SO, WHETHER IT IS
WITHIN THE POWER OF CONGRESS TO SO CLASSIFY
THE SAME.23
Thereafter, both parties filed their respective memoranda in which they
discussed the points which they raised in their earlier pleadings and
during the hearing.
I believe that there is merit in the petition.
A penal statute which violates constitutional
guarantees of individual rights is void.
Every law enacted by Congress enjoys a presumption of
constitutionality,24 and the presumption prevails in the absence of
contrary evidence.25 A criminal statute is generally valid if it does not
violate constitutional guarantees of individual rights.26 Conversely,
when a constitutionally protected right of an individual is in danger
of being trampled upon by a criminal statute, such law must be
struck down for being void.27
One of the fundamental requirements imposed by the Constitution upon
criminal statutes is that pertaining to clarity and definiteness. Statutes,
particularly penal laws, that fall short of this requirement have been
declared unconstitutional for being vague. This "void-for-vagueness"
doctrine is rooted in the basic concept of fairness as well as the due
process clause of the Constitution.
The Constitution guarantees both substantive and procedural due
process28 as well as the right of the accused to be informed of the nature
and cause of the accusation against him.29 A criminal statute should not
be so vague and uncertain that "men of common intelligence must
necessarily guess as to its meaning and differ as to its application.30
There are three distinct considerations for the vagueness doctrine. First,
the doctrine is designed to ensure that individuals are properly warned ex
ante of the criminal consequences of their conduct. This "fair notice"
rationale was articulated in United States v. Harriss:31
The constitutional requirement of definiteness is violated by a criminal
statute that fails to give a person of ordinary intelligence fair notice that
his contemplated conduct is forbidden by the statute. The underlying
principle is that no man shall be held criminally responsible for conduct
which he could not reasonably understand to be proscribed.32
Second, and viewed as more important, the doctrine is intended
to prevent arbitrary and discriminatory law enforcement.33 Vague
laws are invariably "standardless" and as such, they afford too great an
opportunity for criminal enforcement to be left to the unfettered
discretion of police officers and prosecutors.34 Third, vague laws fail to
provide sufficient guidance to judges who are charged with interpreting
statutes. Where a statute is too vague to provide sufficient guidance, the
judiciary is arguably placed in the position of usurping the proper
function of the legislature by "making the law" rather than interpreting
it.35
While the dictum that laws be clear and definite does not require
Congress to spell out with mathematical certainty the standards to which
an individual must conform his conduct,36 it is necessary that statutes
provide reasonable standards to guide prospective conduct.37 And where
a statute imposes criminal sanctions, the standard of certainty is
higher.38 The penalty imposable on the person found guilty of violating
R.A. No. 7080 is reclusion perpetua to death.39 Given such penalty, the
standard of clarity and definiteness required of R.A. No. 7080
is unarguably higher than that of other laws.40
Void-for-vagueness doctrine
applies to criminal laws.
A view has been proffered that "vagueness and overbreadth doctrines are
not applicable to penal laws."41 These two concepts, while related, are
distinct from each other.42 On one hand, the doctrine of overbreadth
applies generally to statutes that infringe upon freedom of speech.43 On
the other hand, the "void-for-vagueness" doctrine applies to criminal
laws, not merely those that regulate speech or other fundamental
constitutional rights.44 The fact that a particular criminal statute does not
infringe upon free speech does not mean that a facial challenge to the
statute on vagueness grounds cannot succeed.45
As earlier intimated, the "vagueness doctrine" is anchored on the
constitutionally-enshrined right to due process of law. Thus, as in this
case that the "life, liberty and property" of petitioner is involved, the
Court should not hesitate to look into whether a criminal statute has
sufficiently complied with the elementary requirements of definiteness
and clarity. It is an erroneous argument that the Court cannot apply the
vagueness doctrine to penal laws. Such stance is tantamount to saying
that no criminal law can be challenged however repugnant it is to
the constitutional right to due process.
While admittedly, penal statutes are worded in reasonably general terms
to accomplish the legislature’s objective of protecting the public from
socially harmful conduct, this should not prevent a vagueness challenge
in cases where a penal statute is so indeterminate as to cause the average
person to guess at its meaning and application. For if a statute infringing
upon freedom of speech may be challenged for being vague because such
right is considered as fundamental, with more reason should a
vagueness challenge with respect to a penal statute be allowed since the
latter involve deprivation of liberty, and even of life which, inarguably,
are rights as important as, if not more than, free speech.
It has been incorrectly suggested46 that petitioner cannot mount a "facial
challenge" to the Plunder Law, and that "facial" or "on its face"
challenges seek the total invalidation of a statute.47 Citing Broadrick v.
Oklahoma,48 it is also opined that "claims of facial overbreadth have
been entertained in cases involving statutes which, by their terms, seek to
regulate only spoken words" and that "overbreadth claims, if entertained
at all, have been curtailed when invoked against ordinary criminal laws
that are sought to be applied to protected conduct." For this reason, it is
argued further that "on its face invalidation of statutes has been described
as ‘manifestly strong medicine,’ to be employed ‘sparingly and only as a
last resort.’" A reading of Broadrick, however, shows that the doctrine
involved therein was the doctrine of overbreadth. Its application to the
present case is thus doubtful considering that the thrust at hand is to
determine whether the Plunder Law can survive the vagueness challenge
mounted by petitioner. A noted authority on constitutional law, Professor
Lockhart, explained that "the Court will resolve them (vagueness
challenges) in ways different from the approaches it has fashioned in the
law of overbreadth."49 Thus, in at least two cases,50 the U.S. courts
allowed the facial challenges to vague criminal statutes even if these did
not implicate free speech
In Kolender v. Lawson,51 petitioners assailed the constitutionality of a
California criminal statute which required persons who loiter or wander
on the streets to provide a credible and reasonable identification and to
account for their presence when requested by a peace officer under
circumstances that would justify a valid stop. The U.S. Supreme Court
held that said statute was unconstitutionally vague on its face within the
meaning of the due process clause of the Fourteenth Amendment
because it encourages arbitrary enforcement by failing to clarify what is
contemplated by the requirement that a suspect provide a "credible and
reasonable identification." Springfield vs. Oklahoma52 on the other hand
involved a challenge to a Columbus city ordinance banning certain
assault weapons. The court therein stated that a criminal statute may be
facially invalid even if it has some conceivable application. It went on to
rule that the assailed ordinance’s definition of "assault weapon" was
unconstitutionally vague, because it was "fundamentally irrational and
impossible to apply consistently by the buying public, the sportsman, the
law enforcement officer, the prosecutor or the judge."53
It is incorrect to state that petitioner has made "little effort to show the
alleged invalidity of the statute as applied to him, as he allegedly "attacks
‘on their face’ not only §§ 1(d)(1) and (2) of R.A. 7080 under which he
is charged, but also its other provisions which deal with plunder
committed by illegal or fraudulent disposition of government assets
(§1(d)(3)), acquisition of interest in business (§1(d)(4)), and
establishment of monopolies and combinations or implementation of
decrees intended to benefit particular persons or special interests (§
1(d)(5))."54 Notably, much of petitioner’s arguments dealt with the
vagueness of the key phrases "combination or series" and "pattern of
overt or criminal acts indicative of the overall unlawful scheme or
conspiracy" which go into the very nature of the crime for which he is
charged.
Taking into consideration that the Plunder Law is a penal statute that
imposes the supreme penalty of death, and that petitioner in this case
clearly has standing to question its validity inasmuch as he has been
charged thereunder and that he has been for sometime now painfully
deprived of his liberty, it behooves this Court to address the challenge on
the validity of R.A. No. 7080.
Men steeped in law find
difficulty in understanding plunder.
The basic question that arises, therefore, is whether the clauses in Section
2--
combination or series of overt or criminal acts as described in Section
1(d) hereof
and Section 1(d), which provides--
x x x by any combination or series of the following means or similar
schemes:
1) Through misappropriation, conversion, misuse, or malversation of
public funds or raids on the public treasury;
xxx
6) By taking undue advantage of official position, authority, relationship,
connection or influence to unjustly enrich himself or themselves at the
expense and to the damage and prejudice of the Filipino people and the
Republic of the Philippines.
as qualified by Section 4 which also speaks of the "scheme or
conspiracy to amass, accumulate or acquire ill-gotten wealth" and of
"a pattern of overt or criminal acts indicative of the overall unlawful
scheme or conspiracy," are clear enough that a person "of common
intelligence" need not guess at their meaning and differ as to their
application.
The above raise several difficult questions of meaning which go to the
very essence of the offense, such as:
a. How many acts would constitute a "combination or series?"
b. Must the acts alleged to constitute the "combination or series"
be similar in nature? Note that Section 1(d) speaks of "similar
schemes" while Section 4 speaks of "the scheme" and of "a
pattern of overt or criminal acts indicative of the overall unlawful
scheme or conspiracy."
c. Must the "combination or series" of "overt or criminal acts"
involving the aggregate amount of at least P50 million be
conceived as such a scheme or a "pattern of overt or criminal
acts" from inception by the accused?
d. What would constitute a "pattern"? What linkage must there be
between and among the acts to constitute a "pattern"? Need there
be a linkage as to the persons who conspire with one another, and
a linkage as to all the acts between and among them?
e. When Section 4 speaks of "indicative of the overall unlawful
scheme or conspiracy," would this mean that the "scheme" or
"conspiracy" should have been conceived or decided upon in its
entirety, and by all of the participants?
f. When committed in connivance "with members of his family,
relatives by affinity or consanguinity, business associates,
subordinates or other persons" or through "dummies, nominees,
agents, subordinates and/or business associates", would such fact
be part of the "pattern of overt or criminal acts" and of the
"overall unlawful scheme or conspiracy" such that all of those
who are alleged to have participated in the crime of plunder must
have participated in each and every act allegedly constituting the
crime of plunder? And as in conspiracy, conspired together from
inception to commit the offense?
g. Within what time frame must the acts be committed so as to
constitute a "combination or series"?
I respectfully disagree with the majority that "ascertainable standards and
well-defined parameters" are provided in the law55 to resolve these basic
questions.
Even men steeped in the knowledge of the law are in a quandary as to
what constitutes plunder. The Presiding Justice of the Sandiganbayan,
Justice Francis Garchitorena, admitted that the justices of said court
"have been quarrelling with each other in finding ways to determine
what [they] understand by plunder."56 Senator Neptali Gonzales also
noted during the deliberations of Senate Bill No. 733 that the definition
of plunder under the law is vague. He bluntly declared: "I am afraid
that it might be faulted for being violative of the due process clause and
the right to be informed of the nature and cause of the accusation of an
accused.57 Fr. Bernas, for his part, pointed to several problematical
portions of the law that were left unclarified. He posed the question:
"How can you have a 'series' of criminal acts if the elements that are
supposed to constitute the series are not proved to be criminal?"58
The meanings of "combination" and "series"
as used in R.A. No. 7080 are not clear.
Although the law has no statutory definition of "combination" or
"series", the majority is of the view that resort can be had to the ordinary
meaning of these terms. Thus, Webster's Third New International
Dictionary gives the meaning of "combination": "the result or product or
product of combining: a union or aggregate made of combining one
thing with another."59
In the context of R.A. No. 7080, "combination" as suggested by the
Solicitor General means that at least two of the enumerated acts found in
Section 1(d), i.e., one of any of the enumerated acts, combined with
another act falling under any other of the enumerated means may
constitute the crime of plunder. With respect to the term "series," the
majority states that it has been understood as pertaining to "two or more
overt or criminal acts falling under the same category"60 as gleaned from
the deliberations on the law in the House of Representatives and the
Senate.
Further, the import of "combination" or "series" can be ascertained, the
majority insists,61 from the following deliberations in the Bicameral
Conference Committee on May 7, 1991:
REP. ISIDRO: I am just intrigued again by our definition of plunder. We
say, THROUGH A COMBINATION OR SERIES OF OVERT OR
CRIMINAL ACTS AS MENTIONED IN SECTION ONE HEREOF.
Now when we say combination, we actually mean to say, if there are two
or more means, we mean to say that number one and two or number one
and something else are included, how about a series of the same act? For
example, through misappropriation, conversion, misuse, will these be
included also?
THE CHAIRMAN (REP. GARCIA): Yeah, because we say series.
REP. ISIDRO: Series.
THE CHAIRMAN (REP. GARCIA): Yeah, we include series.
REP. ISIDRO: But we say we begin with a combination.
THE CHAIRMAN: (REP. GARCIA): Yes.
REP. ISIDRO: When we say combination, it seems that-
THE CHAIRMAN (REP. GARCIA): Two.
REP. ISIDRO: Not only two but we seem to mean that two of the
enumerated means not twice of one enumeration.
THE CHAIRMAN: (REP. GARCIA): No, no, not twice.
REP. ISIDRO: Not twice?
THE CHAIRMAN (REP. GARCIA): Yes. Combination is not twice—
but combination, two acts.
REP. ISIDRO: So in other words, that’s it. When we say combination,
we mean two different acts. It can not be a repetition of the same act.
THE CHAIRMAN (REP. GARCIA): That be referred to series. Yeah.
REP. ISIDRO: No, no. Supposing one act is repeated, so there are two.
THE CHAIRMAN (REP. GARCIA): A series.
REP. ISIDRO: That’s not series. It’s a combination. Because when we
say combination or series, we seem to say that two or more, ‘di ba?
THE CHAIRMAN: (REP. GARCIA): Yes, This distinguishes it, really,
from the ordinary crimes. That is why, I said, that is a very good
suggestion because if it is only one act, it may fall under ordinary crime
but we have here a combination or series of overt or criminal acts. So…
HON. ISIDRO: I know what you are talking about. For example, through
misappropriation, conversion, misuse or malversation of public funds
who raids the public treasury, now, for example, misappropriation, if
there are a series of misappropriations?
xxx
THE CHAIRMAN (REP. GARCIA): Series. One after the other eh di…
THE CHAIRMAN (SEN TAÑADA): So that would fall under term
"series"?
THE CHAIRMAN (REP. GARCIA): Series, oo.
REP. ISIDRO: Now, if it is combination, ano, two misappropriations…
THE CHAIRMAN (REP. GARCIA): It’s not… two misappropriations
will not be combination. Series.
REP. ISIDRO: So, it is not a combination?
THE CHAIRMAN (REP. GARCIA): Yes.
REP. ISIDRO: When you say "combination", two different?
THE CHAIRMAN (REP. GARCIA): Yes.
THE CHAIRMAN (SEN. TAÑADA): Two different.
REP. ISIDRO: Two different acts.
THE CHAIRMAN (REP. GARCIA): For example, ha…
REP. ISIDRO: Now a series, meaning, repetition…62
The following deliberations in the Senate are pointed to by the
majority63 to show that the words "combination" and "series" are given
their ordinary meaning:
Senator Maceda. In line of our interpellations that sometimes "one" or
maybe even "two" acts may already result in such a big amount, on line
25, would the Sponsor consider deleting the words "a series of overt or".
To read, therefore: "or conspiracy COMMITTED by criminal acts such
as". Remove the idea of necessitating "a series". Anyway, the criminal
acts are in the plural.
Senator Tañada. That would mean a combination of two or more of the
acts mentioned in this.
The President. Probably, two or more would be….
Senator Maceda. Yes, because ‘a series’ implies several or many’ two or
more.
Senator Tañada. Accepted, Mr. President.
xxx
The President. If there is only one, then he has to be prosecuted under the
particular crime. But when we say ‘acts of plunder’ there should be, at
least, two or more.
Senator Romulo. In other words, that is already covered by existing laws,
Mr. President.64
To my mind, resort to the dictionary meaning of the terms "combination"
and "series" as well as recourse to the deliberations of the lawmakers
only serve to prove that R.A. No. 7080 failed to satisfy the strict
requirements of the Constitution on clarity and definiteness. Note that
the key element to the crime of plunder is that the public officer, by
himself or in conspiracy with others, amasses, accumulates, or acquires
"ill-gotten wealth" through a "combination or series of overt or criminal
acts" as described in Section 1(d) of the law. Senator Gonzales, during
the deliberations in the Senate, already raised serious concern over the
lack of a statutory definition of what constitutes "combination" or
"series", consequently, expressing his fears that Section 2 of R.A. No.
7080 might be violative of due process:
Senator Gonzales. To commit the offense of plunder, as defined in this
Act and while constituting a single offense, it must consist of a series of
overt or criminal acts, such as bribery, extortion, malversation of public
funds, swindling, illegal exaction, and graft or corrupt practices act and
like offenses. Now, Mr. President, I think, this provision, by itself will be
vague. I am afraid that it might be faulted for being violative of the due
process clause and the right to be informed of the nature and cause of
accusation of an accused. Because, what is meant by "series of overt or
criminal acts"? I mean, would 2, 3, 4 or 5 constitute a series? During the
period of amendments, can we establish a minimum of overt acts like,
for example, robbery in band? The law defines what is robbery in band
by the number of participants therein. In this particular case probably, we
can statutorily provide for the definition of "series" so that two, for
example, would that be already a series? Or, three, what would be the
basis for such determination?65(Emphasis supplied.)
The point raised by Senator Gonzales is crucial and well-taken. I share
petitioner’s observation that when penal laws enacted by Congress make
reference to a term or concept requiring a quantitative definition, these
laws are so crafted as to specifically state the exact number or percentage
necessary to constitute the elements of a crime. To cite a few:
"Band" – "Whenever more than three armed malefactors shall have acted
together in the commission of an offense, it shall be deemed to have been
committed by a band." (Article 14[6], Revised Penal Code)66
"Conspiracy" – "A conspiracy exists when two or more persons come to
an agreement concerning the commission of a felony and decide to
commit it." (Article 8, Revised Penal Code)67
"Illegal Recruitment by a Syndicate" – "Illegal recruitment is deemed
committed by a syndicate if carried out by a group of three (3) or more
persons conspiring and/or confederating with one another in carrying out
any unlawful or illegal transaction, enterprise or scheme x x x." (Section
38, Labor Code)
"Large-scale Illegal Recruitment" – "Illegal recruitment is deemed
committed in large scale if committed against three (3) or more persons
individually or as a group." (Section 38, Labor Code)
"Organized/Syndicated Crime Group" – "[M]eans a group of two or
more persons collaborating, confederating or mutually helping one
another for purposes of gain in the commission of any crime." (Article
62 (1)(1a), Revised Penal Code)68
"Swindling by a Syndicate" – "x x x if the swindling (estafa) is
committed by a syndicate consisting of five or more persons formed with
the intention of carrying out the unlawful or illegal act, transaction,
enterprise or scheme x x x ." (Section 1, P.D. No. 1689)69
The deliberations of the Bicameral Conference Committee and of the
Senate cited by the majority, consisting mostly of unfinished sentences,
offer very little help in clarifying the nebulous concept of plunder. All
that they indicate is that Congress seemingly intended to hold liable for
plunder a person who: (1) commits at least two counts of any one of the
acts mentioned in Section 1(d) of R.A. No. 7080, in which case, such
person commits plunder by a series of overt criminal acts; or (2) commits
at least one count of at least two of the acts mentioned in Section 1(d), in
which case, such person commits plunder by a combination of overt
criminal acts. Said discussions hardly provide a window as to the exact
nature of this crime.
A closer look at the exchange between Representatives Garcia and Isidro
and Senator Tañada would imply that initially, combination was intended
to mean "two or more means,"70 i.e., "number one and two or number
one and something else x x x,"71 "two of the enumerated means not twice
of one enumeration,"72 "two different acts."73Series would refer to "a
repetition of the same act."74 However, the distinction was again lost as
can be gleaned from the following:
THE CHAIRMAN (REP. GARCIA) Yes. Combination is not twice – but
combination, two acts.
REP. ISIDRO. So in other words, that’s it. When we say combination,
we mean, two different acts. It can not be a repetition of the same act.
THE CHAIRMAN (REP. GARCIA). That be referred to series. Yeah.
REP. ISIDRO. No, no. Supposing one act is repeated, so there are two.
THE CHAIRMAN (REP. GARCIA). A series.
REP. ISIDRO. That’s not series. It’s a combination. Because when we
say combination or series, we seem to say that two or more, ‘di ba?
THE CHAIRMAN (REP. GARCIA). Yes. This distinguishes it really the
ordinary --- That’s why I said, that’s a very good suggestion, because if
its’ only one act, it may fall under ordinary crime. But we have here a
combination or series, of overt or criminal acts" (Emphasis supplied).75
xxx
THE CHAIRMAN (REP. GARCIA P.) Series. One after the other eh
di…
THE CHAIRMAN (SEN. TAÑADA) So, that would fall under the term
"series"?
THE CHAIRMAN (REP. GARCIA P) Series, oo.
REP. ISIDRO. Now, if it is combination, ano, two misappropriations…
THE CHAIRMAN (REP. GARCIA) It’s not… two misappropriations
will not be combination. Series.
REP. ISIDRO. So, it is not a combination?
THE CHAIRMAN. (REP. GARCIA P.) Yes.
REP. ISIDRO. When we say "combination", two different?
THE CHAIRMAN (REP. GARCIA P.) Yes.
THE CHAIRMAN (SEN. TAÑADA) Two different.
REP. ISIDRO. Two different acts.
THE CHAIRMAN (REP. GARCIA P.) For example, ha…
REP. ISIDRO. Now a series, meaning, repetition…
THE CHAIRMAN (SEN. TAÑADA) Yes.
REP. ISIDRO. With that…
THE CHAIRMAN (REP. GARCIA P.) Thank you.
THE CHAIRMAN (SEN. TAÑADA) So, it could be a series of any of
the acts mentioned in paragraphs 1, 3, 4, 5 of Section 2 (d), or… 1 (d)
rather, or a combination of any of the acts mentioned in paragraph 1
alone, or paragraph 2 alone or paragraph 3 or paragraph 4.
THE CHAIRMAN (REP. GARCIA P.) I think combination
maybe…which one? Series?
THE CHAIRMAN (SEN. TAÑADA) Series or combination.
REP. ISIDRO. Which one, combination or series or series or
combination?
THE CHAIRMAN (SEN. TAÑADA) Okay. Ngayon doon sa definition,
ano, Section 2, definition, doon sa portion ng… Saan iyon? As
mentioned, as described…
THE CHAIRMAN (REP. GARCIA P.) Described. I think that is…
THE CHAIRMAN (SEN. TAÑADA) … better than "mentioned". Yes.
THE CHAIRMAN (REP. GARCIA P.) Okay?
REP. ISIDRO. Very good.
THE CHAIRMAN. (SEN. TAÑADA) Oo, marami pong salamat.
THE CHAIRMAN (REP. GARCIA P.) Maraming salamat po.
The meeting was adjourned at 1:33 p.m."76 (Emphasis supplied.)
The aforequoted deliberations, especially the latter part thereof, would
show a dearth of focus to render precise the definition of the terms.
Phrases were uttered but were left unfinished. The examples cited were
not very definite. Unfortunately, the deliberations were apparently
adjourned without the Committee members themselves being clear on
the concept of series and combination.
Moreover, if "combination" as used in the law simply refers to the
amassing, accumulation and acquisition of ill-gotten wealth amounting
to at least P50 Million through at least two of the means enumerated in
Section 1(d), and "series," to at least two counts of one of the modes
under said section, the accused could be meted out the death penalty for
acts which, if taken separately, i.e., not considered as part of the
combination or series, would ordinarily result in the imposition of
correctional penalties only. If such interpretation would be adopted, the
Plunder law would be so oppressive and arbitrary as to violate due
process and the constitutional guarantees against cruel or inhuman
punishment.77 The penalty would be blatantly disproportionate to the
offense. Petitioner’s examples illustrate this absurdity:
a. One act of indirect bribery (penalized under Art. 211 of the Revised
Penal Code with prision correccional in its medium and maximum
periods),
combined with -
one act of fraud against the public treasury (penalized under Art. 213 of
the Revised Penal Code with prision correccional in its medium period to
prision mayor in its minimum period).
equals –
Plunder (punished by reclusion perpetua to death plus forfeiture of assets
under R. A. 7080)
b. One act of prohibited transaction (penalized under Art. 215 of the
Revised Penal Code with prision correccional in its minimum period or a
fine ranging from P200 to P1,000 or both).
combined with –
one act of establishing a commercial monopoly (penalized under Art.
186 of Revised Penal Code with prision correccional in its minimum or a
fine ranging from P200 to P6,00, or both.
equals –
Plunder (punished by reclusion perpetua to death, and forfeiture of assets
under R.A. 7080).
c. One act of possession of prohibited interest by a public officer
(penalized with prision correccional in its minimum period or a fine of
P200 to P1,000, or both under Art. 216 of the Revised Penal Code).
combined with –
one act of combination or conspiracy in restraint of trade (penalized
under Art. 186 of the Revised Penal Code with prision correccional in its
minimum period, or a fine of P200 to P1,000, or both),
equals –
plunder (punished by reclusion perpetua to death, and forfeiture of
assets).78
The argument that higher penalties may be imposed where two or more
distinct criminal acts are combined and are regarded as special complex
crimes, i.e., rape with homicide, does not justify the imposition of the
penalty of reclusion perpetua to death in case plunder is committed.
Taken singly, rape is punishable by reclusion perpetua;79and homicide,
by reclusion temporal.80 Hence, the increase in the penalty imposed
when these two are considered together as a special complex crime is not
too far from the penalties imposed for each of the single offenses. In
contrast, as shown by the examples above, there are instances where the
component crimes of plunder, if taken separately, would result in the
imposition of correctional penalties only; but when considered as
forming part of a series or combination of acts constituting plunder,
could be punishable by reclusion perpetua to death. The disproportionate
increase in the penalty is certainly violative of substantive due process
and constitute a cruel and inhuman punishment.
It may also be pointed out that the definition of "ill-gotten wealth" in
Section 1(d) has reference to the acquisition of property (by the accused
himself or in connivance with others) "by any combination or series" of
the "means" or "similar schemes" enumerated therein, which include the
following:
xxx
4. By obtaining, receiving or accepting directly or indirectly any shares
of stock, equity or any other forms of interest or participation including
the promise of future employment or any business enterprise or
undertakings;
5. By establishing agricultural, industrial or commercial monopolies or
other combination and/or implementation of decrees and orders intended
to benefit particular persons or special interests;
xxx
The above-mentioned acts are not, by any stretch of the imagination,
criminal or illegal acts. They involve the exercise of the right to liberty
and property guaranteed by Article III, Section 1 of the Constitution
which provides that "No person shall be deprived of life, liberty or
property without due process of law, nor shall any person be denied the
equal protection of the laws." Receiving or accepting any shares of stock
is not per se objectionable. It is in pursuance of civil liberty, which
includes "the right of the citizen to be free to use his faculties in all
lawful ways; x x x to earn his livelihood by any lawful calling; to pursue
any avocation, and/or that purpose, to enter into all contracts which may
be proper, necessary and essential to his carrying out these purposes to a
successful conclusion.81 Nor is there any impropriety, immorality or
illegality in establishing agricultural, industrial or commercial
monopolies or other combination and/or implementation of decrees and
orders even if they are intended to benefit particular persons or special
interests. The phrases "particular persons" and "special interests" may
well refer to the poor,82the indigenous cultural
communities,83 labor,84 farmers,85 fisherfolk,86 women,87 or those
connected with education, science and technology, arts, culture and
sports.88
In contrast, the monopolies and combinations described in Article 186 of
the Revised Penal Code are punishable because, as specifically defined
therein, they are "on restraint of trade or commerce or to prevent by
artificial means of free competition in the market, or the object is "to
alter the price" of any merchandise "by spreading false rumors," or to
manipulate market prices in restraint of trade. There are no similar
elements of monopolies or combinations as described in the Plunder Law
to make the acts wrongful.
If, as interpreted by the Solicitor General, "series" means a "repetition"
or pertains to "two or more" acts, and "combination as defined in the
Webster’s Third New International Dictionary is "the result or product of
combining one thing with another,"89 then, the commission of two or
more acts falling under paragraphs (4) and (5) of Section 1(d) would
make innocent acts protected by the Constitution as criminal, and
punishable by reclusion perpetua to death.
R.A. No. 7080 does not define "pattern,"
an essential element of the crime of plunder.
Granting arguendo that, as asserted by the majority, "combination" and
"series" simplistically mean the commission of two or more of the acts
enumerated in Section 1(d),90 still, this interpretation does not cure the
vagueness of R.A. No. 7080. In construing the definition of "plunder,"
Section 2 of R.A. No. 7080 must not be read in isolation but rather, must
be interpreted in relation to the other provisions of said law. It is a basic
rule of statutory construction that to ascertain the meaning of a law, the
same must be read in its entirety.91 Section 1 taken in relation to Section
4 suggests that there is something to plunder beyond simply the number
of acts involved and that a grand scheme to amass, accumulate or acquire
ill-gotten wealth is contemplated by R.A. No. 7080. Sections 1 and 2
pertain only to the nature and quantitative means or acts by which a
public officer, by himself or in connivance with other persons, "amasses,
accumulates or acquires ill-gotten wealth." Section 4, on the other hand,
requires the presence of elements other than those enumerated in Section
2 to establish that the crime of plunder has been committed because it
speaks of the necessity to establish beyond reasonable doubt a "pattern of
overt or criminal acts indicative of the overall unlawful scheme or
conspiracy."
Clearly, it will not suffice that the "illegal wealth" amassed is at least
Fifty Million Pesos and that this was acquired by any two or more of the
acts described in Section 1(d); it is necessary that these acts constitute a
"combination or series" of acts done in furtherance of "the scheme or
conspiracy to amass, accumulate or acquire ill-gotten wealth", and which
constitute "a pattern of overt or criminal acts indicative of the overall
scheme or conspiracy."
That pattern is an essential element of the crime of plunder is evident
from a reading of the assailed law in its entirety. It is that which would
distinguish plunder from isolated criminal acts punishable under the
Revised Penal Code and other laws, for without the existence a "pattern
of overt or criminal acts indicative of the overall scheme or conspiracy"
to acquire ill-gotten wealth, a person committing several or even all of
the acts enumerated in Section 1(d) cannot be convicted for plunder, but
may be convicted only for the specific crimes committed under the
pertinent provisions of the Revised Penal Code or other laws.
For this reason, I do not agree that Section 4 is merely a rule of evidence
or a rule of procedure. It does not become such simply because its
caption states that it is, although its wording indicates otherwise. On the
contrary, it is of substantive character because it spells out a distinctive
element of the crime which has to be established, i.e., an overall
unlawful "scheme or conspiracy" indicated by a "pattern of overt or
criminal acts" or means or similar schemes "to amass, accumulate or
acquire ill-gotten wealth."
The meaning of the phrase "pattern of overt or criminal acts indicative of
the overall unlawful scheme or conspiracy," however, escapes me. As in
"combination" and "series," R.A. No. 7080 does not provide a definition
of "pattern" as well as "overall unlawful scheme." Reference to the
legislative history of R.A. No. 7080 for guidance as to the meanings of
these concepts would be unavailing, since the records of the deliberations
in Congress are silent as to what the lawmakers mean by these terms.
Resort to the dictionary meanings of "pattern" and "scheme" is, in this
case, wholly inadequate. These words are defined as:
pattern: an arrangement or order of things or activity.92
scheme: design; project; plot.93
At most, what the use of these terms signifies is that while multiplicity of
the acts (at least two or more) is necessary, this is not sufficient to
constitute plunder. As stated earlier, without the element of "pattern"
indicative of an "overall unlawful scheme," the acts merely constitute
isolated or disconnected criminal offenses punishable by the Revised
Penal Code or other special laws.
The commission of two or more of the acts falling under Section 1(d) is
no guarantee that they fall into a "pattern" or "any arrangement or order."
It is not the number of acts but the relationship that they bear to each
other or to some external organizing principle that renders them
"ordered" or "arranged":
A pattern is an arrangement or order of things, or activity, and the mere
fact that there are a number of predicates is no guarantee that they fall
into an arrangement or order. It is not the number of predicates but the
relationship that they bear to each other or to some external organizing
principle that renders them ‘ordered’ or ‘arranged.’ 94
In any event, it is hardly possible that two predicate acts can form a
pattern:
The implication is that while two acts are necessary, they may not be
sufficient. Indeed, in common parlance, two of anything will not
generally form a ‘pattern.’95
In H. J. Inc. v. Northwestern Bell Telephone Co. et al.96 (hereinafter
referred to as Northwestern), the U.S. Court reiterated the foregoing
doctrine:
xxx Nor can we agree with those courts that have suggested that a pattern
is established merely by proving two predicate acts.97
Respondents’ metaphorical illustration of "pattern" as a wheel with
spokes (the overt or criminal acts of the accused) meeting at a common
center (the acquisition of ill-gotten wealth) and with a rim (the overall
unlawful scheme or conspiracy) of the wheel enclosing the spokes, is off
tangent. Their position that two spokes suffice to make a wheel, even
without regard to the relationship the spokes bear to each other clearly
demonstrates the absurdity of their view, for how can a wheel with only
two spokes which are disjointed function properly?
That "pattern" is an amorphous concept even in U.S. jurisprudence
where the term is reasonably defined is precisely the point of the incisive
concurring opinion of Justice Antonin Scalia in Northwestern where he
invited a constitutional challenge to the RICO law on "void-for-
vagueness" ground.98 The RICO law is a federal statute in the United
States that provides for both civil and criminal penalties for violation
therefor. It incorporates by reference twenty-four separate federal crimes
and eight types of state felonies.99 One of the key elements of a RICO
violation is that the offender is engaged in a "pattern of racketeering
activity."100 The RICO law defines the phrase "pattern of racketeering
activity" as requiring "at least two acts of racketeering activity, one of
which occurred after the effective date of 18 USCS § 1961, and within
ten years (excluding any period of imprisonment) after the commission of
a prior act of racketeering activity."101 Incidentally, the Solicitor General
claims that R.A. No. 7080 is an entirely different law from the RICO
law. The deliberations in Congress reveal otherwise. As observed by
Rep. Pablo Garcia, Chairman of the House of Representatives
Committee on Justice, R.A. No. 7080 was patterned after the RICO
law.102
In Northwestern, conceding that "[the U.S. Congress] has done nothing .
. . further to illuminate RICO’s key requirement of a pattern of
racketeering," the U.S. Supreme Court, through Justice William J.
Brennan, Jr., undertook the task of developing a meaningful concept of
"pattern" within the existing statutory framework.103Relying heavily on
legislative history, the US Supreme Court in that case construed
"pattern" as requiring "continuity plus relationship."104 The US Supreme
Court formulated the "relationship requirement" in this wise: "Criminal
conduct forms a pattern if it embraces criminal acts that have the same or
similar purposes, results, participants, victims, or methods of
commission, or otherwise are interrelated by distinguishing
characteristics and are not isolated events."105 Continuity is clarified as
"both a closed and open-ended concept, referring either to a closed
period of repeated conduct, or to past conduct that by its nature projects
into the future with a threat of repetition."106
In his separate concurring opinion, Justice Scalia rejected the majority’s
formulation. The "talismanic phrase" of "continuity plus relationship" is,
as put by Justice Scalia, about as helpful as advising the courts that "life
is a fountain." He writes:
x x x Thus, when §1961(5) says that a pattern "requires at least two acts
of racketeering activity" it is describing what is needful but not
sufficient. (If that were not the case, the concept of "pattern" would have
been unnecessary, and the statute could simply have attached liability to
"multiple acts of racketeering activity"). But what that something more
is, is beyond me. As I have suggested, it is also beyond the Court.
Today’s opinion has added nothing to improve our prior guidance, which
has created a kaleidoscope of Circuit positions, except to clarify that
RICO may in addition be violated when there is a "threat of continuity."
It seems to me this increases rather than removes the vagueness. There is
no reason to believe that the Court of Appeals will be any more unified
in the future, than they have in the past, regarding the content of this law.
That situation is bad enough with respect to any statute, but it is
intolerable with respect to RICO. For it is not only true, as Justice
Marshall commented in Sedima, S.P.R.L. vs. Imrex Co., 473 U.S. 479 x x
x, that our interpretation of RICO has "quite simply revolutionize[d]
private litigation" and "validate[d] the federalization of broad areas of
state common law of frauds," x x x so that clarity and predictability in
RICO’s civil applications are particularly important; but it is also true
that RICO, since it has criminal applications as well, must, even in its
civil applications, possess the degree of certainty required for criminal
laws x x x. No constitutional challenge to this law has been raised in the
present case, and so that issue is not before us. That the highest court in
the land has been unable to derive from this statute anything more than
today’s meager guidance bodes ill for the day when that challenge is
presented.107
It bears noting that in Northwestern the constitutionality of the RICO law
was not challenged.108 After Northwestern,the U.S. Supreme Court has
so far declined the opportunity to hear cases in which the void-for-
vagueness challenge to the pattern requirement was raised.109
Admittedly, at the district courts level, the state statutes (referred to as
Little RICOS)110 have so far successfully survived constitutional
challenge on void-for-vagueness ground. However, it must be
underscored that, unlike R.A. No. 7080, these state anti-racketeering
laws have invariably provided for a reasonably clear, comprehensive
and understandable definition of "pattern."111 For instance, in one
state, the pattern requirement specifies that the related predicate acts
must have, among others, the same or similar purpose, result, principal,
victims or methods of commission and must be connected with
"organized crime.112 In four others, their pattern requirement provides
that two or more predicate acts should be related to the affairs of the
enterprise, are not isolated, are not closely related to each other and
connected in point of time and place, and if they are too closely related,
they will be treated as a single act.113 In two other states, pattern
requirements provide that if the acts are not related to a common scheme,
plan or purpose, a pattern may still exist if the participants have the
mental capacity required for the predicate acts and are associated with
the criminal enterprise.114
All the foregoing state statutes require that the predicate acts be related
and that the acts occur within a specified time frame.
Clearly, "pattern" has been statutorily defined and interpreted in
countless ways by circuit courts in the United States. Their divergent
conclusions have functioned effectively to create variant criminal
offenses.115 This confusion has come about notwithstanding that almost
all these state laws have respectively statutorily defined "pattern". In
sharp contrast, R.A. No. 7080, as earlier pointed out, lacks such
crucial definition. As to what constitutes pattern within the meaning of
R.A. No. 7080 is left to the ad hoc interpretation of prosecutors and
judges. Neither the text of R.A. No. 7080 nor legislative history afford
any guidance as to what factors may be considered in order to prove
beyond reasonable doubt "pattern of overt or criminal acts indicative of
the overall unlawful scheme or conspiracy."
Be that as it may, it is glaringly fallacious to argue that "series" simply
means a "repetition" or "pertaining to two or more" and "combination" is
the "result or product or product of combining." Whether two or more or
at least three acts are involved, the majority would interpret the phrase
"combinations' or "series" only in terms of number of acts committed.
They entirely overlook or ignore Section 4 which requires "a pattern of
overt of criminal acts indicative of the overall unlawful scheme or
conspiracy" to convict.
If the elements of the offense are as what the majority has suggested, the
crime of plunder could have been defined in the following manner:
Where a public official, by himself or in conspiracy with others, amasses
or acquires money or property by committing two or more acts in
violation of Section 3 of the Anti-Graft and Corrupt Practices Act (R.A.
3019), or Articles 210, 211, 212, 213, 214, 215, 216 and 217 of the
Revised Penal Code, he shall be guilty of the crime of plunder and shall
be punished by reclusion perpetua to death.
The above would be a straightforward and objective definition of the
crime of plunder. However, this would render meaningless the core
phrases "a combination or series of" "overt or criminal acts indicative of
the overall unlawful scheme or conspiracy," or the phrase "any
combination or series of the following means or similar schemes" or "a
pattern of overt or criminal acts indicative of the overall unlawful
scheme or conspiracy."
But that obviously is not the definition of the crime of plunder under
R.A. 7080. There is something more. A careful reading of the law would
unavoidably compel a conclusion that there should be a connecting link
among the "means or schemes" comprising a "series or combination" for
the purpose of acquiring or amassing "ill-gotten wealth." The bond or
link is an "overall unlawful scheme or conspiracy mentioned in Section
4. The law contemplates a combination or series of criminal acts in
plunder done by the accused "in furtherance of the scheme or conspiracy
to amass, accumulate or acquire ill-gotten wealth." It does not postulate
acts committed randomly, separately or independently or
sporadically. Otherwise stated, if the legislature intended to define
plunder as the acquisition of ill-gotten wealth in the manner espoused by
the majority, the use in R.A. 7080 of such words and phrases as
"combination" and "series of overt or criminal acts" xxx "in furtherance
of the scheme or conspiracy" is absolutely pointless and meaningless.
R.A. No. 7080 makes it possible for a person
conspiring with the accused in committing
one of the acts constituting the charge
of plunder to be convicted for the same crime.
Section 2 of R.A. No. 7080 states that "[a]ny person who participated
with the said public officer in the commission of an offense contributing
to the crime of plunder shall likewise be punished for such offense. In
the imposition of penalties, the degree of participation and the attendance
of mitigating and extenuating circumstances, as provided by the Revised
Penal Code, shall be considered by the court." Both parties share the
view that the law as it is worded makes it possible for a person who
participates in the commission of only one of the component crimes
constituting plunder to be liable as co-conspirator for plunder, not merely
the component crime in which he participated.116 While petitioner
concedes that it is easy to ascertain the penalty for an accomplice or
accessory under R.A. No. 7080, such is not the case with respect to a co-
principal of the accused.117 In other words, a person who conspires with
the accused in the commission of only one of the component crimes may
be prosecuted as co-principal for the component crime, or as co-principal
for the crime of plunder, depending on the interpretation of the
prosecutor. The unfettered discretion effectively bestowed on law
enforcers by the aforequoted clause in determining the liability of the
participants in the commission of one or more of the component crimes
of a charge for plunder undeniably poses the danger of arbitrary
enforcement of the law.118
R.A. No. 7080 does not clearly state
the prescriptive period of the crime of plunder.
Section 6 of R.A. No. 7080 provides that the crime punishable under said
Act shall prescribe in twenty (20) years. Considering that the law was
designed to cover a "combination or series of overt or criminal acts," or
"a pattern of overt or criminal acts," from what time shall the period of
prescription be reckoned? From the first, second, third or last act of the
series or pattern? What shall be the time gap between two succeeding
acts? If the last act of a series or combination was committed twenty or
more years after the next preceding one, would not the crime have
prescribed, thereby resulting in the total extinction of criminal liability
under Article 89(b) of the Revised Penal Code? In antithesis, the RICO
law affords more clarity and definiteness in describing "pattern of
racketeering activity" as "at least two acts of racketeering activity, one of
which occurred within ten years (excluding any period of imprisonment)
after the commission of a prior act of racketeering activity."119119 119
The U.S. state statutes similarly provide specific time frames within
which racketeering acts are committed.
The Solicitor General enjoins the Court to rectify the deficiencies in the
law by judicial construction. However, it certainly would not be feasible
for the Court to interpret each and every ambiguous provision without
falling into the trap of judicial legislation. A statute should be
construed to avoid constitutional question only when an alternative
interpretation is possible from its language.120 Borrowing from the
opinion of the court121 in Northwestern,122 the law "may be a poorly
drafted statute; but rewriting it is a job for Congress, if it so inclined,
and not for this Court." But where the law as the one in question is void
on its face for its patent ambiguity in that it lacks comprehensible
standards that men of common intelligence must necessarily guess at its
meaning and differ as to its application, the Court cannot breathe life to it
through the guise of construction.
R.A. No. 7080 effectively eliminates mens rea
or criminal intent as an element of the crime of plunder.
Section 4 provides that for the purpose of establishing the crime of
plunder, "it shall not be necessary to prove each and every criminal act
done by the accused in furtherance of the scheme or conspiracy to amass,
accumulate or acquire ill-gotten wealth, it being sufficient to establish
beyond reasonable a pattern of overt or criminal acts indicative of the
overall unlawful scheme or conspiracy."
The majority would interpret this section to mean that the prosecution
has the burden of "showing a combination or series resulting in the crime
of plunder." And, once the minimum requirements for a combination or a
series of acts are met, there is no necessity for the prosecution to prove
each and every other act done by the accused in furtherance of the
scheme or conspiracy to amass, accumulate, or acquire ill-gotten
wealth.123
By its language, Section 4 eliminates proof of each and every component
criminal act of plunder by the accused and limits itself to establishing
just the pattern of overt or criminal acts indicative of unlawful scheme or
conspiracy. The law, in effect, penalizes the accused on the basis of a
proven scheme or conspiracy to commit plunder without the necessity of
establishing beyond reasonable doubt each and every criminal act done
by the accused in the crime of plunder. To quote Fr. Bernas again: "How
can you have a ‘series’ of criminal acts if the elements that are supposed
to constitute the series are not proved to be criminal?"124
Moreover, by doing away with proof beyond reasonable doubt of each
and every criminal act done by the accused in the furtherance of the
scheme or conspiracy to acquire ill-gotten wealth, it being sufficient just
to prove a pattern of overt or criminal acts indicative of the overall
unlawful scheme or conspiracy, the Plunder Law effectively eliminated
the mens rea or criminal intent as an element of the crime. Because of
this, it is easier to convict for plunder and sentence the accused to death
than to convict him for each of the component crimes otherwise
punishable under the Revised Penal Code and other laws which are
bailable offenses. The resultant absurdity strikes at the very heart if the
constitutional guarantees of due process and equal protection.
Plunder is a malum in se.
The acts enumerated in Section 1(d) are mostly defined and penalized by
the Revised Penal Code, e.g. malversation, estafa, bribery and other
crimes committed by public officers. As such, they are by nature mala in
secrimes. Since intent is an essential element of these crimes, then, with
more reason that criminal intent be established in plunder which, under
R.A. No. 7659, is one of the heinous crimes125 as pronounced in one of
its whereas clauses.126
The fact that the acts enumerated in Section 1(d) of R.A. 7080 were
made criminal by special law does not necessarily make the same mala
prohibita where criminal intent is not essential, although the term refers
generally to acts made criminal by special laws. For there is a marked
difference between the two. According to a well-known author on
criminal law:
There is a distinction between crimes which are mala in se, or wrongful
from their nature, such as theft, rape, homicide, etc., and those that
are mala prohibita, or wrong merely because prohibited by statute, such
as illegal possession of firearms.
Crimes mala in se are those so serious in their effects on society as to
call for almost unanimous condemnation of its members; while
crimes mala prohibita are violations of mere rules of convenience
designed to secure a more orderly regulation of the affairs of society.
(Bouvier’s Law Dictionary, Rawle’s 3rd Revision)
(1) In acts mala in se, the intent governs; but in those mala prohibit the
only inquiry is, has the law been violated? (People vs. Kibler, 106 N.Y.,
321, cited in the case of U.S. vs. Go Chico, 14 Phil. 132)
Criminal intent is not necessary where the acts are prohibited for reasons
of public policy, as in illegal possession of firearms. (People vs. Conosa,
C.A., 45 O.G. 3953)
(2) The term mala in se refers generally to felonies defined and penalized
by the Revised Penal Code. When the acts are inherently immoral, they
are mala in se, even if punished by special laws. On the other hand, there
are crimes in the Revised Penal Code which were originally defined and
penalized by special laws. Among them are possession and use of opium,
malversation, brigandage, and libel.127
The component acts constituting plunder, a heinous crime, being
inherently wrongful and immoral, are patently mala in se, even if
punished by a special law and accordingly, criminal intent must clearly
be established together with the other elements of the crime; otherwise,
no crime is committed. By eliminating mens rea, R.A. 7080 does not
require the prosecution to prove beyond reasonable doubt the component
acts constituting plunder and imposes a lesser burden of proof on the
prosecution, thus paving the way for the imposition of the penalty
of reclusion perpetua to death on the accused, in plain violation of the
due process and equal protection clauses of the Constitution. Evidently,
the authority of the legislature to omit the element of scienter in the
proof of a crime refers to regulatory measures in the exercise of police
power, where the emphasis of the law is to secure a more orderly
regulations of the offense of society, rather than the punishment of the
crimes. So that in mala prohibita prosecutions, the element of criminal
intent is a requirement for conviction and must be provided in the special
law penalizing what are traditionally mala in se crimes. As correctly
pointed out by petitioner,128 citing U.S. Supreme Court decisions, the
Smith Act was ruled to require "intent" to advocate129 and held to require
knowledge of illegal advocacy.130 And in another case,131 and ordinance
making illegal the possession of obscene books was declared
unconstitutional for lack of scienter requirement.
Mens rea is a substantive due process requirement under the
Constitution, and this is a limitation on police power. Additionally, lack
of mens rea or a clarifying scienter requirement aggravates the
vagueness of a statute.
In Morisette v. U.S.132 the U.S. Supreme Court underscored the
stultifying effect of eliminating mens rea, thus:
The Government asks us by a feat of construction radically to change the
weights and balances in the scales of justice. The purpose and obvious
effect of doing away with the requirement of a guilty intent is to ease the
prosecution’s party to conviction, to strip the defendant of such benefit
as he derived at common law from innocence of evil purpose, and to
circumscribe the freedom heretofore allowed juries. Such a manifest
impairment of the immunities of the individual should not be extended to
common law crimes on judicial initiative.
In the same breath, Justice Florenz Regalado expreses serious doubts as
to the authority of the legislature to complex mala in se crimes with mala
prohibita, saying:
x x x although there has been a tendency to penalize crimes under special
laws with penalties "borrowed" from the Code, there is still the question
of legislative authority to consolidate crimes punished under different
statutes. Worse, where one is punished under the Code and the other by
the special law, both of these contingencies had not been contemplated
when the concept of a delito complejo was engrafted into the Code.133
Petitioner is not estopped from questioning
the constitutionality of R.A. No. 7080.
The case at bar has been subject to controversy principally due to the
personalities involved herein. The fact that one of petitioner’s
counsels134 was a co-sponsor of the Plunder Law135 and petitioner
himself voted for its passage when he was still a Senator would not in
any put him in estoppel to question its constitutionality. The rule on
estoppel applies to questions of fact, not of law.136 Moreover, estoppel
should be resorted to only as a means of preventing injustice.137 To hold
that petitioner is estopped from questioning the validity of R.A. No. 7080
because he had earlier voted for its passage would result in injustice not
only to him, but to all others who may be held liable under this statute.
In People vs. Vera,138 citing the U.S. case of Attorney General v.
Perkins, the Court held:
x x x The idea seems to be that the people are estopped from questioning
the validity of a law enacted by their representatives; that to an
accusation by the people of Michigan of usurpation upon their
government, a statute enacted by the people of Michigan is an adequate
statute relied on in justification is unconstitutional, it is a statute only in
form, and lacks the force of law, and is of no more saving effect to
justify action under it it had never been enacted. the constitution is the
supreme law, and to its behests the courts, the legislature, and the people
must bow. x x x139
The Court should not sanction the use of an equitable remedy to defeat
the ends of justice by permitting a person to be deprived of his life and
liberty under an invalid law.
Undoubtedly, the reason behind the enactment of R.A. 7080 is
commendable. It was a response to the felt need at the time that existing
laws were inadequate to penalize the nature and magnitude of corruption
that characterized a "previous regime."140 However, where the law, such
as R.A. 7080, is so indefinite that the line between innocent and
condemned conduct becomes a matter of guesswork, the indefiniteness
runs afoul of due process concepts which require that persons be given
full notice of what to avoid, and that the discretion of law enforcement
officials, with the attendant dangers of arbitrary and discriminatory
enforcement, be limited by explicit legislative standards.141 It obfuscates
the mind to ponder that such an ambiguous law as R.A. No. 7080 would
put on the balance the life and liberty of the accused against whom all
the resources of the State are arrayed. It could be used as a tool against
political enemies and a weapon of hate and revenge by whoever wields
the levers of power.
I submit that the charge against petitioner in the Amended Information in
Criminal Case No. 26558 does not constitute "plunder" under R.A. No.
7080, as amended by R.A. No. 7659. If at all, the acts charged may
constitute offenses punishable under the Anti-Graft and Corrupt
Practices Act (R.A. No. 3019) or the Revised Penal Code. Hence, the
information charging petitioner with plunder must be quashed. Such
quashal, however, should be without prejudice to the filing of new
informations for acts under R.A. No. 3019, of the Revised Penal Code
and other laws. Double jeopardy would not bar the filing of the same
because the dismissal of the case is made with the express consent of the
petitioner-accused.142
In view of the foregoing, I vote to GRANT the petition.
Footnotes
1
Joaquin G. Bernas, S.J., Prejudging the Supreme Court, in his
column "Sounding Board", Today, September 26, 2001, p. 6.
2
An Act to Impose the Death Penalty on Certain Heinous
Crimes, amending for that purpose the Revised Penal Code and
Other Special Penal Laws, namely: Dangerous Drugs Act, Crime
of Plunder, and Anti-Carnapping Act (1993).
3
87 O.G. 38, pp. 5488-5490 (1991).
4
Annex "C" of Petition.
5
Amended Petition, p. 8.
6
Section 1(d).
7
Memorandum for Petitioner, p.11.
8
Amended Petition., pp. 13-17; Memorandum for Petitioner, pp.
16-24.
According to petitioners:
a. While American federal courts in the First Circuit in
the U.S. have defined "series of acts or transactions" for
purposes of Rule 8(b) of the Federal Rules of Criminal
Procedure to refer only to "joint criminal enterprise"
[U.S. v. Turkette (1980, CA 1 Mass. 632 F 2d 896)] under
a common scheme [U.S. v. J. Tirocchi & Sons,
Inc. (1960 DC RI) 187 F. Supp. 778], the courts in
the Second Circuit insist that "series of acts and
transactions" should mean that there should be
"connection between the offenses" [U.S. v.
Charney (1962, SD BY) 211 F. Supp. 904] or "direct
relationship between counts" [U.S. v. Haim (1963 SD
NY), 218 F. Supp. 922] or "substantial identity of facts
and participants" [U.S. v. Olin Corp. (1979, WD NY),
465 S. Supp. 1120].
b. Still on the U.S. Federal courts, the courts in the Third
Circuit define "series of acts" following the "direct
relationship between acts" standard of the Second
Circuit; for example, U.S. v. Stafford (1974, ED Pa.), 382
F. Supp. 1401) using "factual relationship between
acts"; U.S. v. Slawik (1975, DC Del.) 408 F. Supp. 190,
using "connection between charges"; U.S. v. Cohen
(1978, ED Pa.) 444 F. Supp. 1314, using "direct
relationship between offenses"; and U.S. v. Serubo
(1978, ED Pa.) 460 F. Supp. 689), using "direct
relationship between offenses", but the federal courts in
the Fourth Circuit follow the "common scheme"
standard, as in Rakes v. U.S. (169 F2d 730).
c. The Sixth Circuit courts define "series" to mean
"common scheme" (e.g. U.S. v. Russo (480 F2d 1228)
and so do the courts in the Seventh Circuit (e.g. U.S. v.
Scott, (1969, CA 7 Ill.) (413 F2d 932), and Eighth
Circuit Courts (e.g. Haggard v. U.S. (1966, CA 8 Mo.)
369 F2d 968), but the courts in the Fifth Circuit follow
the "close connection between acts" standard, (e.g. U.S.
v. Laca (1974 CA 5 Tex) 593 F2d 615) or "substantial
identity of facts and participants" (e.g. U.S. v. Levine
(1977 CA 5 Fla.) 546 F2d 658; U.S. v. Marionneaux
(1975 CA 5 La.) 514 F2d 1244) together with federal
courts in the Ninth Circuit (e.g. U.S. v. Ford (1980 CA 9
Cal..) 632 F2d 1354) and those in the District of
Columbia Circuit (U.S. v. Jackson (1977) 562 F2d 789;
U.S. v. Bachman, (1958 DC Dist. Col.) 164 F. Suppl.
898). [Amended Petition, pp. 14-16; Memorandum for
Petitioner, pp. 20-22.]
9
Amended Petition, pp. 18-19; Memorandum for Petitioner, pp. reasonableness. Correctly it has been identified as
34-45. freedom from arbitrariness. It is the embodiment of the
10
Id., at 13-14; Id., at 19. sporting idea of fair play. It exacts fealty 'to those
11
Id., at 16-17; Id., at 23. strivings for justice' and judges the act of officialdom of
12
Id., at 25-34. whatever branch 'in the light of reason drawn from
13
Id., at 27-31;Id., at. 66-76. considerations of fairness that reflect [democratic]
14
Id., at 27-35; Id.,. at 76-83. traditions of legal and political thought.' It is not a narrow
15
Comment, pp. 11-13; Memorandum for Respondents, pp. 30- or 'technical conception with fixed content unrelated to
32. time, place and circumstances,' decisions based on such a
16
Ibid.; Id., at 49-50. clause requiring a 'close and perceptive inquiry into
17
Id., at 13-25; Id., at 58-59. fundamental principles of our society." Questions of due
18
Id., at 28-33; Id.., at 70-77. process are not to be treated narrowly or pedantically in
19
Id., at 33-34. slavery to form or phrases (at pp. 860-861).
20 29
Comment, pp. 37-42; Memorandum for Respondents, pp. 82- ART. III, Section 14.
30
84. People v. Nazario, 165 SCRA 186 (1988).
21 31
Reply to Comment, p. 12. 347 U.S. 612 (1954).
22 32
Id., at 14-15. Id., at 617.
23 33
TSN, Hearing on oral arguments, September 18, 2001, pp. 2-3. Kolender v. Lawson, 461 U.S. 352 (1983).
24 34
Tan vs. People, 290 SCRA 117 (1998); see also Padilla vs. Ibid.
35
Court of Appeals, 269 SCRA 402 (1997). See Grayned v. City of Rockford, 408 U.S. 104 (1972).
25 36
Morfe vs. Mutuc, 22 SCRA 424 (1968). Ibid.
26 37
State v. Vogel, 467 N.W.2d 86 (1991). Kolender, supra.
27 38
See Id. Ibid.
28 39
ART. III, Sections 1, 12 and 14. Section 2.
40
In Ermita-Malate Hotel and Motel Operators Association, See FCC v. American Broadcasting Co., 347 US 284 (1954).
41
Inc. vs. City Mayor of Manila (20 SCRA 849 [1967]), the See Dissenting Opinion of Justice Vicente V. Mendoza, pp. 10-
Court expounded on the concept of due process as 12.
42
follows: RELATIONS BETWEEN VAGUENESS AND
x x x What then is the standard of due process which must OVERBREADTH – THE VOID FOR VAGUE DOCTRINE,
exist both as a procedural and a substantive requisite to American Constitutional Law (2nd) (1998), p. 1033
free the challenged ordinance, or any governmental action citing Lanzetta v. New Jersey, 306 U.S. 451 (1939). See
for that matter, from the imputation of legal infirmity also Springfield Armory, Inc. v City of Columbus, 29 F.3d 250,
sufficient to spell its doom? It is responsiveness to the 1994 FED App 239P (6th Cir. 1994); Connally v. General
supremacy of reason, obedience to the dictates of justice. Construction Company, 269 U.S. 385 (1926); Lambert v.
Negatively put, arbitrariness is ruled out and unfairness California, 355 U.S. 225 1957); Kolender v. Lawson, supra.
43
avoided. To satisfy the due process requirement, official THE OVERBREADTH DOCTRINE, Treatise on
action, to paraphrase Cardozo, must not outrun the bounds Constitutional Law – Substance and Procedure, Vol. IV (1992),
of reason and result in sheer oppression. Due process is pp. 25-31; 36-37.
44
thus hostile to any official action marred by lack of See Note 42.
45
Springfield Armory, Inc. v City of Columbus, supra. several offenses. This would mean that the prosecution
46
See Concurring Opinion of Justice Vicente V. Mendoza, pp. must weave a web of offenses out of the six ways of
10-12. illegally amassing wealth and show how the various acts
47
RELATIONS BETWEEN VAGUENESS AND reveal a combination or series of means or schemes which
OVERBREADTH – THE VOID FOR VAGUE DOCTRINE, reveal a pattern of criminality. My understanding is that
American Constitutional Law (2nd) [1998], p. 1033 under such a reading the six ways of amassing wealth
citing Lanzetta v. New Jersey, 306 U.S. 451 [1939]. See should not be seen as separate from each other but must
also Springfield Armory, Inc. v City of Columbus, 29 F.3d 250, be shown to be parts of one combination or scheme. The
1994 FED App 239P [6th Cir. 1994]; Connally v. General interrelationship of the separate acts must be shown.
Construction Company, 269 U.S. 385 [1926]; Lambert v. An alternate reading of the law, which is perhaps easier to
California, 355 U.S. 225 [1957]; Kolender v. Lawson, 461 U.S. prove but harsher on the accused, is that each one of the
352 [1953]. six ways of amassing wealth can constitute plunder if the
48
413 U.S. 601 [1973]. total take adds up to the required P75 million.
49
VAGUENESS AND OVERBREADTH, AN OVERVIEW, xxx
Lockhart et al. Constitutional Law, Cases-Comments-Questions There is another provision in the law which I find
[6th Ed, 1986], p. 740. intriguing. It says: "For purposes of establishing the crime
50
Springfield v. Oklahoma, supra; Kolender v. Lawson, supra. of plunder, it shall not be necessary to prove each and
51
Supra. every criminal act done by the accused in furtherance of
52
Supra. the scheme or conspiracy to amass, accumulate or acquire
53
At p. 253. ill-gotten wealth, it being sufficient to establish beyond
54
See Concurring Opinion of Justice Mendoza, p. 5. reasonable doubt a pattern of overt criminal acts
55
See Decision, p. 7. indicative of the overall unlawful scheme or conspiracy."
56
The transcript of Stenographic Notes of the Hearing in Is this an indication that there is only one crime of
Criminal Case No. 26561 on June 13, 2001, p. 16 reads: plunder under the statute?
PJ Garchitorena: Fr. Bernas also discussed the vagueness of "combination"
xxx or "series" in the July 1, 2001 issue of Today:
But you see, I will provoke you. Forgive us for provoking Taken individually, the elements that are supposed to
you, but we ourselves have been quarrelling with each constitute the series can be well understood. But now the
other in finding ways to determine what we understand by Estrada lawyers are asking when precisely these elements
plunder. constitute a "combination or series". The question is
xxx important because of an intriguing provision in the
57
Infra. plunder law: "For purposes of establishing the crime of
58
In his column on the April 25, 2001 issue of Today, Fr. Bernas plunder, it shall not be necessary to prove each and every
stated: criminal act done by the accused in furtherance of the
xxx scheme or conspiracy to amass, accumulate or acquire ill-
One question that has come up is whether a public official gotten wealth, it being sufficient to establish beyond
can commit more than one crime of plunder during his or reasonable doubt a pattern of overt criminal acts
her incumbency. There are those who hold that the law indicative of the overall unlawful scheme or conspiracy."
describes only one crime and that it cannot be split into How can you have a "series of criminal acts if the
 78
elements that are supposed to constitute the series are not Reply to Comment, pp.16-18; Memorandum for Petitioner, pp.
proved to be criminal? 62-63.
59 79
Decision, p. 12. Article 335, Revised Penal Code.
60 80
Id., at 14. Article 249, Revised Penal Code.
61 81
Decision, pp. 12-14. Rubi vs. Provincial Board of Mindoro, 39 Phil 660 (1919).
62 82
RECORD OF THE JOINT CONFERENCE MEETING See Article XIII, Section 1 and 2, Constitution.
83
COMMITTEE ON JUSTICE AND COMMITTEE ON Id., at Section 6.
84
CONSTITUTIONAL AMENDMENTS (S. No. 733 & H. No. Id., at Section 3.
85
22752), May 7, 1991, pp. 39-40. Id., at Section 5.
63 86
Decision, p. 14. Id., at Section 7.
64 87
RECORDS OF THE SENATE, June 6, 1989, pp. 92-93. Id., at Section 14.
65 88
RECORDS OF THE SENATE, June 5, 1989, pp. 34. See Article XIV, Constitution..
66 89
Reply to Comment, p. 33. Comment, p. 13.
67 90
Ibid. Decision, pp. 14-15.
68 91
Id. Alpha Investigation and Security Agency, 272 SCRA 653
69
Id. (1997).
70 92
RECORD OF THE JOINT CONFERENCE MEETING 11 Oxford English Dictionary 357 (2d ed 1989).
COMMITTEE ON JUSTICE AND COMMITTEE ON 93
Webster’s Third New International Dictionary, p. 2029 (1976).
94
CONSTITUTIONAL AMENDMENTS (S. No. 733 & H. No. H.J. Inc., et al. v. Northwestern Bell Telephone Co., et al., 492
22752), May 7, 1991, p. 40. US 229 (1989)
71 95
Ibid. Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479 (1985).
72 96
Id. Supra.
73 97
Id. Id., at 236.
74 98
Id. Justice Scalia was joined by Chief Justice Rehnquist, Justices
75
Id., at 40-41. O’Connor and Kennedy.
76 99
Id., at 42-43. Atkinson, Jeff. "RACKETEER INFLUENCED AND
77
Article III of the Constitution provides: CORRUPT ORGANIZATIONS," § § 1961-68: Broadest of the
Sec. 1. No person shall be deprived of life, liberty or Federal Criminal Statutes, 69 JOURNAL OF CRIMINAL LAW
property without due process of law, nor shall any person AND CRIMINOLOGY 1 (1978).
100
be denied the equal protection of the laws. 18 U.S.C. § 1962 (1970):
xxx (a) It shall be unlawful for any person who has received
Sec. 19(1) Excessive fines shall not be imposed, nor any income derived, directly or indirectly, from a pattern
cruel, degrading or inhuman punishment of racketeering activity or through collection of an
inflicted. Neither shall death penalty be imposed unless, unlawful debt in which such person has participated as a
for compelling reasons involving heinous crimes, the principal within the meaning of section 2, title 18, United
Congress hereafter provides for it. Any death penalty States Code, to use or invest, directly or indirectly, any
already imposed shall be reduced to reclusion part of such income, or the proceeds of such income, in
perpetua. (Emphasis supplied.) acquisition of any interest in, or the establishment or
operation of, any enterprise which is engaged in, or the

activities of which effect, interstate or foreign commerce.
A purchase of securities on the open market for purposes
of investment, and without the intention of controlling or
participating in the control of the issuer, or of assisting
another to do so, shall not be unlawful under this
subsection if the securities of the issuer held by the
purchaser, the members of his immediate family, and his
or their accomplices in any pattern or racketeering activity
or the collection of an unlawful debt after such purchase
do not amount in the aggregate to one percent of the
outstanding securities of any one class, an do not confer,
either in law or in fact, the power to elect one or more
directors of the issuer.
(b) It shall be unlawful for any person through a pattern of
racketeering activity or through collection of an unlawful
debt to acquire or maintain, directly or indirectly, any
interest in or control of any enterprise which is engaged
in, or the activities of which affect, interstate or foreign
commerce.
(c) It shall be unlawful for any person employed by or
associated with any enterprise engaged in, or the activities
of which affect, interstate or foreign commerce, to
conduct or participate, directly or indirectly, in the
conduct of such enterprise’s affairs through a pattern of
racketeering activity or collection of unlawful debt.
(d) It shall be unlawful for any person to conspire to
violate any of the provisions of subsections (a), (b), or (c)
of this section.
101
Id., at § 1961(5).
102
See RECORDS JOINT CONFERENCE COMMITTEE
MEETING, May 7, 1991, p. 12.
103
Northwestern, supra.
104
Id., at 239:
RICO’s legislative history reveals Congress’ intent that to
prove a pattern of racketeering activity a plaintiff or
prosecutor must show that the racketeering predicates are
related, and that they amount to or pose a threat of
continued criminal activity. Citing 116 Cong Rec 18940
(1970)
105
Id., at 240.
106
Id.,at 241.
107
Separate Concurring Opinion, pp. 255-256.
108
The issue involved in this case was whether Northwestern Bell
Telephone Co., Inc. was liable under the RICO Law for bribing
the members of the Minnesota Public Utilities Commission to
approve rates for the company in excess of a fair and reasonable
amount. The U.S. Supreme Court reversed the District Court of
Minnesota and held that (1) to prove a "pattern of racketeering
activity" within the meaning of RICO, it must be shown that the
predicate acts of racketeering activity are related and that they
amount to or pose a threat of continued criminal activity; (2) it is
not only by proof of multiple schemes that continuity of criminal
activity may be shown; (3) a pattern of racketeering activity may
be shown regardless of whether the racketeering activities are
characteristic of "organized crime"; and (4) remand was
necessary because, under the facts alleged, it might be possible to
prove that the defendants' actions satisfied the requirements of
relatedness and continuity and they thus constituted a "pattern of
racketeering activity".
109
See United States v. Masters, 924 F.2d 1362 (7th Cir.), cert.
denied 11 S. Ct. 2019 (1991); United Statesv. Pungitore, 910 F.2d
1084 (3rd Cir. 1990), cert. denied, 11 S.Ct. 2009-11 (1991);
United States v. Angiulo, 897 F.2d 1169 (1st Cir.), cert. denied,
111 S. Ct. 130 (1990). All cases cited in Moran,
Christopher, infra.
110
Bauerschmidt, Joseph E., Mother of Mercy – Is this the End of
RICO? – Justice Scalia Invites Constitutional Void-for-
Vagueness Challenge to RICO "Pattern", 65 NOTRE DAME
LAW REVIEW 1106 (1990).
111
Moran, Christopher. Is the "Darling" in Danger? "Void for
Vagueness" – The Constitutionality of the RICO Pattern
Requirement, 36 VILLANOVA LAW REVIEW 1697 (1991)
citing:
COLO. REV. STAT. § 18-17-103(3): "Pattern of
racketeering activity" means engaging in at least two acts
of racketeering activity which are related to the conduct of
the enterprise, if at least one of such acts occurred in this
state after July 1, 1981, and if the last of such acts
occurred within ten years (excluding any period of
imprisonment) after a prior act of racketeering activity.
CONN. GEN. STAT. ANN. § 53-394(e) (West 1985):
"Pattern of racketeering activity" means engaging in at
least two incidents of racketeering activity that have the
same or similar purposes, results, participants, victims or
methods of commission or otherwise are interrelated by
distinguishing characteristics, including a nexus to the
same enterprise, and are not isolated incidents, provided
at least one of such incidents occurred after the effective
date of this act and that the last of such incidents occurred
within five years after a prior incident of racketeering
conduct.
GA. CODE ANN. § 16-14-3(8) (Supp. 1991): "Pattern of
racketeering activity" means engaging in at least two
incidents of racketeering activity that have the same or
similar intents, results, accomplices, victims, or methods
of commission or otherwise are interrelated by
distinguishing characteristics and are not isolated
incidents, provided at least one of such incidents occurred
after July 1, 1980, and that the last of such incidents
occurred within four years, excluding any periods of
imprisonment, after the commission of a prior incident of
racketeering activity.
IDAHO CODE § 18-7803(d) (1987): "Pattern of
racketeering activity" means engaging in at least two (2)
incidents of racketeering conduct that have the same or
similar intents, results, accomplices, victims, or methods
of commission, or otherwise are interrelated by
distinguishing characteristics and are not isolated
incidents, provided at least one (1) of such incidents
occurred after the effective date of this act and that the
last of such incidents occurred within five (5) years after a
prior incident of racketeering conduct.
IND. CODE ANN. § 35-45-6-1 (West 1986): "Pattern of
racketeering activity" means engaging in at least two (2)
incidents of racketeering activity that have the same or
similar intent, result, accomplice, victim, or method of
commission, or that are otherwise interrelated by
distinguishing characteristics [sic] that are not isolated
incidents. However, the incidents are a pattern of
racketeering activity only if at least one (1) of the
incidents occurred after August 31, 1980, and if the last of
the incidents occurred within five (5) years after a prior
incident of racketeering activity.
LA. REV. STAT. ANN. § 15:1352 (C) (West Supp.
1992): "Pattern of drug racketeering activity" means
engaging in at least two incidents of drug racketeering
activity that have the same or similar intents, results,
principals, victims, or methods of commission or
otherwise are interrelated by distinguishing characteristics
and are not isolated incidents, provided at least one of
such occurs after a prior incident of drug racketeering
activity.
MISS. CODE ANN. § 97-43-3(d) (Supp 1989): "Pattern
of racketeering activity" means engaging in at least two
(2) incidents of racketeering conduct that have the same
or similar intents, results, accomplices, victims, or
methods of commission or otherwise are interrelated by
distinguishing characteristics and are not isolated
incidents, provided at least one (1) of such incidents
occurred after the effective date of this chapter and that
the last of such incidents occurred within five (5) years
after a prior incident of racketeering conduct.
N.C. GEN. STAT. § 75D-3(b) (1990): "Pattern of
racketeering activity means engaging in at least two
incidents of racketeering activity that have the same or
similar purposes, results, accomplices, victims or methods
of commission or otherwise are interrelated by
distinguishing characteristics and are not isolated and
unrelated incidents, provided at least one of such
incidents occurred after October 1, 1986, and that at least
one other of such incidents occurred within a four-year
period of time of the other, excluding any periods of
imprisonment, after the commission of a prior incident of
racketeering activity.
OR. REV. STAT. § 166.715(4) (1990): "Pattern of
racketeering activity" means engaging in at least two
 incidents of racketeering activity that have the same or
similar intents, results, accomplices, victims, or methods
113
of commission or otherwise are interrelated by
distinguishing characteristics, including a nexus to the
same enterprise, and are not isolated incidents, provided
at least one of such incidents occurred after November 1,
1981, and that the last of such incidents occurred within
five years after a prior incident of racketeering activity.
TENN. CODE ANN. § 39-12-203(6) (1991): "Pattern of
racketeering activity" means engaging in at least two (2)
incidents of racketeering activity that have the same or
similar intents, results, accomplices, victims or methods
of commission or otherwise are interrelated by
distinguishing characteristics and are not isolated
incidents; provided, that at least one (1) of such incidents
occurred after July 1, 1986, and that the last of such
incidents occurred within two (2) years after a prior
incident of racketeering conduct.
WASH. REV. CODE ANN. § 9A.82.010(15) (1988):
"Pattern of criminal profiteering activity" means engaging
in at least three acts of criminal profiteering, one of which
occurred after July 1, 1985, and the last of which occurred
within five years, excluding any period of imprisonment,
after the commission of the earliest act of criminal
profiteering. In order to constitute a pattern, the three acts
must have the same or similar intent, results, accomplices,
principals, victims or methods of commission, or be
otherwise interrelated by distinguishing characteristics
including a nexus to the same enterprise, and must not be
isolated events.
112
Id., citing:
CAL. PENAL CODE § 186.2(b) (West 1988): "Pattern of
criminal profiteering activity" means engaging in at least
to incidents of criminal profiteering, as defined by this
act, which meet the following requirements: (1) Have the
same or similar purpose, result, principals, victims or
methods of commission, or are otherwise interrelated by
distinguishing characteristics[;] (2) Are not isolated
events[; and] (3) Were committed as criminal activity of
organized crime.
Id., citing:
DEL. CODE ANN. Tit. 11. § 1502(5) (1987): "Pattern of
racketeering activity" shall mean 2 or more incidents of
conduct: a. That: 1. Constitute racketeering activity; 2.
Are related to the affairs of the enterprise; 3. Are not so
closely related to each other and connected in point of
time and place that they constitute a single event; and b.
Where: 1. At least 1 of the incidents of conduct occurred
after July 9, 1986; 2. The last incident of conduct
occurred within 10 years after a prior occasion of conduct
...
OHIO REV. CODE ANN. §2923.31(E) (Anderson Supp.
1991): "Pattern of corrupt activity" means two or more
incidents of corrupt activity, whether or not there has been
a prior conviction, that are related to the affairs of the
same enterprise, are not isolated, and are not so closely
related to each other and connected in time and place that
they constitute a single event. At least one of the incidents
forming the pattern shall occur on or after January 1,
1986. Unless any incident was an aggravated murder or
murder, the last incidents forming the pattern shall occur
within six years after the commission of any prior
incident forming the pattern, excluding any period of
imprisonment served by any person engaging in the
corrupt activity.
OKLA. STAT. ANN. tit. 22, § 1402(5) (West Supp.
1992): Pattern of racketeering activity" means two or
more occasions of conduct: a. that include each of the
following: (1) constitute racketeering activity, (2) are
related to the affairs of the enterprise, (3) are not isolated,
(4) are not so closely related to each other and connected
in point of time and place that they constitute a single
event, and b. where each of the following is present: (1) at
least one of the occasions of conduct occurred after
November 1, 1988, (2) the last of the occasions of
conduct occurred within three (3) years, excluding any
 period of imprisonment served by the person engaging in or (ii) were committed, solicited, requested, importuned
the conduct, of a prior occasion of conduct . . . or intentionally aided by persons acting with the mental
WIS. STAT. ANN. § 946.82(3) (West Supp. 1991): culpability required for the commission thereof and
"Pattern of racketeering activity" means engaging in at associated with or in the criminal enterprise.
115
least 3 incidents of racketeering activity that the same or Luskin, Robert D. Behold, The Day of Judgment: Is the RICO
similar intents, results, accomplices, victims or methods Pattern Requirement Void for Vagueness? 64 ST. JOHN’S LAW
of commission or otherwise are interrelated by REVIEW 779 (1990).
116
distinguishing characteristics, provided at least one of the Memorandum for Petitioner, p. 47; TSN, Oral Arguments,
incidents occurred after April 27, 1982 and that the last of September 18, 2001, see pp. 224-233.
117
the incidents occurred within 7 years after the first Memorandum for Petitioner, p. 47.
118
incident of racketeering activity. Acts occurring at the See Kolender v. Lawson, supra
119
same time and place which may form the basis for crimes 18 U.S.C. § 1961 (5). .
120
punishable under more than one statutory provision may See U.S. v. Batchelder, 442 US 114, 60 L Ed 2d 755, 99 S Ct
count for only one incident of racketeering activity. 2198 (1979).
114 121
Id., citing: Through Justice Brennan.
122
MINN. STAT. ANN. §609.902(6) (West Supp. 1992): Supra.
123
"Pattern of criminal activity" means conduct consisting Decision, pp. 21-22.
124
constituting three or more criminal acts that: (1) were Today, July 1, 2001 issue.
125
committed within ten years of the commencement of the In People vs. Echegaray (267 SCRA 682) the word "heinous"
criminal proceedings; (2) are neither isolated incidents, was traced to the early Spartans’ word "haineus" which means
nor so closely related and connected in point of time or hateful and abominable. In turn, the word came from the Greek
circumstance of commission as to constitute a single prefix "haton" indicating acts so hateful or shockingly evil. (at
criminal offense; and (3) were either: (i) related to one 715)
126
another through a common scheme or plan or shared WHEREAS, the crimes punishable by death under this Act are
criminal purpose or (ii) committed, solicited, requested, heinous for being grievous, odious and hateful offenses and
importuned, or intentionally aided by persons acting with which, by reason of their inherent or manifest wickedness,
the mental culpability required for the commission of the viciousness, atrocity and perversity are repugnant and outrageous
criminal acts and associated with or in an enterprise to the common standards and norms of decency and morality in a
involved in these activities. just, civilized and ordered society.
127
N.Y. PENAL LAW §460.10(4) (McKinney 1989): Reyes, Luis B. The Revised Penal Code, Book One (13th ed.),
"Pattern of criminal activity" means conduct engaged in p. 56.
by persons charged in an enterprise corruption count 128
Petitioner’s Memorandum, p. 81.
129
constituting three or more criminal acts that: (a) were Dennis v. U.S., 314 U.S. 494 (1951).
130
committed within ten years of the commencement of the Scales v. U.S., 203 (1961).
131
criminal action; (b) are neither isolated incidents, nor so Smith v. California, 361 U.S. 147 (1959).
132
closely related and connected in point in time or 342 U.S. 246 (1952).
133
circumstance of commission as to constitute a criminal Regalado, Florenz, Criminal Law Conspectus (2001 ed.), 161-
offense or criminal transaction . . . ; and (c) are either: (i) 162.
134
related to one another through a common scheme or plan Atty. Rene A.V. Saguisag.
 135
Senate Bill No. 733.
136
Tañada and Macapagal vs. Cuenco, 103 Phil. 1093.
137
Commercial National Bank v. Rowe, 666 So. 2d 1312 (1996).
138
65 Phil. 56 (1937).
139
Id., at 90.
140
See Explanatory Note, Senate Bill No. 733, Records of the
Senate, June 1, 1989, pp. 1-2.
141
See Papachristou v. Jacksonville, 405 U.S. 156 (1972).
142
One of the reliefs sought in the Prayer contained in the
Petition (at p. 37) and in Petitioner’s Memorandum (at p. 84) is
for the quashal of the Information in Criminal case No. 26558 for
being null and void.
Double jeopardy attaches only when all of the following
circumstances are present: (1) upon a valid indictment; (2)
before a competent court; (3) after arraignment; (4) when
a valid plea has been entered; and (5) when the accused
was acquitted or convicted or the case was dismissed or
otherwise terminated without the express consent of the
accused (Tecson vs. Sandiganbayan, 318 SCRA 80, 89
[1999]).
The Lawphil Project - Arellano Law Foundation
SEPARATE DISSENTING OPINION
PARDO, J.:
With due respect, I vote to grant the petition on the second ground raised
therein, that is, multiplicity of offenses charged in the amended
information.1 Consequently, the resolution of the Sandiganbayan must be
set aside, and the case remanded to the Ombudsman for the amendment
of the information to charge only a single offense.
In my view, it is unnecessary to rule on the unconstitutionality of the
entire law,2 R. A. No. 7080, as amended by R. A. No. 7659, although I
share the opinion of the dissenting justices in the case of People v.
Echagaray,3 that the heinous crime law is unconstitutional. Hence, the
amendments to the plunder law prescribing the death penalty therefor are
unconstitutional. I am of the view that the plunder law penalizes acts that
are mala in se, and consequently, the charges must be the specific acts
alleged to be in violation of the law, committed with malice and criminal
intent. At any rate, I venture the view that Section 4, R. A. No. 7080,
must be interpreted as requiring proof beyond reasonable doubt of all the
elements of plunder as prescribed in the law, including the elements of
the component crimes, otherwise, the section will be unconstitutional.
Footnotes
1
Petition, Annex "B", Motion to Quash, Ground II.
2
‘The Court will not pass upon a constitutional question although
properly presented by the record if the case can be disposed of on
some other ground." (Laurel v. Garcia, 187 SCRA 797, 813
[1990], citing Siler v. Louisville and Nashville R. Co., 312 U.S.
175 [1909]; Railroad Commission v. Pullman Co., 312 U.S. 496
[1941]; Lalican v. Vergara, 342 Phil. 485, 498 [1997]; Mirasol v.
Court of Appeals, G. R. No. 128448, February 1, 2001.
3
335 Phil. 343 [1997].
The Lawphil Project - Arellano Law Foundation
DISSENTING OPINION
SANDOVAL–GUTIERREZ, J.:
At times when speaking against popular views can subject a member of
this Court to all sorts of unfair criticism and pressure from the media, the
lure not to wield the judicial pen is at its crest. Nevertheless, I cannot
relent to such enticement. Silence under such circumstances may mean
not only weakness, but also insensibility to the legal consequence of a
constitutional adjudication bound to affect not only the litigants, but the
citizenry as well. Indeed, the core issue in this case is highly significant,
the resolution of which is inevitably historical. Thus, today, I prefer to
take a stand and, therefore, dissent from the majority opinion.
It is beyond dispute that Republic Act No. 7080 (R.A. No.
7080),1 entitled "An Act Penalizing the Crime of Plunder," is
controversial and far-reaching. Nonetheless, it is my view that it is also
vague and fuzzy, inexact and sweeping. This brings us to the query - may
R.A. No. 7080 be enforced as valid and its shortcomings supplied by
judicial interpretation? My answer, to be explained later, is "NO."
As a basic premise, we have to accept that even a person accused of a
crime possesses inviolable rights founded on the Constitution which
even the welfare of the society as a whole cannot override. The rights
guaranteed to him by the Constitution are not subject to political
bargaining or to the calculus of social interest. Thus, no matter how
socially-relevant the purpose of a law is, it must be nullified if it tramples
upon the basic rights of the accused.
Enshrined in our Constitution is the ultimate guaranty that "no person
shall be deprived of life, liberty, or property without due process of
law."2 This provision in the Bill of Rights serves as a protection of the
Filipino people against any form of arbitrariness on the part of the
government, whether committed by the legislature, the executive or the
judiciary. Any government act that militates against the ordinary norms
of justice and fair play is considered an infraction of the due process; and
this is true whether the denial involves violation merely of the procedure
prescribed by law or affects the very validity of the law itself.3
The same Due Process Clause protects an accused against conviction
except upon proof beyond reasonable doubt of every fact necessary to
constitute the crime with which he is charged. The reason for this was
enunciated in In Re Winship:4 "[t]he accused during a criminal
prosecution has at stake interest of immense importance, both because of
the possibility that he may lose his liberty (or life) upon conviction and
because of the certainty that he would be stigmatized by the conviction."
In view thereof, any attempt on the part of the legislature to diminish the
requirement of proof in criminal cases should be discouraged.
I 4) By obtaining, receiving or accepting directly, or indirectly any
R.A. No. 7080, as amended, is unconstitutional. Albeit the legislature did
not directly lower the degree of proof required in the crime of plunder
from proof beyond reasonable doubt to mere preponderance of or
substantial evidence, it nevertheless lessened the burden of the
prosecution by dispensing with proof of the essential elements of
plunder. Let me quote the offending provision:
SEC. 4. Rule of Evidence. – For purposes of establishing the crime of
plunder, it shall not be necessary to prove each and every criminal
act done by the accused in furtherance of the scheme or conspiracy to
amass, accumulate, or acquire ill-gotten wealth, it being sufficient to
establish beyond reasonable doubt a pattern of overt or criminal
acts indicative of the overall unlawful scheme or conspiracy.
In every criminal prosecution, the law recognizes certain elements as
material or essential. Calling a particular fact an "essential element"
carries certain legal consequences. In this case, the consequence that
matters is that the Sandiganbayan cannot convict the accused unless it
unanimously5 finds that the prosecution has proved beyond reasonable
doubt each element of the crime of plunder.
What factual elements must be proved beyond reasonable doubt to
constitute the crime of plunder?
Ordinarily, the factual elements that make up a crime are specified in the
law that defines it. Under R.A. No 7080, as amended, the essential
elements of the crime of plunder are: a) that the offender is a public
officer; b) that he amasses, accumulates or acquires ill-gotten wealth
through a combination or series of overt or criminal acts described in
Section 1 (d), to wit:
1) Through misappropriation, conversion, misuse, or
malversation of public funds or raids on the public treasury;
2) By receiving, directly or indirectly, any commission, gift,
share, percentage, kickbacks, or any other form of pecuniary
benefit from any person and/or entity in connection with any
government contract or project or by reason of the office or
position of the public officer concerned;
3) By the illegal or fraudulent conveyance or disposition of assets
belonging to the National Government or any of its subdivision,
agencies or instrumentalities or government –owned or controlled
corporations and their subsidiaries;
shares of stock, equity or any other form of interest or
participation including the promise of future employment in any
business enterprise or undertaking;
5) By establishing agricultural, industrial or commercial
monopolies or other combinations and/or implementation of
decrees and orders intended to benefit particular person or special
interests; or
6) By taking undue advantage of official position, authority,
relationship, connection, or influence to unjustly enrich himself
or themselves at the expense and to the damage and prejudice of
the Filipino people and the Republic of the Philippines.
and c) that the aggregate amount or total value of the ill-gotten wealth is
at least Fifty Million Pesos (P50,000,000.00).6
Does the phrase "combination or series of overt or criminal acts
described in Section 1 (d)" mean that the "criminal acts" merely
constitute the means to commit plunder? Or does it mean that those
"criminal acts," are essential elements of plunder?
When Section 4 of R.A. No. 7080 mandates that it shall not be necessary
for the prosecution to prove each and every criminal act done by the
accused, the legislature, in effect, rendered the enumerated "criminal
acts" under Section 1 (d) merely as means and not as essential
elements of plunder. This is constitutionally infirmed and repugnant to
the basic idea of justice and fair play.7 As a matter of due process, the
prosecution is required to prove beyond reasonable doubt every fact
necessary to constitute the crime with which the defendant is
charged. The State may not specify a lesser burden of proof for an
element of a crime.8 With more reason, it should not be allowed to go
around the principle by characterizing an essential element of plunder
merely as a "means" of committing the crime. For the result is the
reduction of the burden of the prosecution to prove the guilt of the
accused beyond reasonable doubt.
Let me elucidate on the vices that come with Section 4.
First, treating the specific "criminal acts" merely as means to commit the
greater crime of plunder, in effect, allows the imposition of the death
penalty even if the Justices of the Sandiganbayan did not "unanimously"
find that the accused are guilty beyond reasonable doubt of those
"criminal acts." The three Justices need only agree that the accused
committed at least two of the criminal acts, even if not proved by
evidence beyond reasonable doubt. They do not have to agree
unanimously on which two.
Let us consider the present case against former President Joseph Ejercito
Estrada. The accusatory portion of the information in Criminal Case No.
26558 charges Mr. Estrada and others of willfully, unlawfully and
criminally amassing, accumulating and acquiring ill-gotten wealth in the
aggregate amount of P4,097,804,173.17 more or less, through
a combination and series of overt and criminal acts described as
follows:
"a) by receiving, collecting, directly or indirectly, on many
instances, so called "jueteng money" from gambling operators in
connivance with co-accused Jose "Jinggoy" Estrada, Yolanda
Ricaforte and Edward Serapio, as witnessed by Gov. Luis Chavit
Singson, among other witnesses, in the aggregate amount
of FIVE HUNDRED FORTY-FIVE MILLION
PESOS (P545,000,000.00), more or less, in consideration of their
protection from arrest or interference by law enforcers in their
illegal "jueteng" activities; and
b) by misappropriating, converting and misusing his gain and
benefit public fund in the amount of ONE HUNDRED THIRTY
MILLION PESOS (P130,000,000.00), more or less,
representing a portion of the One Hundred Seventy Million Pesos
(P170,000,000.00) tobacco excise tax share allocated for the
Province of Ilocos Sur under R.A. No. 7171, in conspiracy with
co-accused Charlie "Atong" Ang, Alma Alfaro, Eleuterio Tan
a.k.a Eleuterio Ramos Tan or Mr. Uy., and Jane Doe a.k.a Delia
Rajas as witnesses by Gov. Luis "Chavit" Singson, among other
witnesses; and
c) by directing, ordering and compelling the Government Service
Insurance System (GSIS) and the Social Security System (SSS)
to purchase and buy a combined total of P681,733,000. shares of
stock of Belle Corporation in the aggregate value of One Billion
Eight Hundred Forty Seven Pesos and Fifty Centavos
(P1,847,578,057.50), for the purpose of collecting for his
personal gain and benefit, as in fact he did collect and receive the
sum of ONE HUNDRED EIGHTY NINE MILLION SEVEN
HUNDRED THOUSAND PESOS(P189,700,000.00), as
commission from said stock purchase; and
d) by unjustly enriching himself in the amount of THREE
BILLION TWO HUNDRED THIRTY THREE MILLION
ONE HUNDRED FOUR THOUSAND ONE HUNDRED
SEVENTY THREE PESOS AND SEVENTEEN
CENTAVOS (P3,233,104,173.17) comprising his unexplained
wealth, acquired, accumulated and amassed by him under his
account name "Jose Velarde" with Equitable PCI Bank."
Since it is not necessary to prove each criminal act, the inevitable
conclusion is that Mr. Estrada may be convicted of the crime of plunder
without the Justices of the Sandiganbayan "unanimously" deciding
which two of the four criminal acts have actually been committed. In
short, all that R.A. No. 7080 requires is that each Justice must be
convinced of the existence of a "combination or series." As to which
criminal acts constitute a combination or series, the Justices need not be
in full agreement. Surely, this would cover-up a wide disagreement
among them about just what the accused actually did or did not do.
Stated differently, even if the Justices are not unified in their
determination on what criminal acts were actually committed by the
accused, which need not be proved under the law, still, they could
convict him of plunder.
Considering that what R.A. No. 7080 punishes is the plurality of criminal
acts indicative of the grand scheme or conspiracy to amass ill-gotten
wealth, it is imperative to focus upon the individual "criminal acts" in
order to assure the guilt of the accused of plunder.
Second, R.A. No. 7080 lumps up into one new offense of plunder six (6)
distinct crimes which by themselves are currently punishable under
separate statutes or provisions of law. The six (6) separate crimes
become mere "means or similar schemes" to commit the single offense
of plunder. It bears emphasis that each of the separate offenses is a
crime mala in se. The commission of any offense mala in se is inherently
accompanied by a guilty mind or a criminal intent.9 Unfortunately, R.A.
No. 7080 converted the six mala in se offenses into one crime which
is mala prohibita wherein the intent becomes insignificant. Upon the
commission of the proscribed act, without proof of intent, the law is
considered violated.10 Consequently, even acts recklessly committed (i.e.
without intent) can be punished by death.
Third, Section 4 mandates that it shall not be necessary for the
prosecution to prove each and every criminal act done by the
accused x x x it being sufficient to prove beyond reasonable doubt a
pattern of overt or criminal acts. By its own terminology, Section 4
requires that the "pattern" be proved by evidence beyond reasonable
doubt. Initially, we must disassociate the specific "criminal acts" from
the "pattern of criminal acts." These two phrases do not refer to one and
the same thing. Pattern, as defined in the dictionary, means an
established mode of behavior.11 In the crime of plunder, the existence of
a "pattern" can only be inferred from the specific "criminal acts" done by
the accused. Several queries may be raised to determine the existence of
a "pattern." Are these criminal acts related or tied to one another? Is the
subsequent criminal act a mere continuation of the prior criminal act? Do
these criminal acts complement one another as to bring about a single
result? Inevitably, one must focus first on each criminal act to ascertain
the relationship or connection it bears with the other criminal acts, and
from there determine whether a certain "pattern" exists. But how could
"pattern" be proved beyond reasonable doubt when in the first
place the specific "criminal acts" from which such pattern may be
inferred are not even required to be proved?
And fourth, plunder is a very serious offense. What is at stake under the
law is not only the liberty of the accused but his life and property as well.
Thus, it will be extremely unjust to lessen the prosecution’s burden of
proof to such a degree not commensurate to what the accused stands to
suffer. If a person will lose his life, justice requires that every fact on
which his guilt may be inferred must be proved beyond reasonable
doubt.
Providing a rule of evidence which does not require proof beyond
reasonable doubt to establish every fact necessary to constitute the crime
is a clear infringement of due process. While the principles of the law of
evidence are the same whether applied on civil or criminal trials, they are
more strictly observed in criminal cases.12 Thus, while the legislature of
a state has the power to prescribe new or alter existing rules of
evidence, or to prescribe methods of proof, the same must not violate
constitutional requirements or deprive any person of his
constitutional rights.13 Unfortunately, under R.A. No. 7080, the State
did not only specify a lesser burden of proof to sustain an element of
the crime; it even dispensed with proof by not considering the
specific "criminal acts" as essential elements. That it was the clear
intention of the legislature is evident from the Senate deliberation, thus:
"Senator Guingona. Since it is a series or a scheme,what amount of
evidence will, therefore, be required? Must there be a pattern of the
criminal acts? Must there be a series of briberies, for example? Or, can
there be only one?
Senator Tanada. Under Section 4 of the bill, Mr. President, it is
provided that:
"For purposes of establishing the OFFENSE, of plunder, it shall not be
necessary to prove each and every criminal act done by the accused in
furtherance of the scheme or conspiracy to amass, accumulate, or acquire
ill-gotten wealth… But, there must be enough evidence "sufficient to
establish beyond reasonable doubt a pattern of overt or criminal acts of
the overall unlawful scheme or conspiracy."
So, that is the quantum of evidence that would be required under this
proposal measure.
Senator Guingona. That is sufficient to establish the prima facie case.14
xxxxxx
Senator Romulo. That, perhaps, is a good provision of the bill. But, may
I ask, Mr. President, what is in this bill that would insure that there
would be a speedier process by which this crime of plunder would
readily and immediately processed and convicted or acquitted than is
now existing in present laws?
Senator Tanada. Yes, x x x.
Now, on the second point, Mr. President, I believe that what could make
faster and speedier prosecutions of these grafters would be a change that
will be authorized in this bill, at least, in the filing of information against
the perpetrators. Under the existing criminal procedure, as I said earlier,
there can only be one offense charged per information. So, if there is
going to be a series of overt or criminal acts committed by the grafter,
then that would necessitate the filing of so many informations against
him. Now, if this bill becomes a law, then that means that there can be
only one information filed against the alleged grafter. And the evidence
that will be required to convict him would not be evidence for each
and every individual criminal act but only evidence sufficient to
establish the conspiracy or scheme to commit this crime of
plunder.15
xxxxxx
Senator Guingona. May I just be clarified Mr. President. In this Section
4, a pattern of the criminal acts is all that is required. Would this pattern
of criminal acts be also sufficient to establish a prima facie case?
Senator Tanada. Mr. President, under Section 4, it would not only be
sufficient to establish a prima facie case. It would be sufficient to
establish guilt as long as the evidence, necessary to establish guilt
beyond reasonable doubt is presented."16
In dispensing with proof of each criminal act, the clear objective of
Congress is to render it less difficult for the prosecution to prove the
crime of plunder. While this presupposes a noble intention, I do not think
there is a sufficient justification. I, too, have the strong desire to
eliminate the sickness of corruption pervading in the Philippine
government, but more than anything else, I believe there are certain
principles which must be maintained if we want to preserve fairness in
our criminal justice system. If the prosecution is not mandated to prove
the specific "criminal acts," then how can it establish the existence of the
requisite "combination or series" by proof beyond reasonable doubt?
II
Another valid constitutional objection to R.A. No. 7080 is the vagueness
of the term "pattern." As stated by Mr. Justice Kapunan, in his Dissent,
the concept of "pattern of overt or criminal acts" embodied in the law
was derived by Congress from the RICO (Racketeer Influenced and
Corrupt Organizations) statute.17 I am, therefore, constrained to refer to
US law and jurisprudence. "Pattern" as defined in the RICO statute
means "as requiring at least two acts of racketeering activity….the last of
which occurred within ten years….after the commission of the prior act
of racketeering activity.18
Mr. Justice Kapunan observed that unlike the RICO law, the law on
plunder does not specify a) the number of criminal acts necessary before
there could be a "pattern," as well as b) the period within which the
succeeding criminal acts should be committed. These failures render the
law void for its vagueness and broadness.
Indeed, Congress left much to be desired. I am at a quandary on how
many delictual acts are necessary to give rise to a "pattern of overt or
criminal acts" in the crime of plunder. If there is no numerical standard,
then, how should the existence of "pattern" be ascertained? Should it be
by proximity of time or of relationship? May an act committed two
decades after the prior criminal act be linked with the latter for the
purpose of establishing a pattern?
It must be remembered that plunder, being a continuous offense, the
"pattern of overt or criminal acts" can extend indefinitely, i.e., as long as
the succeeding criminal acts may be linked to the initial criminal act.
This will expose the person concerned to criminal prosecution ad
infinitum. Surely, it will undermine the purpose of the statute of
limitations, i.e., to discourage prosecution based on facts obscured by the
passage of time, and to encourage law enforcement officials to
investigate suspected criminal activity promptly.19 All these undesirable
consequences arise from the fact that the plunder law fails to
provide a period within which the next criminal act must be
committed for the purpose of establishing a pattern. I believe R.A.
No. 7080 should have provided a cut-off period after which a succeeding
act may no longer be attached to the prior act for the purpose of
establishing a pattern. In reiteration, the RICO law defines "pattern" as
requiring at least two acts of racketeering activity… the last of which
occurred within ten years… after the commission of the prior act of
racketeering activity. Such limitation prevents a subsequent racketeering
activity, separated by more than a decade from the prior act of
racketeering, from being appended to the latter for the purpose of coming
up with a pattern. We do not have the same safeguard under our law.
Significantly, in Sedima, S.P.R.L v. Imrex Co.,20 the United States
Supreme Court expressed dismay that Congress has failed to properly
define the term "pattern" at all but has simply required that a "pattern"
includes at least two acts of racketeering activity. The Court concluded
that "pattern" involves something more than two acts, and after
examining RICO’s legislative history, settled on "continuity plus
relationship" as the additional requirement.
Years later, in H.C. Inc. v. The Northwestern Bell Tel.,21 the U.S.
Supreme Court conceded that "the continuity plus relationship" means
different things to different circuits. Nevertheless, it held firm to
the Sedima requirement that "in order to establish a pattern, the
government has to show "that the racketeering predicates are related, and
that they amount to or pose a threat of continued criminal activity."
Justice Scalia, in a concurring opinion in which three other justices
joined, derided the "relationship" requirement as not "much more helpful
[to the lower courts] than telling them to look for a "pattern" - - which is
what the statute already says." As for the continuity requirement, Justice
Scalia said: "Today’s opinion has added nothing to improve our prior
guidance, which has created a kaleidoscope of circuit positions, except to
clarify that RICO may in addition be violated when there is a 'threat of
continuity'. It seems to me this increases rather than removes the
vagueness. There is no reason to believe that the Court of Appeals will
be any more unified in the future, than they have in the past, regarding
the content of this law."
Aware of the ambiguities present in the RICO law the drafters of the
New York "Organized Crime Control Act" (a progeny of RICO) now
more specifically define "pattern of criminal activity" as conduct
engaged in by persons charged in an enterprise corruption count
constituting three or more criminal acts that (a) were committed within
ten years from the commencement of the criminal action; (b) are neither
isolated incidents, nor so closely related and connected in point of time
or circumstance of commission as to constitute a criminal offense or
criminal transaction, as those terms are defined in section 40.10 of the
criminal procedure law; and (c) are either: (i) related to one another
through a common scheme or plan or (ii) were committed, solicited,
requested, importuned or intentionally aided by persons acting with the
mental culpability required for the commission thereof and associated
with or in the criminal enterprise.22
If the term "pattern" as defined in the RICO law is continuously
subjected to constitutional attacks because of its alleged vagueness, how
much more the term "pattern" in R.A. No. 7080 which does not carry
with it any limiting definition and can only be read in context. Indeed,
there is no doubt that the invalidity of the law based on vagueness is not
merely debatable - it is manifest. Thus, this Court should declare R.A.
No. 7080 unconstitutional.
III
Lastly, the terms "combination" and "series" are likewise vague. Hence,
on the basis of the law, a conviction of an accused cannot be sustained. A
statute that does not provide adequate standards for adjudication, by
which guilt or innocence may be determined, should be struck
down.23 Crimes must be defined in a statute with appropriate certainty
and definiteness.24 The standards of certainty in a statute prescribing
punishment for offenses are higher than in those depending primarily on
civil sanctions for their enforcement.25 A penal statute should therefore
be clear and unambiguous.26 It should explicitly establish the elements of
the crime which it creates27 and provide some reasonably ascertainable
standards of guilt.28 It should not admit of such a double meaning that a
citizen may act on one conception of its requirements and the courts on
another.29
I agree with the observation of Mr. Justice Kapunan that "resort to the
dictionary meaning of the terms ‘combination’ and ‘series’ as well as
recourse to the deliberations of the lawmakers only serve to prove that
R.A. No. 7080 failed to satisfy the requirement of the Constitution on
clarity and definiteness." The deliberations of our law-makers, as quoted
verbatim in Justice Kapunan's Dissent, indeed, failed to shed light on
what constitute "combination" and "series."30
I believe this is fatal.
The essence of the law on plunder lies in the phrase "combination or
series of overt or criminal acts." As can be gleaned from the Record of
the Senate, the determining factor of R.A. 7080 is the plurality of the
overt acts or criminal acts under a grand scheme or conspiracy to
amass ill-gotten wealth. Thus, even if the amassed wealth equals or
exceeds fifty million pesos, a person cannot be prosecuted for the crime
of plunder if there is only a single criminal act.31
Considering that without plurality of overt or criminal acts, there can be
no crime of plunder, due process of law demands that the terms
"combination" and "series" be defined with exactitude in the law itself.
Equating these terms with mere "plurality" or "two or more," is
inaccurate and speculative. For one, a "series" is a group of usually three
or more things or events standing or succeeding in order and having like
relationship to each other.32 The Special Prosecution Division Panel
defines it as "at least three of the acts enumerated under Section 1(d)
thereof."33 But it can very well be interpreted as only one act repeated at
least three times. And the Office of the Solicitor General, invoking the
deliberations of the House of Representatives, contends differently. It
defines the term series as a "repetition" or pertaining to "two or
more."34 The disparity in the Prosecution and OSG’s positions clearly
shows how imprecise the term "series" is.
This should not be countenanced. Crimes are not to be created by
inference.35 No one may be required, at the peril of life, liberty or
property to guess at, or speculate as to, the meaning of a penal
statute.36 An accused, regardless of who he is, is entitled to be tried only
under a clear and valid law.
Respondents argue that the vagueness of R.A. No. 7080, as amended, is
cured when the Information clearly specified the acts constituting the
crime of plunder. I do not agree. It is the statute and not the accusation
under it that prescribes the rule to govern conduct and warns against
aggression.37 If on its face, a statute is repugnant to the due process
clause on account of vagueness, specification in the Information of the
details of the offense intended to be charged will not serve to validate
it.38
On the argument that this Court may clarify the vague terms or explain
the limits of the overbroad provisions of R.A. No. 7080, I should
emphasize that this Court has no power to legislate.
Precision must be the characteristic of penal legislation. For the Court to
define what is a crime is to go beyond the so-called positive role in the
protection of civil liberties or promotion of public interests. As stated by
Justice Frankfurter, the Court should be wary of judicial attempts to
impose justice on the community; to deprive it of the wisdom that comes
from self-inflicted wounds and the strengths that grow with the burden of
responsibility.39
A statute which is so vague as to permit the infliction of capital
punishment on acts already punished with lesser penalties by clearly
formulated law is unconstitutional. The vagueness cannot be cured by
judicial construction.
Also, not to be glossed over is the fact that R.A. 7080, as amended, is a
novel law. Hence, there is greater need for precision of terms. The
requirement that law creating a crime must be sufficiently explicit to
inform those subject to it, what conduct on their part will render them
liable to its penalties, has particular force when applied to statutes
creating new offenses. For that reason, those statutes may not be
generally understood, or may be subject of generally accepted
construction.40
Today, I recall what James Madison remarked in presenting the Bill of
Rights to the United States Congress in 1789: "if they (Bill of Rights) are
incorporated into the Constitution, independent tribunals of justice will
consider themselves in a peculiar manner the guardians of those rights;
they will be an impenetrable bulwark against every assumption of power
in the legislative or executive; and they will be naturally led to resist
every encroachment upon rights expressly stipulated for in the
Constitution by the declaration of rights."41 Time did not render his
foreboding stale. Indeed, in every constitutional democracy, the judiciary
has become the vanguard of these rights. Now, it behooves this Court to
strike an unconstitutional law. The result, I concede, may not be
politically desirable and acceptable, nevertheless, I am fully convinced
that it is constitutionally correct.
To recapitulate, R.A. No. 7080 is unconstitutional because it violates the
DUE PROCESS CLAUSE of the Constitution. The vagueness of its
terms and its incorporation of a rule of evidence that reduces the burden
of the prosecution in proving the crime of plunder tramples upon the
basic constitutional rights of the accused.
In fine, I can only stress that the one on trial here is not Mr. Estrada, but
R.A. No. 7080. The issue before this Court is not the guilt or innocence
of the accused, but the constitutionality of the law. I vote to grant the
petition, not because I favor Mr. Estrada, but because I look beyond
today and I see that this law can pose a serious threat to the life, liberty
and property of anyone who may come under its unconstitutional
provisions. As a member of this Court, my duty is to see to it that the law
conforms to the Constitution and no other. I simply cannot, in good
conscience, fortify a law that is patently unconstitutional.
WHEREFORE, I vote to grant the petition.

Footnotes
1
As amended by Republic Act No. 7659 - "An Act to Impose the
Death Penalty on Certain Heinous Crimes, Amending for that
Purpose the Revised Penal Code, other Special Penal Laws and
for other Purpose (1993).
2
Section 1, Article III of the 1987 Constitution.
3 17
Cruz, Constitutional Law, 1995 Ed. p. 95.
4
397 U.S. 358, 90 S. Ct. 1068, 25 L. Ed. 2nd 368.
5
Section 1 (b) Rule XVIII, Revised Rules of the Sandiganbayan
"The unanimous vote of three Justices in a division shall
be necessary for the rendition of a judgment or order. In
the event that three Justices do not reach a unanimous
vote, the Presiding Justice shall designate by raffle two
justices from among the other members of the
Sandiganbayan to sit temporarily with them forming a
special division of five Justices, and the vote of a majority
of such special division shall be necessary for the
rendition of a judgment or order.
6 24
Section 2 of R.A. No. 7080.
7
It is an elementary principle of criminal jurisprudence, a
principle firmly embedded in the organic law of every free state
and vindicated by statutory guarantee as well as by innumerable
judicial decisions, that every criminal, however hideous his
alleged crime, or however, debauched and fiendish his character,
may require that the elements of that crime shall be clearly and
indisputably defined by law, and that his commission of and
relationship to the alleged offense shall be established by legal
evidence delivered in his presence. (Rice, The Law of Evidence
on Evidence, Vol. 3, p. 421.
8
29 Am Jur 2d Section 168, p. 192. Re Winship, 397 US 358, 25
L Ed 2d 368; State v. Krantz, 498 US 938, 112 L Ed 2d 306.
9
In U.S. vs. Ah Chong, 15 Phil. 488 (1910), it was held that the
crime must be the product of a free, intelligent, and intentional
act.
10
U.S. vs. Go Chico, 14 Phil. 134 (1909-1910).
11
Webster, Third New International Dictionary, Unabridged,
1993, p. 1657.
12
Harris and Wilshere’s Criminal Law, Seventeenth Division,
1943, pp.513-514.
13
Burgett v. Texas, 389 US 109, 19 L Ed 2d 319, 88 Ct 258; 29
Am Jur 6.
14
Records of the Senate, June 5, 1989, Vol. IV, No. 140, p. 1314.
15
Records of the Senate, Vol. IV, No. 140, p. 1316.
16
Records of the Senate, June 16, 1989, Vol. IV, No. 141, p.
1403.
See Records Joint Conference Committee Meeting, May 7,
1991, p. 12. Representative Pablo Garcia, Chairman of the House
of Representatives Committee on Justice, observed that R.A. No.
7080 was patterned after the RICO law.
18
Rotella v. Wood, United States Supreme Court, February 23,
2000.
19
Toussie vs. United States, 397 U.S. 112, 115 (1970).
20
473 U.S. 479, 105 S. Ct. 3275, 87 L. Ed. 2d 346 (1985).
21
492 U.S. 229, 109 S. Ct. 2893, 106 L Ed. 2d 195 (1989).
22
The People of the State of New York v. Capaldo et al., 151
Misc. 2d 114 (1991).
23
21 Am Jur §349, p.399.
22 C.J.S. §24 (2) p. 62; Pierce v. United States 314 US 306; 86
L. Ed 226.
"The constitutional vice in a vague or indefinite statute is
the injustice to accused in placing him on trial for an
offense as to the nature of which he is given no fair
notice. (American Communications Associations C.I.O. v.
Douds, N.Y. 70 S. Ct. 674, 339 U.S. 382, 94 L. Ed 1391)
In determining whether a statute meets the requirement of
certainty, the test is whether the language conveys
sufficiently definite warning as to the proscribe conduct
when measured by a common understanding and
practices. Penal statutes affecting public officers and
employees and public funds or property will be held
invalid where the prohibited conduct is not sufficiently
defined. (Jordan v. De George III341 U.S. 223, 95 L. Ed.
886; Winters v. People of State of New York. 333 U.S.
507; 92 L. Ed 840) The requirement of statutory
specificity has the dual purpose of giving adequate notice
of acts which are forbidden and of informing accused of
 the nature of offense charged so that he may defend
himself. (Amsel v. Brooks, 106 A. 2d 152, 141 Conn.
288; 67 S. Ct. 125, 348 U.S. 880, 91 L. Ed. 693)".
25
"Winters v. People of State of Newyork 333 US 507; 92 L. Ed.
840 -- "A penal statute must set up ascertainable standards so that
men of common intelligence are not required to guess at its
meaning, either as to persons within the scope of the act or as to
the apllicable test to ascertain guilt."
26
Sullivan v. United States 332 U.S. 689; 92 L. Ed. 297.
27
United States v. Dettra Flag co. D.C. Pa., 86 F. Supp. 84.
28
Winters v. People of State of New York, supra.
29
State v. Tsutomu Ikeda, 143 P. 2d 880, followed in State v.
Waller 143 P. 2d 884.
30
"Senator Gonzales. To commit the offense of plunder, as
defined in this Act and while constituting a single offense, it must
consist of a series of overt or criminal acts, such as bribery,
extortion, malversation, of public funds, swindling, falsification
of public documents, coercion, theft, fraud and illegal exaction,
and graft or corrupt practices act and like offenses. Now, Mr.
President, I think, this provision, by itself, will be vague. I am
afraid that it might be faulted for being violative of the due
process clause and the right to be informed of the nature and
cause of accusation of an accused. Because, what is meant by
"series of overt or criminal acts"? I mean, would 2, 3, 4 or 5
constitute a series? During the period of amendments, can we
establish a minimum of overt acts like, for example, robbery in
band? The law defines what is robbery in band by the number of
participants therein. In this particular case, probably, we can
statutorily provide for the definition of "series" so that two, for
example, would that already be a series? Or, three, what would be
the basis for such a determination?" (Record of the Senate, June
5, 1989, Vol. IV, No. 140, p. 1310).
31
"Senator Paterno. Mr. President, not too clear yet on the reason
for trying to define a crime of plunder. Could I get some further
clarification?
Senator Tanada. Yes, Mr. President.
Because of our experience in the former regime, we feel
that there is a need for Congress to pass the legislation
which would cover a crime of this magnitude. While it is
true, we already have the Anti-Graft Law. But that does
not directly deal with plunder. That covers only the
corrupt practices of public officials as well as their
spouses and relatives within the civil degree, and the
Anti-Graft law as presently worded would not adequately
or sufficiently address the problems that we experienced
during the past regime.
Senator Paterno. May I try to give the Gentleman, Mr.
President, my understanding of the bill?
Senator Tanada. Yes.
Senator Paterno. I envision that this bill or this kind of
plunder would cover a discovered interconnection of
certain acts, particularly, violations of Anti-Graft and
Corrupt Practices Act when, after the different acts are
looked at, a scheme of conspiracy can be detected, such
scheme or conspiracy consummated by the different
criminal acts or violations of Anti-Graft and Corrupt
Practices Act, such that the scheme or conspiracy
becomes a sin, as a large scheme to defraud the public or
rob the public treasury. It is parang robo and banda. It is
considered as that. And, the bill seeks to define or says
that P100 million is that level at which ay talagang sobra
na dapat nang parusahan ng husto. Would it be a correct
interpretation or assessment of the intent of the bill?
Senator Tanada. Yes, Mr. President. The fact that under
existing law, there can be only one offense charged in the
information, that makes it very cumbersome and difficult
to go after these grafters if we would not come out with
this bill. That is what is happening now; because of that
rule that there can be only one offense charged per
information, then we are having difficulty in charging all
the public officials who would seem to have committed
these corrupt practices. With this bill, we could come out
with just one information, and that would cover all the
series of criminal acts that may have been committed by
him.
xxxxxx
Senator Romulo. To follow up the interpolations of
Senator Paterno and Maceda, this crime of plunder as
 envisioned here contemplates of a series or a scheme as
responded by the distinguished Sponsor.
Senator Tanada. That is correct, Mr. President. (Record of
Senate, June 5, 1989, Vol. IV, No. 140, p. 1315)
xxxxxx
Senator Romulo. Mr. President, I was going to suggest
prior to Senator Maceda that on line 24: "SHALL
THROUGH ONE overt or criminal act OR…." I was just
thinking of one which is really not a "series.",
The President. If there is only one, then he has to be
prosecuted under the particular crime. But when we say
"acts of plunder" there should be, at least, two or more.
(Record of the Senate, June 6, 1989, Vol. IV, No. 141, p.
1399).
32
Tarsia v. Nick’s Laundry & Linen Supply Co., 399 P. 2d 28,
29, 239 Or. 562; Words and Phrases, 38A p. 441.
For purposes of Rule permitting government to charge
several defendants under one indictment if they have
participated in same "series" of acts or transactions, a
"series" is something more than mere "similar" acts.
33
Opposition to the Motion to Quash of Accused Joseph Estrada
dated June 21, 2001, p. 9.
34
Comment to the Amended Petition dated July 16, 2001, p. 14.
35
United States v. Laub, 385 US 475, 17 L Ed 2d 526, 87 S Ct
574.
36
State v. Nelson, 95 N.W. 2d 678.
37
22 C.J.S. §24 (2); People v. Bevilacqua, 170 N.Y. S. 2d 423;
Lanzetta v. State of New Jersey, 306 U.S. 451, 59 S Ct 618, 83 L.
Ed. 888; United States v. DeCadena, D.C. 105 F. Supp. 202.
38
21 Am Jur §17 p. 129.
39
Tresolini and Shapiro, American Constitutional Law, 3rd
Edition, p. 23.
40
State v. Evans, 245 P. 2d 788, 73 Idaho 50.
41
Abraham, Perry, Freedom and the Court, 1998, p. 25.
The Lawphil Project - Arellano Law Foundation
DISSENTING OPINION
YNARES-SANTIAGO, J.:
It is an ancient maxim in law that in times of frenzy and excitement,
when the desire to do justice is tarnished by anger and vengeance, there
is always the danger that vital protections accorded an accused may be
taken away.
The Plunder Law and its amendment were enacted to meet a national
problem demanding especially immediate and effective attention. By its
very nature, the law deserved or required legislative drafting of the
highest order of clarity and precision.
Substantive due process dictates that there should be no arbitrariness,
unreasonableness or ambiguity in any law which deprives a person of his
life or liberty. The trial and other procedures leading to conviction may
be fair and proper. But if the law itself is not reasonable legislation, due
process is violated. Thus, an accused may not be sentenced to suffer the
lethal injection or life imprisonment for an offense understood only after
judicial construction takes over where Congress left off, and
interpretation supplies its meaning.
The Constitution guarantees both substantive and procedural due
process1 as well as the right of the accused to be informed of the nature
and cause of the accusation against him.2 Substantive due process
requires that a criminal statute should not be vague and uncertain.3 More
explicitly –
That the terms of a penal statute. . . must be sufficiently explicit to
inform those who are subject to it what conduct on their part will render
them liable to penalties, is a well–recognized requirement, consonant
alike with ordinary notions of fair play and the settled rules of law. And
a statute which either forbids or requires the doing of an act in terms so
vague that men of common intelligence must necessarily guess at its
meaning and differ as to its application, violates the first essential of due
process.4
The doctrine of constitutional uncertainty is also based on the right of the
accused to be informed of the nature and cause of the
accusation.5 Fundamental fairness dictates that a person cannot be sent to
jail for a crime that he cannot with reasonable certainty know he was
committing.6 Statutes defining crimes run afoul of the due process clause
if they fail to give adequate guidance to those who would be law-abiding,
to advise defendants of the nature of the offense with which they are
charged or to guide courts trying those who are accused.7 In short, laws
which create crime ought to be so explicit that all men subject to their
penalties may know what acts it is their duty to avoid.8
A reading of the Plunder Law immediately shows that it is phrased in a
manner not susceptible to ready or clear understanding. In the desire to
cover under one single offense of plunder every conceivable criminal
activity committed by a high government official in the course of his
duties, Congress has come out with a law unduly vague, uncertain and
broad.
The doctrines of overbreadth and void-for-vagueness in Constitutional
Law were developed in the context of freedom of speech and of the
press. However, they apply equally, if not more so, to capital offenses. In
the present case, what the law seeks to protect or regulate involves the
deprivation of life itself and not merely the regulation of expression.
In its early formulation, the overbreadth doctrine states that a
governmental purpose to control or prevent activities constitutionally
subject to regulation may not be achieved by means which sweep
unnecessarily broadly and thereby invade the area of protected
freedoms.9
A statute, especially one involving criminal prosecution, must be definite
to be valid. A statute is vague or overbroad, in violation of the due
process clause, where its language does not convey sufficiently definite
warning to the average person as to the prohibited conduct. A statute is
unconstitutionally vague if people of common intelligence must
necessarily guess at its meaning.10
It is not only prosecutors and judges who are concerned. The need for
definiteness applies with greater force to the accused and those in
positions where opportunities for them to commit the proscribed offense
are present. They must understand exactly what prohibited activity will
be punished by capital punishment. Sadly, even the record of
deliberations in Congress cited in the motion to quash shows that even
the members of the Senate who are illustrious lawyers found the Plunder
Law vague.
Under Section 1 of R.A. 7080 and Section 12 of R.A. 7659, the
acquisition of at least P50,000,000.00 of ill-gotten wealth is punished
by reclusion perpetua to death, if committed as follows:
1) Through misappropriation, conversion, misuse, or
malversation of public funds or raids on the public treasury;
2) By receiving, directly or indirectly, any commission, gift,
share, percentage, kickbacks or any other form of pecuniary
benefit from any person and/or entity in connection with any
government contract or project or by reason of the office or
position of the public officer concerned;
3) By the illegal or fraudulent conveyance or disposition of assets
belonging to the National Government or any of its subdivisions,
agencies or instrumentalities or government-owned or controlled
corporations and their subsidiaries;
4) By obtaining, receiving or accepting directly or indirectly any
shares of stock, equity or any other form of interest or
participation including the promise of future employment in any
business enterprise or undertaking;
5) By establishing agricultural, industrial or commercial
monopolies or other combinations and/or implementation of
decrees and orders intended to benefit particular persons or
special interests; or
6) By taking undue advantage of official position, authority,
relationship, connection or influence to unjustly enrich himself or
themselves at the expense and to the damage and prejudice of the
Filipino people and the Republic of the Philippines.11
The crimes of malversation of public funds and bribery, which appear to
be included among the modes of committing plunder, have acquired
well-defined meanings under our present penal statutes. The accused
immediately knows how to defend and justify his actions. The
prosecution understands the quantum and nature of the evidence he has
to produce in court. The Judge can apply the law with straight and
positive judgment because there is no vagueness about it.
The Sandiganbayan, however, has ruled that the Plunder Law does not
make any reference to any specific provision of laws other than R.A.
7080, as amended. It is an entirely new offense where malversation or
bribery become "generic terms" according to the court. And since
"generic" refers to an entire group or class of related matters, the
discretion given to the prosecutor and the judge figuratively runs riot.
Under the same paragraph of the Plunder Law, malversation is lumped
with "misuse of public funds." Misuse can be as innocuous as error or it
can be as severe as corruption or embezzlement. The terms "abuse,"
"distortion," "misapplication," "mismanagement," "poor stewardship,"
"malpractice," "debasement," or "breach of trust," all conceivably fall
under the generic term "misuse." Exactly when does an administrative
offense of misuse become the capital crime of plunder? What degree of
misuse is contemplated under the law?
A penal law violates due process where inherently vague statutory
language permits selective law enforcement.12Under the Plunder Law, a
crusading public officer who steps on too many important toes in the
course of his campaign could be prosecuted for a capital offense, while
for exactly the same acts, an official who tries to please everybody can
be charged whether administratively or for a much lighter offense.
For instance, direct bribery under Article 210 of the Revised Penal Code
is punished with prision mayor in its medium or minimum
periods, prision correccional in its medium period, or prision mayor in
its minimum period, depending on the manner of commission.13 Indirect
bribery under Article 211 is punished with prision correccional in its
medium and maximum periods.14 Under the Plunder Law, the penalty
is reclusion perpetua to death. The void-for-vagueness infirmity
becomes all the more apparent if the proscribed activity is "misuse of
public funds." The prosecutor is given broad powers of selective law
enforcement. For "misuse," exactly the same acts could be punished with
death under the Plunder Law, or mere dismissal with prejudice to future
government employment under the Civil Service Law.
The provision in the Plunder Law on "implementation of decrees and
orders intended to benefit particular persons or special interests" also
calls for more specific elucidation. If the only person benefited is
himself, does that fall under "particular person?" Decrees and orders
issued by a top government official may be intended to benefit certain
segments of society such as farmers, manufacturers, residents of a
geographical area and the like. If in the process a close relative acquires
P50,000,000.00 because of development in that sector solely because of
the decree and without lifting a finger, is that plunder? The vagueness
can be better appreciated by referring to petitioner’s arguments that the
element of mens rea in mala in se crimes has been abolished and the
offenses have been converted to mala prohibita. If the guilty intent is
eliminated, even innocent acts can be plunder. The law was not drafted
for petitioner alone. It applies to all public officers.
As petitioner has stated, what Congress did in enacting the Plunder Law
was to take out the provisions of the Revised Penal Code on
malversation, estafa, bribery, and other crimes committed by public
officers, mix these with special laws on graft and corruption and together
with a couple of non-criminal acts, combine them into a special law and
call it "plunder."
Early in the history of this Court, it ruled that in acts mala in se, the
criminal intent governs. But in those acts mala prohibita, the only
inquiry is: has the law been violated?15 Acts constituting malversation,
estafa, and bribery are mala in se. The courts must inquire into the
criminal intent, the evil nature or wrongful disposition behind the
criminal acts. In mala prohibita crimes, there is a violation of a
prohibitory law and the inquiry is, therefore, has the law been violated?
In the crime of plunder, it is enough that the acts defining malversation
or bribery are described. The court then proceeds to determine whether
the acts fall under the prohibitory terms of the law. Criminal intent no
longer has to be proved. The criminal intent to commit the crime is not
required to be proved. The desire to benefit particular persons does not
have to spring from criminal intent under the special law creating the
crime of plunder. In malversation or bribery under the Revised Penal
Code, the criminal intent is an important element of the criminal acts.
Under the Plunder Law, it is enough that the acts are committed.
Thus, even if the accused can prove lack of criminal intent with respect
to crimes mala in se, this will not exonerate him under the crime mala
prohibita. This violates substantive due process and the standards of fair
play because mens rea is a constitutional guarantee under the due process
clause. Indeed, as stated by the U.S. Supreme Court in Morisette v.
U.S.:16
The Government asks us by a feat of construction radically to change the
weights and balances in the scales of justice. The purpose and obvious
effect of doing away with the requirement of a guilty intent is to ease
the prosecution’s party to conviction, to strip the defendant of such
benefit as he derived at common law from innocence of evil purpose,
and to circumscribe the freedom heretofore allowed juries. Such a
manifest impairment of the immunities of the individual should not
be extended to common law crimes on judicial initiative. (Emphasis
ours)
By grafting several felonies, some mala in se and some mala
prohibita, to constitute the crime of plunder and by doing away with the
standard of proof beyond reasonable doubt for the component elements,
the State would practically be given the judicial imprimatur to impose
the extreme penalty of death on the basis of proof only of the overall
pattern of overt or criminal acts showing unlawful scheme or conspiracy.
This attempt of Congress to tip the scales of criminal justice in favor of
the state by doing away with the element of mens rea and to pave the
way for the accused to be convicted by depriving him of the defense of
criminal intent as to mala in se components of plunder will be anathema
to substantive due process which insures "respect for those personal
immunities which are so rooted in the traditions and conscience of our
people as to be ranked as fundamental."17
Equally disagreeable is the provision of the Plunder Law which does
away with the requirement that each and every component of the
criminal act of plunder be proved and instead limits itself to proving only
a pattern of overt acts indicative of the unlawful scheme or
conspiracy.18 In effect, the law seeks to penalize the accused only on the
basis of a proven scheme or conspiracy, and does away with the rights of
the accused insofar as the component crimes are concerned. In other
words, R.A. No. 7080 circumvents the obligation of the prosecution to
prove beyond reasonable doubt every fact necessary to constitute the
crime of plunder, because the law requires merely proof of a pattern of
overt acts showing an unlawful scheme or conspiracy. What aggravates
matters on this point is that under controlling case law, conspiracy to
defraud is not punishable under the Revised Penal Code.19 Cutting
corners on the burden of proof is unconstitutional because the standard of
reasonable doubt is part of the due process safeguard accorded an
accused. The due process clause protects the accused against conviction
except upon proof beyond a reasonable doubt of every fact necessary to
constitute the crime with which he is charged.20
Under R.A. 7659, plunder is a heinous crime punishable by death. It is
described as grievous, odious and hateful because of its inherent or
magnified wickedness, viciousness, atrocity, and perversity. There can
be no quarrel with the legislative objective of reducing the upsurge of
such crimes which affect sustainable economic development and
undermine the people’s faith in Government and the latter’s ability to
maintain peace and order. Nevertheless, due process commands that even
though the governmental purpose is legitimate and substantial, that
purpose cannot be pursued by means so vague and broad that they
infringe on life or stifle liberty when the end can be more narrowly
achieved through existing penal statutes.
Where the statute has an overbroad sweep just as when it is vague, the
hazard of loss or impairment of life or liberty is critical.21
The problem of vagueness is reduced or eliminated if the different
schemes mentioned in the law as used in the acquisition of ill-gotten
wealth are prosecuted under existing penal law. The offenses are by their
nature distinct and separate from each other and have acquired
established meanings.
Thus, the acts of misappropriation or malversation may be prosecuted as
separate offenses. So may the receipt of commissions, gifts, or kickbacks
by higher officials in connection with government contracts. The four
other methods or schemes mentioned in the law may be the objects of
separate penal statutes.
When the law creates a new crime of plunder through a combination or
series of overt or criminal acts, the courts have to supply missing
elements if conviction is to be achieved.
Bribery is punished as plunder under the law only when there is a
combination or series of criminal acts. But when do certain acts
constitute a combination or series? Does the Plunder law provide that
two or three acts of one crime of bribery constitute a combination or
series which qualify bribery into plunder? Or does bribery have to be
conjoined with the separate offense of malversation to become a
combination? Or with malversation and fraudulent conveyance or
disposition of public assets or one of the other means or schemes before
it becomes a series?
I find it difficult to accept the wide discretion given to the prosecution by
the Plunder Law. An elective official who is a political threat may be
charged for plunder as one single offense punishable by death while one
in the good graces of the powers-that-be is charged only under the
Revised Penal Code.
The confusion generated by a vague law is exemplified in the
informations filed against petitioner in this case. Petitioner was charged
with eight crimes, namely: [1] plunder; [2] violation of Section 3 (e) of
R.A. 3019; [3] violation of Section 3 (a) of R.A. 3019; [4] another
violation of Section 3 (e) of R.A. 3019; [5] violation of Section 3 (c) of
R.A. 3019; [6] violation of Section 7 (d) of R.A. 6713; [7] perjury; [8]
illegal use of alias.
Only twelve days later, the prosecution withdrew five (5) of the
informations which it consolidated into only one offense of plunder. The
prosecution was not clear about the steps to take in instances where the
words "combination" or "series" may or may not apply. It could not
understand the coverage of the law as acts repetitive of the same offense
or acts constituting one crime lumped up with other crimes or both
criminal and non-criminal acts punished as one new offense of plunder.
In the following exchange during the deliberations on Senate Bill No.
733, Senators Neptali Gonzales and Wigberto Tanada voiced serious
doubts on the constitutionality of the definition of plunder, thus:
Senator Gonzales:
To commit the offense of plunder, as defined in this act, and while
constituting a single offense, it must consist of a series of overt or
criminal acts, such as bribery, extortion, malversation of public funds,
swindling, falsification of public documents, coercion, theft, fraud, and
illegal exaction and graft or corrupt practices and like offenses. Now,
Mr. President, I think this provision, by itself will be vague. I am
afraid that it may be faulted for being violative of the due process
clause and the right to be informed of the nature and cause of
accusation of an accused. Because what is meant by "series of overt
or criminal acts?" I mean, would 2, 4, or 5 constitute a
series? During the period of amendments, can we establish a minimum
of overt acts like, for example, robbery in band? The law defines what is
robbery in band by the number of participants therein. In this particular
case, probably, we can statutorily provide for the definition of
"series" so that two, for example, would that already be a series?
Or, three, what would be the basis for such determination?
Senator Tanada:
I think, Mr. President, that would be called for, this being a penal
legislation, we should be very clear as to what it encompasses;
otherwise, we may contravene the constitutional provision on the
right of accused to due process. (Emphasis ours)22
The foregoing concerns to statutorily provide for the definition of
"series" or "combination" have, however, not been addressed and the
terms were left undefined. The law, as presently crafted, does not specify
whether a "series" means two, three, four or even more of the overt or
criminal acts listed in Section 1 (d) of R.A. 7080.
Even more difficult to accept is when the trial court has to supply the
missing elements, in effect taking over corrective or punitive legislation
from Congress. The attempts of the Sandiganbayan in the questioned
Resolution do not clarify. They instead serve to confuse and increase the
ambiguity even more.
The Sandiganbayan interprets the words "combination" and "series" of
overt or criminal acts through terms found in American decisions like
"pattern," "conspiracy," "over-all unlawful scheme," or "general plan of
action or method."
The above definitions are not found in the Plunder Law. The use of such
phrases as "over-all scheme" or "general plan" indicates that the
Sandiganbayan is expanding the coverage of the law through the use of
ambiguous phrases capable of dual or multiple applications. When do
two or three acts of the same offense of malversation constitute a
"pattern," "a general plan of action," or an "over-all scheme?" Would one
malversation in the first week of a public officer’s tenure and another
similar act six (6) years later become a "combination," a "pattern," or a
"general plan of action?"
I agree with petitioner’s concern over the danger that the trial court may
allow the specifications of details in an information to validate a statute
inherently void for vagueness. An information cannot rise higher than
the statute upon which it is based. Not even the construction by the
Sandiganbayan of a vague or ambiguous provision can supply the
missing ingredients of the Plunder Law.
The right of an accused to be informed of the nature and cause of the
accusation against him is most often exemplified in the care with which a
complaint or information should be drafted. However, the clarity and
particularity required of an information should also be present in the law
upon which the charges are based. If the penal law is vague, any
particularity in the information will come from the prosecutor. The
prosecution takes over the role of Congress.
The fact that the details of the charges are specified in the Information
will not cure the statute of its constitutional infirmity. If on its face the
challenged provision is repugnant to the due process clause, specification
of details of the offense intended to be charged would not serve to
validate it.23 In other words, it is the statute, not the accusation under it,
that prescribes the rule to govern conduct and warns against
transgression. No one may be required at peril of life, liberty or property
to speculate as to the meaning of penal statutes. All are entitled to be
informed as to what the State commands or forbids.24
Definiteness is a due process requirement. It is especially important in its
application to penal statutes. Vagueness and unintelligibility will
invariably lead to arbitrary government action. The purpose of the due
process clause is to exclude everything that is arbitrary and capricious
affecting the rights of the citizen.25 Congress, in exercising its power to
declare what acts constitute a crime, must inform the citizen with
reasonable precision what acts it intends to prohibit so that he may have
a certain understandable rule of conduct and know what acts it is his duty
to avoid.26
The questioned statutes were enacted purportedly in the interest of
justice, public peace and order, and the rule of law. These purposes are
not served by R.A. Nos. 7080 and 7659. These statutes allow the
prosecutors and the courts arbitrary and too broad discretionary powers
in their enforcement. Fair, equal and impartial justice would be denied.
For all the foregoing reasons, I vote to grant the petition and nullify the
Plunder Law for being unconstitutional.
Footnotes
1
Constitution, Article III, Sections 1, 12 & 14.
2
Constitution, Article III, Section 14.
3
People v. Nazario, 165 SCRA 186, 195 [1988].
4
Connally v. General Construction Co., 269 U.S. 385 [1926].
5
Yu Cong Eng v. Trinidad, 271 U.S. 500 [1926].
6
People v. Nazario, supra; Scull v. Commonwealth, 359 U.S.
344, 353.
7 14
Musser v. Utah, 333 U.S. 95; 92 L Ed. 562.
8
U.S. v. Brewer, 139 U.S. 278, 35 L Ed. 190, 193.
9
National Association for the Advancement of Colored People
(NAACP) v. Alabama, 377 U.S. 288.
10
U.S. v. Petrillo, 332 U.S. 1; U.S. v. Spector, 343 U.S. 169;
U.S. v. Darby, 312 U.S. 100.
11
Republic Act No. 7080, Section 1 (d).
12
Smith v. Goguen, 415 U.S. 566.
13
"Any public officer who shall agree to perform an act
constituting a crime, in connection with the performance of his
official duties, in consideration of any offer, promise, gift or
present received by such officer, personally or through the
mediation of another, shall suffer the penalty of prision mayor in
its medium and minimum periods and a fine of not less than three
times the value of the gift, in addition to the penalty
corresponding to the crime agreed upon, if the same shall have
been committed.
"If the gift was accepted by the officer in consideration of
the execution of an act which does not constitute a crime,
and the officer executed said act, he shall suffer the same
penalty provided in the preceding paragraph; and if said
act shall not have been accomplished, the officer shall
suffer the penalties of prision correccional in its medium
period and a fine of not less than twice the value of such
gift.
"If the object for which the gift was received or promised
was to make the public officer refrain from doing
something which it was his official duty to do, he shall
suffer the penalties of prision correccionalin its
maximum period to prision mayor in its minimum period
and a fine of not less than three times the value of such
gift.
"In addition to the penalties provided in the preceding
paragraphs, the culprit shall suffer the penalty of special
temporary disqualification.
"The provisions contained in the preceding paragraphs
shall be made applicable to assessors, arbitrators,
appraisal and claim commissioners, experts or any other
persons performing public duties."
"The penalties of prision correccional in its medium and
maximum periods, suspension and public censure shall be
imposed upon any public officer who shall accept gifts offered to
him by reason of his office."
15
U.S. v. Go Chico, 14 Phil. 134 [1909].
16
342 U.S. 246.
17
Rochin v. California, 324 U.S. 165, 168.
18
Republic Act No. 7080, "Section 4. Rule of Evidence. –-- For
purposes of establishing the crime of plunder, it shall not be
necessary to prove each and every criminal act done by the
accused in furtherance of the scheme or conspiracy to amass,
accumulate of acquire ill-gotten wealth, it being sufficient to
establish beyond reasonable doubt a pattern of overt criminal acts
indicative of the overall unlawful scheme or conspiracy."
19
U.S. v. Lim Buanco, 14 Phil. 472 [1910]; U.S. v. Remigio, 39
Phil. 599 [1919].
20
In re Winship, 397 U.S. 358 ,364.
 21
See Keyshian v. Board of Regents of the University of the
State of New York, 385 U.S. 589; and Shelton v. Tucker, 364
U.S. 479.
22
Record of the Senate, June 5, 1989, Vol. IV, No. 140, p. 1310.
23
Lanzetta v. New Jersey, 306 U.S. 451, 453 (1939).
24
Ibid., p. 453.
25
Nebbia v. New York, 291 U.S. 502.
26
Musser v. Utah, supra; Giaccio v. Pennsylvania, 382 U.S. 399;
United States v. Brewer, supra.
The Lawphil Project - Arellano Law Foundation
MENDOZA, J., concurring in the judgment:
Before I explain my vote, I think it necessary to restate the basic facts.
Petitioner Joseph Ejercito Estrada was President of the Philippines until
January 20, 2001 when he was forced to vacate the presidency by people
power and then Vice President Gloria Macapagal-Arroyo succeeded him
in office.1He was charged, in eight cases filed with the Sandiganbayan,
with various offenses committed while in office, among them plunder,
for allegedly having amassed ill-gotten wealth in the amount of P4.1
billion, more or less. He moved to quash the information for plunder on
the ground that R.A. No. 7080, otherwise called the Anti-Plunder Law, is
unconstitutional and that the information charges more than one offense.
In its resolution dated July 9, 2001, the Sandiganbayan denied
petitioner’s motion, along with those filed by his co-accused, Edward
Serapio, and his son, Jose "Jinggoy" Estrada. Petitioner brought this
petition for certiorari and prohibition under Rule 65 to set aside the
Sandiganbayan’s resolution principally on the ground that the Anti-
Plunder Law is void for being vague and overbroad. We gave due course
to the petition and required respondents to file comments and later heard
the parties in oral arguments on September 18, 2001 and on their
memoranda filed on September 28, 2001 to consider the constitutional
claims of petitioner.
I. THE ANTI-PLUNDER LAW
The Anti-Plunder Law (R.A. No. 7080) was enacted by Congress on July
12, 1991 pursuant to the constitutional mandate that "the State shall
maintain honesty and integrity in the public service and take positive and
effective measures against graft and corruption."2 Section 2 of the statute
provides:
Definition of the Crime of Plunder; Penalties. ¾ Any public officer who,
by himself or in connivance with members of his family, relatives by
affinity or consanguinity, business associates, subordinates or other
persons, amasses, accumulates or acquires ill-gotten wealth through a
combination or series of overt or criminal acts as described in Section
1(d) hereof in the aggregate amount or total value of at least Fifty million
pesos (P50,000,000.00) shall be guilty of the crime of plunder and shall
be punished by reclusion perpetua to death. Any person who participated
with the said public officer in the commission of an offense contributing
to the crime of plunder shall likewise be punished for such offense. In
the imposition of penalties, the degree of participation and the attendance
of mitigating and extenuating circumstances, as provided by the Revised
Penal Code, shall be considered by the court. The court shall declare any
and all ill-gotten wealth and their interests and other incomes and assets
including the properties and shares of stocks derived from the deposit or
investment thereof forfeited in favor of the State. (As amended by Sec.
12, R.A. No. 7659).
The term "ill-gotten wealth" is defined in §1(d) as follows:
"Ill-gotten wealth," means any asset, property, business enterprise or
material possession of any person within the purview of Section Two (2)
hereof, acquired by him directly or indirectly through dummies,
nominees, agents, subordinates and/or business associates by any
combination or series of the following means or similar schemes:
1) Through misappropriation, conversion, misuse, or
malversation of public funds or raids on the public treasury.
2) By receiving, directly or indirectly, any commission, gift,
share, percentage, kickbacks or any other form of pecuniary
benefit from any person and/or entity in connection with any
government contract or project or by reason of the office or
position of the public officer concerned;
3) By the illegal or fraudulent conveyance or disposition of assets
belonging to the National Government or any of its subdivisions,
agencies or instrumentalities or government-owned or controlled
corporations and their subsidiaries.
4) By obtaining, receiving or accepting directly or indirectly any
shares of stock, equity or any other form of interest or
 participation including the promise of future employment in any
business enterprise or undertaking;
5) By establishing agricultural, industrial or commercial
monopolies or other combinations and/or implementation of
decrees and orders intended to benefit particular persons or
special interests; or
6) By taking undue advantage of official position, authority,
relationship, connection or influence to unjustly enrich himself or
themselves at the expense and to the damage and prejudice of the
Filipino people and the Republic of the Philippines.
Section 4 of the said law states:
Rule of Evidence. ¾ For purposes of establishing the crime of plunder, it
shall not be necessary to prove each and every criminal act done by the
accused in furtherance of the scheme or conspiracy to amass, accumulate
or acquire ill-gotten wealth, it being sufficient to establish beyond
reasonable doubt a pattern of overt or criminal acts indicative of the
overall unlawful scheme or conspiracy.
II. ANTI-PLUNDER LAW NOT TO BE JUDGED
"ON ITS FACE"
The amended information against petitioner charges violations of §2, in
relation to §1(d)(1)(2), of the statute. It reads:
AMENDED INFORMATION
The undersigned Ombudsman Prosecutor and OIC-Director, EPIB,
Office of the Ombudsman, hereby accuses former President of the
Republic of the Philippines, Joseph Ejercito Estrada a.k.a "Asiong
Salonga" and a.k.a "Jose Velarde," together with Jose "Jinggoy" Estrada,
Charlie "Atong" Ang, Edward Serapio, Yolanda T. Ricaforte, Alma
Alfaro, John Doe a.k.a. Eleuterio Tan or Eleuterio Ramos Tan or Mr. Uy,
Jane Doe a.k.a. Delia Rajas, and John Does & Jane Does, of the crime of
plunder, defined and penalized under R.A. No. 7080, as amended by Sec.
12 of R.A. No. 7659, committed as follows:
That during the period from June, 1998 to January, 2001, in the
Philippines, and within the jurisdiction of this Honorable Court, accused
Joseph Ejercito Estrada, then a public officer, being then the President of
the Republic of the Philippines, by himself and/or in
connivance/conspiracy with his co-accused, who are members of his
family, relatives by affinity or consanguinity, business associates,
subordinates and/or other persons, by taking undue advantage of his
official position, authority, relationship, connection, or influence, did
then and there wilfully, unlawfully and criminally amass, accumulate and
acquire by himself, directly or indirectly, ill-gotten wealth in the
aggregate amount or total value of four billion ninety seven million eight
hundred four thousand one hundred seventy three pesos and seventeen
centavos [₱4,097,804,173.17], more or less, thereby unjustly enriching
himself or themselves at the expense and to the damage of the Filipino
people and the Republic of the Philippines, through any or a combination
or a series of overt or criminal acts, or similar schemes or means,
described as follows:
(a) by receiving or collecting, directly or indirectly, on several
instances, money in the aggregate amount of five hundred forty-
five million pesos (₱545,000,000.00), more or less, from illegal
gambling in the form of gift, share, percentage, kickback or any
form of pecuniary benefit, by himself and/or in connivance with
co-accused Charlie "Atong" Ang, Jose "Jinggoy" Estrada,
Yolanda T. Ricaforte, Edward Serapio, and John Does and Jane
Does, in consideration of toleration or protection of illegal
gambling;
(b) by diverting, receiving, misappropriating, converting or
misusing directly or indirectly, for his or their personal gain and
benefit, public funds in the amount of ONE HUNDRED
THIRTY MILLION PESOS [₱130,000,000.00], more or less,
representing a portion of the two hundred million pesos
[₱200,000,000.00] tobacco excise tax share allocated for the
Province of Ilocos Sur under R.A. No. 7171, by himself and/or in
connivance with co-accused Charlie "Atong" Ang, Alma Alfaro,
John Doe a.k.a. Eleuterio Tan or Eleuterio Ramos Tan or Mr. Uy,
and Jane Doe a.k.a. Delia Rajas, and other John Does and Jane
Does;
(c) by directing, ordering and compelling, for his personal gain
and benefit, the Government Service Insurance System (GSIS) to
purchase 351,878,000 shares of stocks, more or less, and the
Social Security System (SSS), 329,855,000 shares of stocks,
more or less, of the Belle Corporation in the amount of more or
less one billion one hundred two million nine hundred sixty five
thousand six hundred seven pesos and fifty centavos
[₱1,102,965,607.50] and more or less seven hundred forty four
million six hundred twelve thousand and four hundred fifty pesos
[₱744,612,450.00], respectively, or a total of more or less one
 billion eight hundred forty seven million five hundred seventy
eight thousand fifty seven pesos and fifty centavos
[₱1,847,578,057.50]; and by collecting or receiving, directly or
indirectly, by himself and/or in connivance with John Does and
Jane Does, commissions or percentages by reason of said
purchases of shares of stock in the amount of one hundred eighty
nine million seven hundred thousand pesos [₱189,700,000.00],
more or less, from the Belle Corporation which became part of
the deposit in the Equitable-PCI Bank under the account name
"Jose Velarde";
(d) by unjustly enriching himself from commissions, gifts, shares,
percentages, kickbacks, or any form of pecuniary benefits, in
connivance with John Does and Jane Does, in the amount of
more or less three billion two hundred thirty three million one
hundred four thousand one hundred seventy three pesos and
seventeen centavos [₱3,233,104,173.17] and depositing the same
under his account name "Jose Velarde" at the Equitable-PCI
Bank.
CONTRARY TO LAW.
Manila for Quezon City, Philippines, 18 April 2001
But, although this is a prosecution under §2, in relation to §1(d)(1)(2),
what we are seeing here is a wholesale attack on the validity of the entire
statute. Petitioner makes little effort to show the alleged invalidity of the
statute as applied to him. His focus is instead on the statute as a whole as
he attacks "on their face" not only §§1(d)(1)(2) of the statute but also its
other provisions which deal with plunder committed by illegal or
fraudulent disposition of government assets (§1(d)(3)), acquisition of
interest in business (§1(d)(4)), and establishment of monopolies and
combinations or implementation of decrees intended to benefit particular
persons or special interests (§1(d)(5)).
These other provisions of the statute are irrelevant to this case. What
relevance do questions regarding the establishment of monopolies and
combinations, or the ownership of stocks in a business enterprise, or the
illegal or fraudulent dispositions of government property have to the
criminal prosecution of petitioner when they are not even mentioned in
the amended information filed against him? Why should it be important
to inquire whether the phrase "overt act" in §1(d) and §2 means the same
thing as the phrase "criminal act" as used in the same provisions when
the acts imputed to petitioner in the amended information are criminal
acts? Had the provisions of the Revised Penal Code been subjected to
this kind of line-by-line scrutiny whenever a portion thereof was
involved in a case, it is doubtful if we would have the jurisprudence on
penal law that we have today. The prosecution of crimes would certainly
have been hampered, if not stultified. We should not even attempt to
assume the power we are asked to exercise. "The delicate power of
pronouncing an Act of Congress unconstitutional is not to be exercised
with reference to hypothetical cases . . . . In determining the sufficiency
of the notice a statute must of necessity be examined in the light of the
conduct with which a defendant is charged."3
Nonetheless, it is contended that because these provisions are void for
being vague and overbroad, the entire statute, including the part under
which petitioner is being prosecuted, is also void. And if the entire
statute is void, there is no law under which he can be prosecuted for
plunder. Nullum crimen sine lege, nullum poena sine lege.
Two justifications are advanced for this facial challenge to the validity of
the entire statute. The first is that the statute comes within the specific
prohibitions of the Constitution and, for this reason, it must be given
strict scrutiny and the normal presumption of constitutionality should not
be applied to it nor the usual judicial deference given to the judgment of
Congress.4 The second justification given for the facial attack on the
Anti-Plunder Law is that it is vague and overbroad.5
We find no basis for such claims either in the rulings of this Court or of
those of the U.S. Supreme Court, from which petitioner’s counsel
purports to draw for his conclusions. We consider first the claim that the
statute must be subjected to strict scrutiny.
A. Test of Strict Scrutiny Not Applicable to Penal Statutes
Petitioner cites the dictum in Ople v. Torres6 that "when the integrity of a
fundamental right is at stake, this Court will give the challenged law,
administrative order, rule or regulation stricter scrutiny" and that "It will
not do for authorities to invoke the presumption of regularity in the
performance of official duties." As will presently be shown, "strict
scrutiny," as used in that decision, is not the same thing as the "strict
scrutiny" urged by petitioner. Much less did this Court rule that because
of the need to give "stricter scrutiny" to laws abridging fundamental
freedoms, it will not give such laws the presumption of validity.
Petitioner likewise cites "the most celebrated footnote in [American]
constitutional law," i.e., footnote 4 of the opinion in United States v.
Carolene Products Co.,7 in which it was stated:
There may be narrower scope for operation of the presumption of
constitutionality when legislation appears on its face to be within a
specific prohibition of the Constitution, such as those of the first ten
amendments, which are deemed equally specific when held to be
embraced within the Fourteenth.
It is unnecessary to consider now whether legislation which restricts
those political processes which can ordinarily be expected to bring about
repeal of undesirable legislation, is to be subjected to more exacting
judicial scrutiny under the general prohibitions of the Fourteenth
Amendment than are most other types of legislation.
Nor need we inquire whether similar considerations enter into the review
of statutes directed at particular religious, or national, or racial
minorities: whether prejudice against discrete and insular minorities may
be a special condition, which tends seriously to curtail the operation of
those political processes ordinarily to be relied upon to protect
minorities, and which may call for a correspondingly more searching
judicial inquiry.
Again, it should be noted that what the U.S. Supreme Court said is that
"there may be narrower scope for the operation of the presumption of
constitutionality" for legislation which comes within the first ten
amendments to the American Federal Constitution compared to
legislation covered by the Fourteenth Amendment Due Process Clause.
The American Court did not say that such legislation is not to be
presumed constitutional, much less that it is presumptively invalid, but
only that a "narrower scope" will be given for the presumption of
constitutionality in respect of such statutes. There is, therefore, no
warrant for petitioner’s contention that "the presumption of
constitutionality of a legislative act is applicable only where the Supreme
Court deals with facts regarding ordinary economic affairs, not where the
interpretation of the text of the Constitution is involved."8
What footnote 4 of the Carolene Products case posits is a double
standard of judicial review: strict scrutiny for laws dealing with freedom
of the mind or restricting the political process, and deferential or rational
basis standard of review for economic legislation. As Justice (later Chief
Justice) Fernando explained in Malate Hotel and Motel Operators Ass’n
v. The City Mayor,9 this simply means that "if the liberty involved were
freedom of the mind or the person, the standard for the validity of
governmental acts is much more rigorous and exacting, but where the
liberty curtailed affects what are at the most rights of property, the
permissible scope of regulatory measures is wider."
Hence, strict scrutiny is used today to test the validity of laws dealing
with the regulation of speech, gender, or race and facial challenges are
allowed for this purpose. But criminal statutes, like the Anti-Plunder
Law, while subject to strict construction, are not subject to strict scrutiny.
The two (i.e., strict construction and strict scrutiny) are not the same. The
rule of strict construction is a rule of legal hermeneutics which deals with
the parsing of statutes to determine the intent of the legislature. On the
other hand, strict scrutiny is a standard of judicial review for determining
the quality and the amount of governmental interest brought to justify the
regulation of fundamental freedoms. It is set opposite such terms as
"deferential review" and "intermediate review."
Thus, under deferential review, laws are upheld if they rationally further
a legitimate governmental interest, without courts seriously inquiring
into the substantiality of such interest and examining the alternative
means by which the objectives could be achieved. Under intermediate
review, the substantiality of the governmental interest is seriously looked
into and the availability of less restrictive alternatives are considered.
Under strict scrutiny, the focus is on the presence of compelling, rather
than substantial, governmental interest and on the absence of less
restrictive means for achieving that interest.10
Considering these degrees of strictness in the review of statutes, how
many criminal laws can survive the test of strict scrutiny to which
petitioner proposes to subject them? How many can pass muster if, as
petitioner would have it, such statutes are not to be presumed
constitutional? Above all, what will happen to the State’s ability to deal
with the problem of crimes, and, in particular, with the problem of graft
and corruption in government, if criminal laws are to be upheld only if it
is shown that there is a compelling governmental interest for making
certain conduct criminal and if there is no other means less restrictive
than that contained in the law for achieving such governmental interest?
B. Vagueness and Overbreadth Doctrines, as Grounds for Facial
Challenge,
Not Applicable to Penal Laws
Nor do allegations that the Anti-Plunder Law is vague and overbroad
justify a facial review of its validity. The void-for-vagueness doctrine
states that "a statute which either forbids or requires the doing of an act
in terms so vague that men of common intelligence must necessarily
guess at its meaning and differ as to its application, violates the first
essential of due process of law."11 The overbreadth doctrine, on the other
hand, decrees that "a governmental purpose may not be achieved by
means which sweep unnecessarily broadly and thereby invade the area of
protected freedoms."12
A facial challenge is allowed to be made to a vague statute and to one
which is overbroad because of possible "chilling effect" upon protected
speech. The theory is that "[w]hen statutes regulate or proscribe speech
and no readily apparent construction suggests itself as a vehicle for
rehabilitating the statutes in a single prosecution, the transcendent value
to all society of constitutionally protected expression is deemed to justify
allowing attacks on overly broad statutes with no requirement that the
person making the attack demonstrate that his own conduct could not be
regulated by a statute drawn with narrow specificity."13 The possible
harm to society in permitting some unprotected speech to go unpunished
is outweighed by the possibility that the protected speech of others may
be deterred and perceived grievances left to fester because of possible
inhibitory effects of overly broad statutes.
This rationale does not apply to penal statutes. Criminal statutes have
general in terrorem effect resulting from their very existence, and, if
facial challenge is allowed for this reason alone, the State may well be
prevented from enacting laws against socially harmful conduct. In the
area of criminal law, the law cannot take chances as in the area of free
speech.
The overbreadth and vagueness doctrines then have special application
only to free speech cases. They are inapt for testing the validity of penal
statutes. As the U.S. Supreme Court put it, in an opinion by Chief Justice
Rehnquist, "we have not recognized an ‘overbreadth’ doctrine outside
the limited context of the First Amendment."14 In Broadrick v.
Oklahoma,15 the Court ruled that "claims of facial overbreadth have been
entertained in cases involving statutes which, by their terms, seek to
regulate only spoken words" and, again, that "overbreadth claims, if
entertained at all, have been curtailed when invoked against ordinary
criminal laws that are sought to be applied to protected conduct." For this
reason, it has been held that "a facial challenge to a legislative Act is …
the most difficult challenge to mount successfully, since the challenger
must establish that no set of circumstances exists under which the Act
would be valid."16 As for the vagueness doctrine, it is said that a litigant
may challenge a statute on its face only if it is vague in all its possible
applications. "A plaintiff who engages in some conduct that is clearly
proscribed cannot complain of the vagueness of the law as applied to the
conduct of others."17
In sum, the doctrines of strict scrutiny, overbreadth, and vagueness are
analytical tools developed for testing "on their faces" statutes in free
speech cases or, as they are called in American law, First Amendment
cases. They cannot be made to do service when what is involved is a
criminal statute. With respect to such statute, the established rule is that
"one to whom application of a statute is constitutional will not be heard
to attack the statute on the ground that impliedly it might also be taken as
applying to other persons or other situations in which its application
might be unconstitutional."18 As has been pointed out, "vagueness
challenges in the First Amendment context, like overbreadth challenges
typically produce facial invalidation, while statutes found vague as a
matter of due process typically are invalidated [only] ‘as applied’ to a
particular defendant."19 Consequently, there is no basis for petitioner’s
claim that this Court review the Anti-Plunder Law on its face and in its
entirety.
C. Anti-Plunder Law Should be Construed "As Applied"
Indeed, "on its face" invalidation of statutes results in striking them
down entirely on the ground that they might be applied to parties not
before the Court whose activities are constitutionally protected.20 It
constitutes a departure from the case and controversy requirement of the
Constitution and permits decisions to be made without concrete factual
settings and in sterile abstract contexts.21 But, as the U.S. Supreme Court
pointed out in Younger v. Harris:22
[T]he task of analyzing a proposed statute, pinpointing its deficiencies,
and requiring correction of these deficiencies before the statute is put
into effect, is rarely if ever an appropriate task for the judiciary. The
combination of the relative remoteness of the controversy, the impact on
the legislative process of the relief sought, and above all the speculative
and amorphous nature of the required line-by-line analysis of detailed
statutes,...ordinarily results in a kind of case that is wholly unsatisfactory
for deciding constitutional questions, whichever way they might be
decided.
This is the reason "on its face" invalidation of statutes has been described
as "manifestly strong medicine," to be employed "sparingly and only as a
last resort,"23 and is generally disfavored.24 In determining the
constitutionality of a statute, therefore, its provisions which are alleged
to have been violated in a case must be examined in the light of the
conduct with which the defendant is charged.25
This brings me to the question whether, as applied, §2, in relation to
§1(d)(1)(2), of the Anti-Plunder Law is void on the ground of vagueness
and overbreadth.
III. ANTI-PLUNDER LAW NEITHER VAGUE NOR OVERBROAD
As earlier noted, the case against petitioner Joseph Ejercito Estrada in the
Sandiganbayan is for violation of §2, in relation to §1(d)(1)(2), of the
Anti-Plunder Law, which, so far as pertinent, provide:
SEC. 2. Definition of the Crime of Plunder; Penalties. ¾ Any public
officer who, by himself or in connivance with members of his family,
relatives by affinity or consanguinity, business associates, subordinates
or other persons, amasses, accumulates or acquires ill-gotten wealth
through a combination or series of overt or criminal acts as described in
Section 1(d) hereof in the aggregate amount or total value of at least
Fifty million pesos (P50,000,000.00) shall be guilty of the crime of
plunder and shall be punished by reclusion perpetua to death....
SEC. 1. Definition of Terms. ¾ ...
(d) "Ill-gotten wealth," means any asset, property, business enterprise or
material possession of any person within the purview of Section Two (2)
hereof, acquired by him directly or indirectly through dummies,
nominees, agents, subordinates and/or business associates by any
combination or series of the following means or similar schemes:
1) Through misappropriation, conversion, misuse, or
malversation of public funds or raids on the public treasury.
2) By receiving, directly or indirectly, any commission, gift,
share, percentage, kickbacks or any other form of pecuniary
benefit from any person and/or entity in connection with any
government contract or project or by reason of the office or
position of the public officer concerned;
The charge is that in violation of these provisions, during the period June
1998 to January 2001, petitioner, then the President of the Philippines,
willfully, unlawfully, and criminally amassed wealth in the total amount
of P4,097,804,173.17, more or less, through "a combination or series of
overt or criminal acts," to wit: (1) by receiving or collecting the total
amount of P545,000,000.00, more or less, from illegal gambling by
himself and/or in connivance with his co-accused named therein, in
exchange for protection of illegal gambling; (2) by misappropriating,
converting, or misusing, by himself or in connivance with his co-accused
named therein, public funds amounting to P130,000,000.00, more or
less, representing a portion of the share of the Province of Ilocos Sur in
the tobacco excise tax; (3) by ordering the GSIS and the SSS to buy
shares of stocks of the Belle Corp., worth P1,102,965,607.50 and
P744,612,450.00 respectively, or the total amount of P1,847,578,057.50,
for which he received as commission the amount of P189,700,000.00,
more or less, from Belle Corp.; (4) by unjustly enriching himself from
commissions, gifts, shares, percentages, and kickbacks in the amount of
P3,233,104,173.17, which he deposited in the Equitable-PCI Bank under
the name of "Jose Velarde."
Anyone reading the law in relation to this charge cannot possibly be
mistaken as to what petitioner is accused of in Criminal Case No. 26558
of the Sandiganbayan. But, repeatedly, petitioner complains that the law
is vague and deprives him of due process. He invokes the ruling
in Connally v. General Constr. Co.26 that "a statute which either forbids
or requires the doing of an act in terms so vague that men of common
intelligence must necessarily guess at its meaning and differ as to its
application, violates the first essential of due process of law." He does
this by questioning not only §2, in relation to §1(d)(1)(2), as applied to
him, but also other provisions of the Anti-Plunder Law not involved in
this case. In 55 out of 84 pages of discussion in his Memorandum,
petitioner tries to show why on their face these provisions are vague and
overbroad by asking questions regarding the meaning of some words and
phrases in the statute, to wit:
1. Whether "series" means two, three, or four overt or criminal
acts listed in §1(d) in view of the alleged divergence of
interpretation given to this word by the Ombudsman, the Solicitor
General, and the Sandiganbayan, and whether the acts in a series
should be directly related to each other;
2. Whether "combination" includes two or more acts or at least
two of the "means or similar schemes" mentioned in §1(d);
3. Whether "pattern" as used in §1(d) must be related to the word
"pattern" in §4 which requires that it be "indicative of an overall
unlawful scheme or conspiracy";
4. Whether "overt" means the same thing as "criminal";
5. Whether "misuse of public funds" is the same as "illegal use of
public property or technical malversation";
6. Whether "raids on the public treasury" refers to raids on the
National Treasury or the treasury of a province or municipality;
 7. Whether the receipt or acceptance of a gift, commission,
kickback, or pecuniary benefits in connection with a government
contract or by reason of his office, as used in §1(d)(2), is the
same as bribery in the Revised Penal Code or those which are
considered corrupt practices of public officers;
8. Whether "illegal or fraudulent conveyance or disposition of
assets belonging to the National Government," as used in
§1(d)(3), refers to technical malversation or illegal use of public
funds or property in the Revised Penal Code;
9. Whether mere ownership of stocks in a private corporation,
such as a family firm engaged in fishing, is prohibited under
§1(d)(4);
10. Whether the phrase "monopolies or other combinations in
restraint of trade" in §1(d)(5) means the same thing as
"monopolies and combinations in restraint of trade" in the
Revised Penal Code because the latter contemplates monopolies
and combinations established by any person, not necessarily a
public officer; and
11. Whether under §1(d)(5) it is the public officer who intends to
confer benefit on a particular person by implementing a decree or
it is the decree that is intended to benefit the particular person and
the public officer simply implements it.
Many more questions of this tenor are asked in the memorandum of
petitioner27 as well as in the dissent of MR. JUSTICE KAPUNAN. Not
only are they irrelevant to this case, as already pointed out. It is also
evident from their examination that what they present are simply
questions of statutory construction to be resolved on a case-to-case basis.
Consider, for example, the following words and phrases in §1(d) and §2:
A. "Combination or series of overt or criminal acts"
Petitioner contends that the phrase "combination or series of overt, or
criminal acts" in §1(d) and §2 should state how many acts are needed in
order to have a "combination" or a "series." It is not really required that
this be specified. Petitioner, as well as MR. JUSTICE KAPUNAN, cites
the following remarks of Senators Gonzales and Tañada during the
discussion of S. No. 733 in the Senate:
SENATOR GONZALES. To commit the offense of plunder, as defined
in this Act while constituting a single offense, it must consist of a series
of overt or criminal acts, such as bribery, extortion, malversation of
public funds, swindling, falsification of public documents, coercion,
theft, fraud, and illegal exaction, and graft or corrupt practices act and
like offenses. Now, Mr. President, I think, this provision, by itself, will
be vague. I am afraid that it might be faulted for being violative of the
due process clause and the right to be informed of the nature and cause
of accusation of an accused. Because, what is meant by "series of overt
or criminal acts"? I mean, would 2, 3, 4 or 5 constitute a series? During
the period of amendments, can we establish a minimum of overt acts
like, for example, robbery in band? The law defines what is robbery in
band by the number of participants therein.
In this particular case, probably, we can statutorily provide for the
definition of "series" so that two, for example, would that be already a
series? Or, three, what would be the basis for such a determination?
SENATOR TAÑADA. I think, Mr. President, that would be called for,
this being a penal legislation, we should be very clear as to what it
encompasses; otherwise, we may contravene the constitutional provision
on the right of the accused to due process.28
But, as the later discussion in the Senate shows, the senators in the end
reached a consensus as to the meaning of the phrase so that an
enumeration of the number of acts needed was no longer proposed. Thus,
the record shows:
SENATOR MACEDA. In line with our interpellations that sometimes
"one" or maybe even "two" acts may already result in such a big amount,
on line 25, would the Sponsor consider deleting the words "a series of
overt or." To read, therefore: "or conspiracy COMMITTED by criminal
acts such." Remove the idea of necessitating "a series." Anyway, the
criminal acts are in the plural.
SENATOR TAÑADA. That would mean a combination of two or more
of the acts mentioned in this.
THE PRESIDENT. Probably, two or more would be . . .
SENATOR MACEDA. Yes, because "a series" implies several or many;
two or more.
SENATOR TAÑADA: Accepted, Mr. President.
....
THE PRESIDENT: If there is only one, then he has to be prosecuted
under the particular crime. But when we say "acts of plunder" there
should be, at least, two or more.
SENATOR ROMULO: In other words, that is already covered by
existing laws, Mr. President.29
Indeed, the record shows that no amendment to S. No. 733 was proposed
to this effect. To the contrary, Senators Gonzales and Tañada voted in
favor of the bill on its third and final reading on July 25, 1989. The
ordinary meaning of the term "combination" as the "union of two things
or acts" was adopted, although in the case of "series," the senators agreed
that a repetition of two or more times of the same thing or act would
suffice, thus departing from the ordinary meaning of the word as "a
group of usually three or more things or events standing or succeeding in
order and having a like relationship to each other," or "a spatial or
temporal succession of persons or things," or "a group that has or admits
an order of arrangement exhibiting progression."30
In the Bicameral Conference Committee on Justice meeting held on May
7, 1991, the same meanings were given to the words "combination" and
"series." Representative Garcia explained that a combination is
composed of two or more of the overt or criminal acts enumerated in
§1(d), while a series is a repetition of any of the same overt or criminal
acts. Thus:
REP. ISIDRO: I am just intrigued again by our definition of plunder. We
say, THROUGH A COMBINATION OR SERIES OF OVERT OR
CRIMINAL ACTS AS MENTIONED IN SECTION ONE HEREOF.
Now when we say combination, we actually mean to say, if there are two
or more means, we mean to say that number one and two or number one
and something else are included, how about a series of the same act? For
example, through misappropriation, conversion, misuse, will these be
included also?
....
REP. ISIDRO: When we say combination, it seems that ¾
THE CHAIRMAN (REP. GARCIA): Two.
REP. ISIDRO: Not only two but we seem to mean that two of the
enumerated means not twice of one enumeration.
THE CHAIRMAN (REP. GARCIA): No, no, not twice.
REP. ISIDRO: Not twice?
THE CHAIRMAN (REP. GARCIA): Yes, combination is not twice ¾
but combination, two acts.
REP. ISIDRO: So in other words, that’s it. When we say combination,
we mean, two different acts. It can not be a repetition of the same act.
THE CHAIRMAN (REP. GARCIA): That be referred to series. Yeah.
REP. ISIDRO: No, no. Supposing one act is repeated, so there are two.
THE CHAIRMAN (REP. GARCIA): A series.
REP. ISIDRO: That’s not [a] series. It’s a combination. Because when
we say combination or series, we seem to say that two or more, ‘di ba?
THE CHAIRMAN (REP. GARCIA): Yes, this distinguishes it, really,
from ordinary crimes. That is why, I said, that is a very good suggestion
because if it is only one act, it may fall under ordinary crime but we have
here a combination or series of overt or criminal acts. So. . .
....
REP. ISIDRO: When you say "combination", two different?
THE CHAIRMAN (REP. GARCIA): Yes.
THE CHAIRMAN (SEN. TAÑADA): Two different. . . .
REP. ISIDRO: Two different acts.
THE CHAIRMAN (REP. GARCIA): For example, ha. . .
REP. ISIDRO: Now a series, meaning, repetition. . .31
Thus, resort to the deliberations in Congress will readily reveal that the
word "combination" includes at least two different overt or criminal acts
listed in R.A. No. 7080, such as misappropriation (§1(d)(1)) and taking
undue advantage of official position (§1(d)(6)). On the other hand,
"series" is used when the offender commits the same overt or criminal
act more than once. There is no plunder if only one act is proven, even if
the ill-gotten wealth acquired thereby amounts to or exceeds the figure
fixed by the law for the offense (now P50,000,000.00). The overt or
criminal acts need not be joined or separated in space or time, since the
law does not make such a qualification. It is enough that the prosecution
proves that a public officer, by himself or in connivance with others,
amasses wealth amounting to at least P50 million by committing two or
more overt or criminal acts.
Petitioner also contends that the phrase "series of acts or transactions" is
the subject of conflicting decisions of various Circuit Courts of Appeals
in the United Sates. It turns out that the decisions concerned a phrase in
Rule 8(b) of the Federal Rules of Criminal Procedure which provides:
(b) Joinder of Defendants: Two or more defendants may be charged in
the same indictment or information if they are alleged to have
participated in the same act or transaction or in the same series of acts or
transactions constituting an offense or offenses. Such defendants may be
charged in one or more counts together or separately and all of the
defendants need not be charged on each count. (Emphasis added)
The fact that there is a conflict in the rulings of the various courts does
not mean that Rule 8(b) is void for being vague but only that the U.S.
Supreme Court should step in, for one of its essential functions is to
assure the uniform interpretation of federal laws.
We have a similar provision in Rule 3, §6 of the 1997 Code of Civil
Procedure. It reads:
SEC. 6. Permissive joinder of parties. ¾ All persons in whom or against
whom any right to relief in respect to or arising out of the same
transaction or series of transactions is alleged to exist, whether jointly,
severally, or in the alternative, may, except as otherwise provided in
these Rules, join as plaintiffs or be joined as defendants in one
complaint, where any question of law or fact common to all such
plaintiffs or to all such defendants may arise in the action; but the court
may make such orders as may be just to prevent any plaintiff or
defendant from being embarrassed or put to expense in connection with
any proceedings in which he may have no interest. (Emphasis added)
This provision has been in our Rules of Court since 1940 but it has never
been thought of as vague. It will not do, therefore, to cite the conflict of
opinions in the United States as evidence of the vagueness of the phrase
when we do not have any conflict in this country.
B. "Pattern of overt or criminal acts"
Petitioner contends that it is not enough that there be at least two acts to
constitute either a combination or series because §4 also mentions "a
pattern of overt or criminal acts indicative of the overall scheme or
conspiracy," and "pattern" means "an arrangement or order of things or
activity."
A "pattern of overt or criminal acts" is required in §4 to prove "an
unlawful scheme or conspiracy." In such a case, it is not necessary to
prove each and every criminal act done in furtherance of the scheme or
conspiracy so long as those proven show a pattern indicating the scheme
or conspiracy. In other words, when conspiracy is charged, there must be
more than a combination or series of two or more acts. There must be
several acts showing a pattern which is "indicative of the overall scheme
or conspiracy." As Senate President Salonga explained, if there are 150
constitutive crimes charged, it is not necessary to prove beyond
reasonable doubt all of them. If a pattern can be shown by proving, for
example, 10 criminal acts, then that would be sufficient to secure
conviction.32
The State is thereby enabled by this device to deal with several acts
constituting separate crimes as just one crime of plunder by allowing
their prosecution by means of a single information because there is a
common purpose for committing them, namely, that of "amassing,
accumulating or acquiring wealth through such overt or criminal acts."
The pattern is the organizing principle that defines what otherwise would
be discreet criminal acts into the single crime of plunder.
As thus applied to petitioner, the Anti-Plunder Law presents only
problems of statutory construction, not vagueness or overbreadth.
In Primicias v. Fugoso,33 an ordinance of the City of Manila, prohibiting
the holding of parades and assemblies in streets and public places unless
a permit was first secured from the city mayor and penalizing its
violation, was construed to mean that it gave the city mayor only the
power to specify the streets and public places which can be used for the
purpose but not the power to ban absolutely the use of such places. A
constitutional doubt was thus resolved through a limiting construction
given to the ordinance.
Nor is the alleged difference of opinion among the Ombudsman, the
Solicitor General, and the Sandiganbayan as to the number of acts or
crimes needed to constitute plunder proof of the vagueness of the statute
and, therefore, a ground for its invalidation. For sometime it was thought
that under Art. 134 of the Revised Penal Code convictions can be had for
the complex crime of rebellion with murder, arson, and other common
crimes. The question was finally resolved in 1956 when this Court held
that there is no such complex crime because the common crimes were
absorbed in rebellion.34 The point is that Art. 134 gave rise to a
difference of opinion that nearly split the legal profession at the time, but
no one thought Art. 134 to be vague and, therefore, void.
Where, therefore, the ambiguity is not latent and the legislative intention
is discoverable with the aid of the canons of construction, the void for
vagueness doctrine has no application.
In Connally v. General Constr. Co.35 the test of vagueness was
formulated as follows:
[A] statute which either forbids or requires the doing of an act in terms
so vague that men of common intelligence must necessarily guess at its
meaning and differ as to its application, violates the first essential of due
process of law.
Holmes’s test was that of the viewpoint of the bad man. In The Path of
the Law, Holmes said:
If you want to know the law and nothing else, you must look at it as a
bad man, who cares only for the material consequences which such
knowledge enables him to predict, not as a good one, who finds his
reasons for conduct, whether inside the law or outside of it, in the vaguer
sanctions of conscience.36
Whether from the point of view of a man of common intelligence or
from that of a bad man, there can be no mistaking the meaning of the
Anti-Plunder Law as applied to petitioner.
IV. PLUNDER A COMPLEX CRIME REQUIRING PROOF OF MENS
REA
Petitioner argues that, in enacting the statute in question, Congress
eliminated the element of mens rea, or the scienter, thus reducing the
burden of evidence required for proving the crimes which are mala in
se.37
There are two points raised in this contention. First is the question
whether the crime of plunder is a malum in se or a malum prohibitum.
For if it is a malum prohibitum, as the Ombudsman and the Solicitor
General say it is,38 then there is really a constitutional problem because
the predicate crimes are mainly mala in se.
A. Plunder A Malum In Se Requiring Proof of Mens Rea
Plunder is a malum in se, requiring proof of criminal intent. Precisely
because the constitutive crimes are mala in sethe element of mens
rea must be proven in a prosecution for plunder. It is noteworthy that the
amended information alleges that the crime of plunder was committed
"willfully, unlawfully and criminally." It thus alleges guilty knowledge
on the part of petitioner.
In support of his contention that the statute eliminates the requirement
of mens rea and that is the reason he claims the statute is void, petitioner
cites the following remarks of Senator Tañada made during the
deliberation on S. No. 733:
SENATOR TAÑADA. . . . And the evidence that will be required to
convict him would not be evidence for each and every individual
criminal act but only evidence sufficient to establish the conspiracy or
scheme to commit this crime of plunder.39
However, Senator Tañada was discussing §4 as shown by the succeeding
portion of the transcript quoted by petitioner:
SENATOR ROMULO: And, Mr. President, the Gentleman feels that it is
contained in Section 4, Rule of Evidence, which, in the Gentleman’s
view, would provide for a speedier and faster process of attending to this
kind of cases?
SENATOR TAÑADA. Yes, Mr. President . . .40
Señator Tañada was only saying that where the charge is conspiracy to
commit plunder, the prosecution need not prove each and every criminal
act done to further the scheme or conspiracy, it being enough if it proves
beyond reasonable doubt a pattern of overt or criminal acts indicative of
the overall unlawful scheme or conspiracy. As far as the acts constituting
the pattern are concerned, however, the elements of the crime must be
proved and the requisite mens rea must be shown.
Indeed, §2 provides that ¾
Any person who participated with the said public officer in the
commission of an offense contributing to the crime of plunder shall
likewise be punished for such offense. In the imposition of penalties, the
degree of participation and the attendance of mitigating and extenuating
circumstances, as provided by the Revised Penal Code, shall be
considered by the court.
The application of mitigating and extenuating circumstances in the
Revised Penal Code to prosecutions under the Anti-Plunder Law
indicates quite clearly that mens rea is an element of plunder since the
degree of responsibility of the offender is determined by his criminal
intent. It is true that §2 refers to "any person who participates with the
said public officers in the commission of an offense contributing to the
crime of plunder." There is no reason to believe, however, that it does
not apply as well to the public officer as principal in the crime. As
Justice Holmes said: "We agree to all the generalities about not
supplying criminal laws with what they omit, but there is no canon
against using common sense in construing laws as saying what they
obviously mean."41
Finally, any doubt as to whether the crime of plunder is a malum in
se must be deemed to have been resolved in the affirmative by the
decision of Congress in 1993 to include it among the heinous crimes
punishable by reclusion perpetua to death. Other heinous crimes are
punished with death as a straight penalty in R.A. No. 7659. Referring to
these groups of heinous crimes, this Court held in People v.
Echagaray:42
The evil of a crime may take various forms. There are crimes that are, by
their very nature, despicable, either because life was callously taken or
the victim is treated like an animal and utterly dehumanized as to
completely disrupt the normal course of his or her growth as a human
being. . . . Seen in this light, the capital crimes of kidnapping and serious
illegal detention for ransom resulting in the death of the victim or the
victim is raped, tortured, or subjected to dehumanizing acts; destructive
arson resulting in death; and drug offenses involving minors or resulting
in the death of the victim in the case of other crimes; as well as murder,
rape, parricide, infanticide, kidnapping and serious illegal detention,
where the victim is detained for more than three days or serious physical
injuries were inflicted on the victim or threats to kill him were made or
the victim is a minor, robbery with homicide, rape or intentional
mutilation, destructive arson, and carnapping where the owner, driver or
occupant of the carnapped vehicle is killed or raped, which are penalized
by reclusion perpetua to death, are clearly heinous by their very nature.
There are crimes, however, in which the abomination lies in the
significance and implications of the subject criminal acts in the scheme
of the larger socio-political and economic context in which the state finds
itself to be struggling to develop and provide for its poor and
underprivileged masses. Reeling from decades of corrupt tyrannical rule
that bankrupted the government and impoverished the population, the
Philippine Government must muster the political will to dismantle the
culture of corruption, dishonesty, greed and syndicated criminality that
so deeply entrenched itself in the structures of society and the psyche of
the populace. [With the government] terribly lacking the money to
provide even the most basic services to its people, any form of
misappropriation or misapplication of government funds translates to an
actual threat to the very existence of government, and in turn, the very
survival of the people it governs over. Viewed in this context, no less
heinous are the effects and repercussions of crimes like qualified bribery,
destructive arson resulting in death, and drug offenses involving
government officials, employees or officers, that their perpetrators must
not be allowed to cause further destruction and damage to society.
The legislative declaration in R.A. No. 7659 that plunder is a heinous
offense implies that it is a malum in se. For when the acts punished are
inherently immoral or inherently wrong, they are mala in se43 and it does
not matter that such acts are punished in a special law, especially since in
the case of plunder the predicate crimes are mainly mala in se. Indeed, it
would be absurd to treat prosecutions for plunder as though they are
mere prosecutions for violations of the Bouncing Check Law (B.P. Blg.
22) or of an ordinance against jaywalking, without regard to the inherent
wrongness of the acts.
B. The Penalty for Plunder
The second question is whether under the statute the prosecution is
relieved of the duty of proving beyond reasonable doubt the guilt of the
defendant. It is contended that, in enacting the Anti-Plunder Law,
Congress simply combined several existing crimes into a single one but
the penalty which it provided for the commission of the crime is grossly
disproportionate to the crimes combined while the quantum of proof
required to prove each predicate crime is greatly reduced.
We have already explained why, contrary to petitioner’s contention, the
quantum of proof required to prove the predicate crimes in plunder is the
same as that required were they separately prosecuted. We, therefore,
limit this discussion to petitioner’s claim that the penalty provided in the
Anti-Plunder Law is grossly disproportionate to the penalties imposed
for the predicate crimes. Petitioner cites the following examples:
For example, please consider the following ‘combination’ or ‘series’ of
overt or criminal acts (assuming the P50 M minimum has been acquired)
in light of the penalties laid down in the Penal Code:
a. One act of indirect bribery (penalized under Art. 211 of the Revised
Penal Code with prision correccional in its medium and maximum
periods),
– combined with –
one act of fraud against the public treasury (penalized under Art. 213 of
the Revised Penal Code with prision correccional in its medium period
to prision mayor in its minimum period,
- equals -
plunder (punished by reclusion perpetua to death plus forfeiture of
assets under R.A. 7080)
b. One act of prohibited transaction (penalized under Art. 215 of the
revised Penal Code with prision correccionalin its minimum period or a
fine ranging from P200 to P1,000 or both),
– combined with –
one act of establishing a commercial monopoly (penalized under Art.
186 of Revised Penal Code with prision correccional in its minimum
period or a fine ranging from P200 to P6,000, or both),
-equals-
plunder (punished by reclusion perpetua to death, and forfeiture of
assets under R.A. 7080.
c. One act of possession of prohibited interest by a public officer
(penalized with prision correccional in its minimum period or a fine of
P200 to P1,000, or both under Art. 216 of the Revised Penal Code),
 – combined with –
one act of combination or conspiracy in restraint of trade (penalized
under Art. 186 of the Revised penal Code with prision correccional in
its minimum period, or a fine of P200 to P1,000, or both,
- equals -
plunder, punished by reclusion perpetua to death, and forfeiture of
assets)44
But this is also the case whenever other special complex crimes are
created out of two or more existing crimes. For example, robbery with
violence against or intimidation of persons under Art. 294, par. 5 of the
Revised Penal Code is punished with prision correccional in its
maximum period (4 years, 2 months, and 1 day) to prision mayor in its
medium period (6 years and 1 day to 8 years). Homicide under Art. 249
of the same Code is punished with reclusion temporal (12 years and 1
day to 20 years). But when the two crimes are committed on the same
occasion, the law treats them as a special complex crime of robbery with
homicide and provides the penalty of reclusion perpetua to death for its
commission. Again, the penalty for simple rape under Art. 266-B of the
Revised Penal Code is reclusion perpetua, while that for homicide under
Art. 249 it is reclusion temporal (12 years and 1 day to 20 years). Yet,
when committed on the same occasion, the two are treated as one special
complex crime of rape with homicide and punished with a heavier
penalty of reclusion perpetua to death. Obviously, the legislature views
plunder as a crime as serious as robbery with homicide or rape with
homicide by punishing it with the same penalty. As the explanatory note
accompanying S. No. 733 explains:
Plunder, a term chosen from other equally apt terminologies
like kleptocracy and economic treason, punishes the use of high office
for personal enrichment, committed thru a series of acts done not in the
public eye but in stealth and secrecy over a period of time, that may
involve so many persons, here and abroad, and which touch so many
states and territorial units. The acts and/or omissions sought to be
penalized do not involve simple cases of malversation of public funds,
bribery, extortion, theft and graft but constitute the plunder of an entire
nation resulting in material damage to the national economy. The above-
described crime does not yet exist in Philippine statute books. Thus, the
need to come up with a legislation as a safeguard against the possible
recurrence of the depravities of the previous regime and as a deterrent to
those with similar inclination to succumb to the corrupting influences of
power.
Many other examples drawn from the Revised Penal Code and from
special laws may be cited to show that, when special complex crimes are
created out of existing crimes, the penalty for the new crime is heavier.
______________________
To recapitulate, had R.A. No. 7080 been a law regulating speech, I
would have no hesitation examining it on its face on the chance that
some of its provisions ¾ even though not here before us ¾ are void. For
then the risk that some state interest might be jeopardized, i.e., the
interest in the free flow of information or the prevention of "chill" on the
freedom of expression, would trump any marginal interest in security.
But the Anti-Plunder Law is not a regulation of speech. It is a criminal
statute designed to combat graft and corruption, especially those
committed by highly-placed public officials. As conduct and not speech
is its object, the Court cannot take chances by examining other
provisions not before it without risking vital interests of society.
Accordingly, such statute must be examined only "as applied" to the
defendant and, if found valid as to him, the statute as a whole should not
be declared unconstitutional for overbreadth or vagueness of its other
provisions. Doing so, I come to the following conclusions:
1. That the validity of R.A. No. 7080, otherwise known as the
Anti-Plunder Law, cannot be determined by applying the test of
strict scrutiny in free speech cases without disastrous
consequences to the State’s effort to prosecute crimes and that,
contrary to petitioner’s contention, the statute must be presumed
to be constitutional;
2. That in determining the constitutionality of the Anti-Plunder
Law, its provisions must be considered in light of the particular
acts alleged to have been committed by petitioner;
3. That, as applied to petitioner, the statute is neither vague nor
overbroad;
4. That, contrary to the contention of the Ombudsman and the
Solicitor General, the crime of plunder is a malum in se and not
a malum prohibitum and the burden of proving each and every
predicate crime is on the prosecution.
For these reasons, I respectfully submit that R.A. No. 7080 is valid and
that, therefore, the petition should be dismissed.
 in an important sense, as applied challenges are the basic building
blocks of constitutional adjudication and that determinations that
Footnotes statutes are facially invalid properly occur only as logical
1
See Estrada v. Desierto, G.R. No. 146710, March 2, 2001; outgrowths of rulings on whether statutes may be applied to
Estrada v. Macapagal-Arroyo, G.R. No. 146715, March 2, 2001. particular litigants on particular facts.
2 21
CONST., ART., Art. II, §27. Const., Art. VIII, §§1 and 5. Compare Angara v. Electoral
3
United States v. National Dairy Prod. Corp., 372 U.S. 29, 32- Commission, 63 Phil. 139, 158 (1936): "[T]he power of judicial
33, 9 L.Ed.2d 561, 565-6 (1963) (internal quotation marks review is limited to actual cases and controversies to be exercised
omitted). after full opportunity of argument by the parties, and limited
4
Memorandum for the Petitioner, pp. 4-7. further to the constitutional question raised or the very lis
5
Id. at 11-66. motapresented. Any attempt at abstraction could only lead to
6
293 SCRA 161, 166 (1998). dialectics and barren legal questions and to sterile conclusions
7
304 U.S. 144, 152, 82 L.Ed. 1234, 1241 (1938) (cases cited unrelated to actualities."
22
omitted). 401 U.S. 37, 52-53, 27 L.Ed.2d 669, 680 (1971). Accord,
8
Memorandum for the Petitioner, p. 5. United States v. Raines, 362 U.S. 17, 4 L.Ed.2d 524 (1960);
9
20 SCRA 849, 865 (1967). Board of Trustees, State Univ. of N.Y v. Fox, 492 U.S. 469, 106
10
Geoffrey R. Stone, Content-Neutral Restrictions, 54 Univ. of L.Ed.2d 388 (1989).
23
Chi. L. Rev. 46, 50-53 (1987). Broadrick v. Oklahoma, 413 U.S. at 613, 37 L.Ed.2d at 841;
11
Connally v. General Constr. Co., 269 U.S. 385, 391, 70 L.Ed. National Endowment for the Arts v. Finley, 524 U.S. 569, 580
328 (1926) cited in Ermita-Malate Hotel and Motel Operators (1998).
Ass’n v. City Mayor, 20 SCRA 849, 867 (1967). 24
FW/PBS, Inc. v. City of Dallas, 493 U.S. 223, 107 L.Ed.2d 603
12
NAACP v. Alabama, 377 U.S. 288, 307, 12 L.Ed.2d 325, 338 (1990); Cruz v. Secretary of Environment and Natural Resources,
(1958); Shelton v. Tucker, 364 U.S. 479, 5 L.Ed.2d 231 (1960). G.R. No. 135385, Dec. 6, 2000 (Mendoza, J., Separate Opinion).
13 25
Gooding v. Wilson, 405 U.S. 518, 521, 31 L.Ed.2d 408, 413 United States v. National Dairy Prod. Corp., 372 U.S. 29, 32-
(1972) (internal quotation marks omitted). 33, 9 L.Ed.2d 561, 565-6 (1963).
14 26
United States v. Salerno, 481 U.S. 739, 745, 95 L.Ed.2d 697, 269 U.S. 385, 391, 70 L.Ed. 328 (1926) cited in Ermita-Malate
707 (1987). See also People v. De la Piedra, G.R. No. 121777, Hotel and Motel Operators Ass’n v. City Mayor, 20 SCRA 849,
Jan. 24, 2001. 867 (1967).
15 27
413 U.S. 601, 612-613, 37 L.Ed. 2d 830, 840-841 (1973). Memorandum for the Petitioner, pp. 11-66.
16 28
United States v. Salerno, supra. 4 Record of the Senate 1310, June 5, 1989.
17 29
Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 4 Record of the Senate 1339, June 6, 1989.
455 U.S. 489, 494-95, 71 L.Ed.2d 362, 369 (1982). 30
Webster’s Third New International Dictionary 2073 (1993).
18 31
United States v. Raines, 362 U.S. 17, 21, 4 L.Ed.2d 524, 529 Deliberations of the Joint Conference Committee on Justice
(1960). The paradigmatic case is Yazoo & Mississippi Valley RR. held on May 7, 1991.
32
v. Jackson Vinegar Co., 226 U.S. 217, 57 L.Ed. 193 (1912). Deliberations of the Conference Committee on Constitutional
19
K. Sullivan & G. Gunther, Constitutional Law 1299 (14th ed., Amendments and Revision of Laws held on Nov. 15, 1988.
33
2001). 80 Phil. 71 (1948).
20 34
Id. at 1328. See also Richard H. Fallon, Jr., As Applied and People v. Hernandez, 99 Phil. 515 (1956); People v. Geronimo,
Facial Challenges, 113 Harv. L. Rev. 1321 (2000), arguing that, 100 Phil. 90 (1956).
 35
269 U.S. 385, 391, 70 L.Ed. 328 (1926) cited in Ermita-Malate
Hotel and Motel Operators Ass’n v. City Mayor, 20 SCRA 849,
867 (1967).
36
Oliver Wendell Holmes, Jr., The Path of the Law, 10 Harv. L.
Rev. 457, 459 (1897).
37
Memorandum for the Petitioner, p. 32.
38
See Memorandum for the Respondents, pp. 79-88.
39
4 Record of the Senate 1316, June 5, 1989.
40
Id.
41
Roschen v. Ward, 279 U.S. 337, 339, 73 L.Ed. 722, 728
(1929).
42
267 SCRA 682, 721-2 (1997) (emphasis added).
43
Black’s Law Dictionary 959 (1990); Lozano v. Martinez, 146
SCRA 324, 338 (1986).
44
Memorandum for the Petitioner, pp. 62-63 (emphasis in the
original).
The Lawphil Project - Arellano Law Foundation
SEPARATE OPINION
(Concurring)
PANGANIBAN, J.:
In his Petition for Certiorari under Rule 65 of the Rules of Court, former
President Joseph Ejercito Estrada seeks the annulment of the
Sandiganbayan Resolution dated July 9, 2001, which denied his Motion
to Quash. He further prays to prohibit the anti-graft court from
conducting the trial of petitioner in Criminal Case No. 26558, on the
ground that the statute under which he has been charged – the Anti-
Plunder Law or Republic Act (RA) 7080 -- is unconstitutional.
In sum, he submits three main arguments to support his thesis, as
follows:
1. "RA 7080 is vague and overbroad on its face and suffers from
structural deficiency and ambiguity."1
2. "RA 7080 reduces the standard of proof necessary for criminal
conviction, and dispenses with proof beyond reasonable doubt of
each and every criminal act done in furtherance of the crime of
plunder."2
3. "RA 7080 has been admitted by respondent to be malum
prohibita which deprives petitioner of a basic defense in violation
of due process."3
I have read former President Estrada’s Petition, Reply, Memorandum
and other pleadings and listened carefully to his Oral Argument.
However, I cannot agree with his thesis, for the following reasons:
(1) RA 7080 is not vague or overbroad. Quite the contrary, it is
clear and specific especially on what it seeks to prohibit and to
penalize.
(2) The Anti-Plunder Law does not lessen the degree of proof
necessary to convict its violator -- in this case, petitioner.
(3) Congress has the constitutional power to enact laws that
are mala prohibita and, in exercising such power, does not
violate due process of law.
First Issue: "Void for Vagueness" Not Applicable
In the main, petitioner attacks RA 7080 for being allegedly vague and
ambiguous, for "wanting in its essential terms," and for failing to "define
what degree of participation means as [it] relates to the person or persons
charged with having participated with a public officer in the commission
of plunder."4
In Dans v. People,5 reiterated recently in Sajul v. Sandiganbayan,6 this
Court debunked the "void for vagueness" challenge to the
constitutionality of Section 3(g) of the Anti-Graft Law (RA 3019, as
amended) and laid down the test to determine whether a statute is vague.
It has decreed that as long as a penal law can answer the basic query
"What is the violation?," it is constitutional. "Anything beyond this, the
‘hows’ and the ‘whys,’ are evidentiary matters which the law cannot
possibly disclose in view of the uniqueness of every case x x x."
Elements of Plunder
The Anti-Plunder Law more than adequately answers the question "What
is the violation?" Indeed, to answer this question, any law student --
using basic knowledge of criminal law -- will refer to the elements of the
crime, which in this case are plainly and certainly spelled out in a
straightforward manner in Sections 2 and 1(d) thereof. Those elements
are:
1. The offender is a public officer acting by himself or in
connivance with members of his family, relatives by affinity or
consanguinity, business associates, subordinates or other persons.
2. The offender amasses, accumulates or acquires ill-gotten
wealth.
3. The aggregate amount or total value of the ill-gotten wealth so
amassed, accumulated or acquired is at least fifty million
pesos (₱50,000,000).
4. Such ill-gotten wealth -- defined as any asset, property,
business enterprise or material possession of any of the aforesaid
persons (the persons within the purview of Section 2, RA 7080) -
- has been acquired directly or indirectly through dummies,
nominees, agents, subordinates and/or business associates by
any combination or series of the following means or similar
schemes:
(i) through misappropriation, conversion, misuse or
malversation of public funds or raids on the public
treasury;
(ii) by receiving, directly or indirectly, any commission,
gift, share, percentage, kickbacks or any other form of
pecuniary benefit from any person and/or entity in
connection with any government contract or project or by
reason of the office or position of the public officer
concerned;
(iii) by the illegal or fraudulent conveyance or disposition
of assets belonging to the national government or any of
its subdivisions, agencies or instrumentalities or
government-owned or controlled corporations and their
subsidiaries;
(iv) by obtaining, receiving or accepting directly or
indirectly any shares of stock, equity or any other form of
interest or participation including the promise of future
employment in any business enterprise or undertaking;
(v) by establishing agricultural, industrial or commercial
monopolies or other combination and/or implementation
of decrees and orders intended to benefit particular
persons or special interests; or
(vi) by taking undue advantage of official position,
authority, relationship, connection or influence to unjustly
enrich himself or themselves at the expense and to the
damage and prejudice of the Filipino people and the
Republic of the Philippines.7
Petitioner argues that, notwithstanding the above-detailed statement of
the elements of the crime, there is still vagueness because of the absence
of definitions of the terms combination, series and pattern in the text of
the law.
Citing People v. Nazario,8 petitioner adds that "a statute or act may be
said to be vague when it lacks comprehensible standards that men of
common intelligence must necessarily guess at its meaning and differ as
to its application."
I say, however, that in that very case cited by petitioner, the Court
cautioned that "the act (or law) must be utterly vague on its face." When
it can be "clarified either by a saving clause or by construction," the law
cannot be decreed as invalid. In other words, the absence of statutory
definitions of words used in a statute will not render the law "void for
vagueness," if the meanings of such words can be determined through
the judicial function of construction.9
Solution: Simple
Statutory Construction
Indeed, simple statutory construction, not a declaration of
unconstitutionality, is the key to the allegedly vague words of the Anti-
Plunder Law. And the most basic rule in statutory construction is to
ascertain the meaning of a term from the legislative proceedings. Verily,
in the judicial review of a law’s meaning, the legislative intent is
paramount.10
Pervading the deliberations of the Bicameral Conference Committee on
Justice held on May 7, 1991 was the common understanding
of combination as a joining or combining of at least two dissimilar things
or acts, and seriesas a repetition or recurrence of the same thing at least
twice.11 As a matter of fact, the same understanding of those terms also
prevailed during the Senate deliberations on Senate Bill No. 733
(Plunder) earlier held on June 6, 1989.12 The Records of those
deliberations speak for themselves.
It is true that during the deliberations in the Senate, the late Senator
Neptali A. Gonzales initially raised concerns over the alleged vagueness
in the use of the terms combination and series. I respectfully submit,
however, that the reliance13 of petitioner on such concerns is misplaced.
That portion of the interpellations, evincing the late senator’s
reservations on the matter, had taken place during the session of June 5,
1989.14 And the clarificatory remarks of Senate President Jovito R.
Salonga and Senators Wigberto Tañada, Alberto Romulo and Ernesto
Maceda, which threw light on the matters in doubt, happened the
following day, June 6, 1989.15 In brief, the misgivings voiced by Senator
Gonzales as to the use of the two terms were adequately addressed,
answered and disposed of the following day.
Thus, Senate Bill No. 733, defining and penalizing plunder, was passed
and approved on third reading on July 25, 1989, with 19 affirmative
votes (including those of Senators Gonzales, Tañada, Maceda, and
petitioner himself) sans any negative vote or abstention. Indeed, some of
the sharpest legal minds in the country voted to approve the bill, even
though it was bereft of statutory definitions. Likewise, it would certainly
be inconceivable for Senator Gonzales to have voted for the approval of
the Bill had he believed that it was vague to the point of constitutional
infirmity; or at the very least, if he believed that his earlier reservations
or apprehensions were not fully satisfied.
At this juncture, may I call attention to the Record of the Joint
Conference Meeting held on May 7, 1991.16 The portion thereof relied
upon by petitioner17 features the exchanges involving Representatives
Garcia and Isidro and Senator Tañada on the meanings of the
terms combination and series. The quoted part of the Record would
suggest that, somehow, particularly towards the end of the meeting, the
discussion among the legislators seemed to have degenerated into a
clutch of unfinished sentences and unintelligible phrases. Still, I believe
that the deliberations did not actually sound the way they were
subsequently transcribed or as they now appear on the Record. Even
more reluctant am I to agree with petitioner that the apparent tenor of the
deliberations evinced "a dearth of focus to render precise the definition
of the terms," or that the Committee members themselves were not clear
on the meanings of the terms in question.
Most of us in the legal profession are all too familiar with the vagaries of
stenographic note-taking, especially in courtrooms and legislative halls.
Too often, lawyers, parties-litigants and even judges find themselves at
the mercy of stenographers who are unfamiliar with certain legal terms;
or who cannot hear well enough or take notes fast enough; or who
simply get confused, particularly when two or more persons happen to be
speaking at the same time. Often, transcripts of stenographic notes have
portrayed lawyers, witnesses, legislators and judges as blithering idiots,
spouting utterly nonsensical jargon and plain inanities in the course of a
proceeding. The Record in question is no exception.
Rather than believe that the distinguished lawmakers went about their
business uttering senseless half-sentences to one another, I think that
these learned and intelligent legislators of both chambers knew what they
were talking about, spoke their minds, and understood each other well,
for the Record itself does not indicate the contrary. Neither does it show
any details or minutiae that would indicate that they abandoned their
earlier common understanding of the terms combination and series.
Specific Number or
Percentage Not Always Necessary
Regrettably, I shall also have to take issue with petitioner’s disquisition
to the effect that "when penal laws enacted by Congress make reference
to a term or concept requiring a quantitative definition, these laws are so
crafted as to specifically state the exact number or percentage necessary
to constitute the elements of a crime," followed by a recitation of
the minimum number of malefactors mentioned in the statutory
definitions of band, conspiracy, illegalrecruitment by syndicate, large-
scale illegal recruitment, organized/syndicated crime
group, and swindling by a syndicate. Thus, he insinuates that, because
RA 7080 has failed to specify precisely the minimum number of
malefactors needed for an offense to be properly classified as plunder,
the law is vague or has somehow failed to meet the standard for penal
laws.
The aforequoted discourse would appear to be incongruous, if not totally
misleading. As pointed out during the Oral Argument on September 18,
2001, the crime of plunder can be committed by a public officer acting
alone. Section 2 of RA 7080 reads as follows: "Definition of the Crime
of Plunder; Penalties. – Any public officer who, by himself or in
connivance with x x x." Thus, the insistence on a mathematical
specification or precise quantification is essentially without basis. And
lest anyone believe that the Anti-Plunder Law is unusual in this respect,
let me just recall that the RICO law, to which petitioner made repeated
references in his Amended Petition, can likewise be violated by a single
individual.18
Not Oppressive
or Arbitrary
Neither can it be said that RA 7080 is oppressive or arbitrary for
imposing a more severe penalty on a combinationor series of the
offenses enumerated in Section 1(d) of the law, than would otherwise be
imposed if the said offenses were taken separately. As Mr. Justice
Mendoza lucidly pointed out in his interpellation during the Oral
Argument, the Anti-Plunder Law is merely employing a
familiar technique or feature of penal statutes, when it puts together what
would otherwise be various combinations of traditional offenses already
proscribed by existing laws and attaching thereto higher or more severe
penalties than those prescribed for the same offenses taken separately.
Here, Mr. Justice Mendoza is referring to special complex crimes like
rape with homicide or robbery with homicide. During the Oral
Argument, he asked whether petitioner’s counsel was in fact suggesting
that such special complex crimes -- a very important part of the Revised
Penal Code and well-entrenched in our penal system -- were violative of
due process and the constitutional guarantees against cruel and unusual
punishment and should also be struck down. It goes without saying that
the legislature is well within its powers to provide higher penalties in
view of the grave evils sought to be prevented by RA 7080.
Innocent Acts Not
Penalized by RA 7080
Petitioner insists that innocent acts are in effect criminalized by RA
7080, because it allegedly penalizes combinations or series of acts
coming within the purview of the means or similar schemes enumerated
under items 4 and 5 of Section 1(d) of the law, which reads as follows:
"4. By obtaining, receiving or accepting directly or indirectly any shares
of stock, equity or any other forms of interest or participation including
the promise of future employment in any business enterprise or
undertaking;
"5. By establishing agricultural, industrial or commercial monopolies or
other combinations and/or implementation of decrees and orders
intended to benefit particular persons or special interests"
That such contention "deserves scant attention" is an understatement of
the extreme sort. The claim of "innocent acts" is possible only because
items 4 and 5 have been taken completely out of context and read in
isolation instead of in relation to the other provisions of the same law,
particularly Section 2. The above-enumerated acts, means or similar
schemes must be understood as having reference to or connection with
the acquisition of ill-gotten wealth by a public officer, by himself or in
connivance with others. Those acts are therefore not innocent acts.
Neither are those prohibitions new or unfamiliar. The proscribed acts
under item 4, for instance, may to some extent be traced back to some of
the prohibitions in RA 3019 (the Anti-Graft Law). Section 3, the
pertinent part of such law, reads as follows:
"SEC. 3. Corrupt practices of public officers. - In addition to acts or
omissions of public officers already penalized by existing law, the
following shall constitute corrupt practices of any public officer and are
hereby declared to be unlawful:
"(a) x x x x x x x x x
"(b) Directly or indirectly requesting or receiving any gift, present, share,
percentage, or benefit, for himself or for any other person, in connection
with any contract or transaction between the Government and any other
party wherein the public officer in his official capacity has to intervene
under the law.
"(c) Directly or indirectly requesting or receiving any gift, present or
other pecuniary or material benefit, for himself or for another, from any
person for whom the public officer, in any manner or capacity, has
secured or obtained, or will secure or obtain, any Government permit or
license, in consideration for the help given or to be given, without
prejudice to Section Thirteen of this Act.
"(d) Accepting or having any member of his family accept employment
in a private enterprise which has pending official business with him
during the pendency thereof or within one year after its termination.
xxx xxx xxx
"(h) Directly or indirectly having financial or pecuniary interest in any
business, contract or transaction in connection with which he intervenes
or takes part in his official capacity, or in which he is prohibited by the
Constitution or by any law from having any interest.
x x x x x x x x x."
On the other hand, the prohibited acts under item 5 have antecedents in
the Revised Penal Code’s interdiction against monopolies and
combinations in restraint of trade. Clearly, the acts dealt with in Items 4
and 5 of Section 1(d) are in no wise the innocent or innocuous deeds that
petitioner would have us mistake them for.
RA 7080 Not Suffering from Overbreadth
In connection with the foregoing discussion, petitioner also charges that
RA 7080 suffers from "overbreadth." I believe petitioner misconstrues
the concept. In the very recent case People v. Dela Piedra,19 this Court
held:
"A statute may be said to be overbroad where it operates to inhibit the
exercise of individual freedoms affirmatively guaranteed by the
Constitution, such as the freedom of speech or religion. A generally
worded statute, when construed to punish conduct which cannot be
constitutionally punished, is unconstitutionally vague to the extent that it
fails to give adequate warning of the boundary between the
constitutionally permissible and the constitutionally impermissible
applications of the statute.
"In Blo Umpar Adiong vs. Commission on Elections, for instance, we
struck down as void for overbreadth provisions prohibiting the posting of
election propaganda in any place – including private vehicles – other
than in the common poster areas sanctioned by the COMELEC. We held
that the challenged provisions not only deprived the owner of the vehicle
the use of his property but also deprived the citizen of his right to free
speech and information. The prohibition in Adiong, therefore, was so
broad that it covered even constitutionally guaranteed rights and, hence,
void for overbreadth. In the present case, however, appellant did not
even specify what constitutionally protected freedoms are embraced by
the definition of ‘recruitment and placement’ that would render the same
constitutionally overbroad." (Italics supplied)
Similarly, in the instant case, petitioner has not identified which of his
constitutionally protected freedoms, if any, are allegedly being violated
by the Anti-Plunder Law. As Mr. Justice Mendoza pointed out to
petitioner’s counsel during the Oral Argument, specious and even
frivolous is the contention that RA 7080 infringes on the constitutional
right of petitioner by depriving him of his liberty pending trial and by
paving the way for his possible conviction because, following that line of
argument, the entire Revised Penal Code would be reckoned to be an
infringement of constitutional rights.
"Pattern of Overt or Criminal Acts"
Petitioner, in line with his "void for vagueness" attack on RA 7080,
faults the statute for failing to provide a definition of the phrase a pattern
of overt or criminal acts indicative of the overall unlawful scheme or
conspiracy used in Section 4 of the law. This definition is crucial since,
according to him, such pattern is an essential element of the crime of
plunder.
A plain reading of the law easily debunks this contention. First, contrary
to petitioner’s suggestions, such pattern of overt or criminal acts and so
on is not and should not be deemed an essential or substantive element of
the crime of plunder. It is possible to give full force and effect to RA
7080 without applying Section 4 -- an accused can be charged and
convicted under the Anti-Plunder Law without resorting to that specific
provision. After all, the heading and the text of Section 4, which I quote
below, leave no room for doubt that it is not substantive in nature:
"SEC. 4. Rule of Evidence. - For purposes of establishing the crime of
plunder, it shall not be necessary to prove each and every criminal act
done by the accused in furtherance of the scheme or conspiracy to amass,
accumulate or acquire ill-gotten wealth, it being sufficient to establish
beyond reasonable doubt a pattern of overt or criminal acts indicative of
the overall unlawful scheme or conspiracy." (Boldface supplied)
As Mr. Chief Justice Davide very astutely pointed out during the Oral
Argument, Section 2 in relation to Section 1(d) deals with how the crime
of plunder is committed. Hence, these two sections constitute the
substantive elements, whereas Section 4 deals with how the crime
is proved and is therefore not substantive, but merely procedural. It may
be disregarded or discarded if found defective or deficient, without
impairing the rest of the statute.
Actually, the root of this problem may be traced to an observation made
by Rep. Pablo Garcia, chair of the House Committee on Justice, that RA
7080 had been patterned after the RICO Law.20 Petitioner apparently
seized on this statement and on the assertions in H.J. Inc. v.
Northwestern Bell21 and other cases that a pattern of racketeering is a
"key requirement" in the RICO Law and a "necessary element" of
violations thereof. He then used these as the springboard for his
vagueness attacks on RA 7080. However, his reliance on the RICO law
is essentially misplaced. Respondent Sandiganbayan correctly held that
the said legislation was essentially different from our Anti-Plunder Law,
as it pointed out in its Resolution of July 9, 2001, which I quote:
"Accused Joseph E. Estrada claims that the Anti-Plunder Law does not
define ‘pattern of overt or criminal acts’ indicative of the overall scheme
or conspiracy, thereby giving prosecutors and judges unlimited
discretion to determine the nature and extent of evidence that would
show ‘pattern.’" (Motion to Quash dated June 7, 2001, p. 13) The Court
disagrees with this contention.
"x x x. According to the sponsors of the Anti-Plunder Law in Congress,
the said law is similar to the U.S. RICO (Deliberations of the House of
Representatives Committee on Revision of Law and Justice, May 24,
1990). However, the similarities extend only insofar as both laws
penalize with severe penalties the commission by a single accused or
multiple accused of a pattern of overt or criminal acts as one continuing
crime. However, the legislative policies and objectives as well as
the nature of the crimes penalized respectively by the RICO and the
Anti-Plunder Law are different." (Boldface and underscoring supplied)
Indeed, a careful reading of RICO vis-à-vis RA 7080 can lead to no other
conclusion than that the crimes being penalized are completely different
in nature and character, and that the legislative objectives and policies
involved are quite dissimilar.
In the case of RICO, legislative concern focused on the threat of
continued racketeering activity, and that was why pattern was imbued
with such importance. "Congress was concerned in RICO with long-term
criminal conduct,"22 as the following quote indicates:
"RICO’s legislative history reveals Congress’ intent that to prove a
pattern of racketeering activity a plaintiff or prosecutor must show that
the racketeering predicates are related, and that they amount to or pose a
threat of continued criminal activity.23
xxx xxx xxx
"What a plaintiff or prosecutor must prove is continuity of racketeering
activity, or its threat, simpliciter. This may be done in a variety of ways,
thus making it difficult to formulate in the abstract any general test for
continuity. We can, however, begin to delineate the requirement.
"‘Continuity’ is both a closed and open-ended concept, referring either to
a closed period of repeated conduct, or to past conduct that by its
nature projects into the future with a threat of repetition. x x x. It is, in
either case, centrally a temporal concept – and particularly so in the
RICO context, where what must be continuous, RICO’s predicate acts or
offenses, and the relationship these predicates must bear one to another,
are distinct requirements. A party alleging a RICO violation may
demonstrate continuity over a closed period by proving a series of related
predicates extending over a substantial period of time. Predicate acts
extending over a few weeks or months and threatening no future criminal
conduct do not satisfy this requirement. Congress was concerned in
RICO with long-term criminal conduct. Often a RICO action will be
brought before continuity can be established in this way. In such cases,
liability depends on whether the threat of continuity is
demonstrated."24 (italics and underscoring supplied)
However, in RA 7080, precisely because of the sheer magnitude of the
crimes in question and their extremely deleterious effects on society, the
legislative sentiment of great urgency – the necessity of immediate
deterrence of such crimes -- was incompatible with the RICO concept of
"pattern" as connoting either continuity over a substantial period of time
or threat of continuity or repetition. The legislative intent25 and policy of
RA 7080 centered on imposing a heavy penalty in order to achieve a
strong, if not permanent, deterrent effect -- the sooner the better. The
following Senate deliberations are instructive:
"Senator Paterno. Mr. President, [I’m] not too clear yet on the reason for
trying to define a crime of plunder. Could I get some further
clarification?
"Senator Tañada. Yes, Mr. President.
"Because of our experience in the former regime, we feel that there is a
need for Congress to pass the legislation which would cover a crime of
this magnitude. While it is true, we already have the Anti-Graft Law. But
that does not directly deal with plunder. That covers only the corrupt
practices of public officials as well as their spouses and relatives within
the civil degree, and the Anti-Graft law as presently worded would not
adequately or sufficiently address the problems that we experienced
during the past regime.
"Senator Paterno. May I try to give the Gentleman, Mr. President, my
understanding of the bill?
"Senator Tañada. Yes.
"Senator Paterno. I envision that this bill or this kind of plunder would
cover a discovered interconnection of certain acts, particularly, violations
of Anti-Graft and Corrupt Practices Act when, after the different acts are
looked at, a scheme or conspiracy can be detected, such scheme or
conspiracy consummated by the different criminal acts or violations of
Anti-Graft and Corrupt Practices Act, such that the scheme or conspiracy
becomes a sin, as a large scheme to defraud the public or rob the public
treasury. It is parang robo and banda. It is considered as that. And, the
bill seeks to define or says that P100 million is that level at which ay
talagang sobra na, dapat nang parusahan ng husto. Would it be a correct
interpretation or assessment of the intent of the bill?
"Senator Tañada. Yes, Mr. President. X x x x x.
"Senator Paterno. Would the Author not agree that this crime of plunder
should be considered a heinous crime, Mr. President?
"Senator Tañada. Yes, Mr. President. That is why, the penalty imposed
under this bill is life imprisonment, and permanent disqualification from
holding public office.
"Senator Paterno. I would really ask, Mr. President, whether the Author
would not consider that this is a heinous crime which, for compelling
reasons, namely to try and dampen the graft and corruption, Congress
should provide the death penalty for the crime of plunder.
"Senator Tañada. I personally would have some problem with that, Mr.
President, because I am against the restoration of death penalty in our
criminal code. I would submit that to this Body.
"Senator Paterno. I respect the ministerial attitude and the respect for
human life of the author, Mr. President, but I just feel that graft and
corruption is such a large problem in our society that, perhaps, it is
necessary for this Congress to express itself that this crime of plunder is
a heinous crime which should be levied the death penalty, Mr.
President."26
Thus, it is clear and unarguable that "pattern," a key requirement or
necessary element of RICO, is in no wise an essential element of RA
7080.
This conclusion is further bolstered by the fact that pattern, in the RICO
law context, is nowhere to be found in the language of RA 7080 or in the
deliberations of Congress. Indeed, the legislators were well aware of the
RICO Act; hence, they could have opted to adopt its concepts, terms and
definitions and installed pattern in the RICO sense as an essential
element of the crime of plunder, if that were their intent. At the very
least, they would not have relegated the term pattern to a procedural
provision such as Section 4.
Second, to answer petitioner’s contention directly, the Anti-Plunder Law
does in fact provide sufficient basis to get at the meaning of the
term pattern as used in Section 4. This meaning is brought out in the
disquisition of Respondent Sandiganbayan in its challenged Resolution,
reproduced hereunder:
"The term ‘pattern’ x x x is sufficiently defined in the Anti-Plunder Law,
specifically through Section 4 x x x, read in relation to Section 1(d) and
Section 2 of the same law. Firstly, under Section 1(d) x x x, a pattern
consists of at least a combination or a series of overt or criminal acts
enumerated in subsections (1) to (6) of Section 1(d). Secondly, pursuant
to Section 2 of the law, the ‘pattern’ of overt or criminal acts is directed
towards a common purpose or goal which is to enable a public officer to
amass, accumulate or acquire ill-gotten wealth; and [t]hirdly, there must
either be an ‘overall unlawful scheme’ or ‘conspiracy’ to achieve said
common goal. As commonly understood, the term ‘overall unlawful
scheme’ indicates ‘a general plan of action or method’ which the
principal accused and public officer and others conniving with him
follow to achieve the aforesaid common goal. In the alternative, if there
is no such overall scheme or where the schemes or methods used by
multiple accused vary, the overt or criminal acts must form part of a
conspiracy to attain said common goal.
"Parenthetically, it can be said that the existence of a pattern indicating
an overall scheme or a single conspiracy would serve as the link that will
tie the overt or criminal acts into one continuing crime of plunder. A
conspiracy exists when two or more persons come into an agreement
concerning the commission of a felony and decide to commit it. (Art. 8,
Revised Penal Code). To use an analogy made by U.S. courts in
connection with RICO violations, a pattern may be likened to a wheel
with spokes (the overt or criminal acts which may be committed by a
single or multiple accused), meeting at a common center (the acquisition
or accumulation of ill-gotten wealth by a public officer) and with the rim
(the over-all unlawful scheme or conspiracy) of the wheel enclosing the
spokes. In this case, the information charges only one count of [the]
crime of plunder, considering the prosecution’s allegation in the
amended information that the series or combination of overt or criminal
acts charged form part of a conspiracy among all the accused."27
Judiciary Empowered to Construe and Apply the Law
At all events, let me stress that the power to construe law is essentially
judicial. To declare what the law shall be is a legislative power, but to
declare what the law is or has been is judicial.28 Statutes enacted by
Congress cannot be expected to spell out with mathematical precision
how the law should be interpreted under any and all given situations. The
application of the law will depend on the facts and circumstances as
adduced by evidence which will then be considered, weighed and
evaluated by the courts. Indeed, it is the constitutionally mandated
function of the courts to interpret, construe and apply the law as would
give flesh and blood to the true meaning of legislative enactments.
Moreover, a statute should be construed in the light of the objective to be
achieved and the evil or mischief to be suppressed and should be given
such construction as will advance the purpose, suppress the mischief or
evil, and secure the benefits intended.29 A law is not a mere composition,
but an end to be achieved; and its general purpose is a more important
aid to its meaning than any rule that grammar may lay down.30 A
construction should be rejected if it gives to the language used in a
statute a meaning that does not accomplish the purpose for which the
statute was enacted and that tends to defeat the ends that are sought to be
attained by its enactment.31
As can be gleaned from the legislative deliberations, the Plunder Law
was enacted to curb the "despoliation of the National Treasury by some
public officials who have held the levers of power" and to penalize "this
predatory act which has reached unprecedented heights and has been
developed by its practitioners to a high level of sophistication during the
past dictatorial regime." Viewed broadly, "plunder involves not just plain
thievery but economic depredation which affects not just private parties
or personal interests but the nation as a whole." Invariably, plunder
partakes of the nature of "a crime against national interest which must
be stopped, and if possible, stopped permanently."32
No Patent and Clear Conflict with Constitution
Against the foregoing backdrop, I believe petitioner’s heavy reliance on
the void-for-vagueness concept cannot prevail, considering that such
concept, while mentioned in passing in Nazario and other cases, has yet
to find direct application in our jurisdiction. To this date, the Court has
not declared any penal law unconstitutional on the ground of
ambiguity.33 On the other hand, the constitutionality of certain penal
statutes has been upheld in several cases, notwithstanding allegations of
ambiguity in the provisions of law. In Caram Resources Corp. v.
Contreras34 and People v. Morato,35 the Court upheld the validity of BP
22 (Bouncing Checks Law) and PD 1866 (Illegal Possession of
Firearms), respectively, despite constitutional challenges grounded on
alleged ambiguity.
Similarly, the cases cited by petitioner involving U.S. federal court
decisions relative to the RICO Law did not at all arrive at a finding of
unconstitutionality of the questioned statute. To repeat, reference to these
U.S. cases is utterly misplaced, considering the substantial differences in
the nature, policies and objectives between the RICO Law and the Anti-
Plunder Law. Verily, "the RICO Law does not create a new type of
substantive crime since any acts which are punishable under the RICO
Law also are punishable under existing federal and state
statutes."36 Moreover, the main purpose of the RICO Law is "to seek the
eradication of organized crime in the United States."37
On the other hand, the Plunder Law creates an entirely new crime that
may consist of both (a) criminal acts already punished by the Revised
Penal Code or special laws and (b) acts that may not be punishable by
previously existing laws. Furthermore, unlike in the RICO Law, the
motivation behind the enactment of the Anti-Plunder Law is "the need to
for a penal law that can adequately cope with the nature and magnitude
of the corruption of the previous regime"38 in accordance with the
constitutional duty of the State "to take positive and effective measures
against graft and corruption."39
In sum, the law must be proven to be clearly and unequivocally
repugnant to the Constitution before this Court may declare its
unconstitutionality. To strike down the law, there must be a clear
showing that what the fundamental law prohibits, the statute allows to be
done.40 To justify the nullification of the law, there must be a clear,
unequivocal breach of the Constitution; not a doubtful, argumentative
implication.41 Of some terms in the law which are easily clarified by
judicial construction, petitioner has, at best, managed merely to point out
alleged ambiguities. Far from establishing, by clear and unmistakable
terms, any patent and glaring conflict with the Constitution, the
constitutional challenge to the Anti-Plunder law must fail. For just as the
accused is entitled to the presumption of innocence in the absence of
proof beyond reasonable doubt, so must a law be accorded the
presumption of constitutionality without the same requisite quantum of
proof.
Second Issue:
Quantum of Evidence Not Lowered by RA 7080
I will now tackle petitioner’s impassioned asseverations that the Anti-
Plunder Law violates the due process clause and the constitutional
presumption of innocence.
Section 4 of RA 7080 provides that, for purposes of establishing the
crime of plunder, it shall not be necessary to prove each and every
criminal act done by the accused in furtherance of the scheme or
conspiracy to amass, accumulate or acquire ill-gotten wealth. This is
because it would be sufficient to establish beyond reasonable doubt a
pattern of overt or criminal acts indicative of the overall unlawful
scheme or conspiracy.
Hence, petitioner now concludes that the Anti-Plunder Law "eliminates
proof of each and every component criminal act of plunder by the
accused and limits itself to establishing just the pattern of overt or
criminal acts indicative of unlawful scheme or conspiracy." He thus
claims that the statute penalizes the accused on the basis of a proven
scheme or conspiracy to commit plunder, without the necessity of
establishing beyond reasonable doubt each and every criminal act done
by the accused. From these premises, he precipitately, albeit
inaccurately, concludes that RA 7080 has ipso facto lowered the
quantum of evidence required to secure a conviction under the
challenged law. This is clearly erroneous.
First, petitioner’s allegation as to the meaning and implications of
Section 4 can hardly be taken seriously, because it runs counter to certain
basic common sense presumptions that apply to the process of
interpreting statutes: that in the absence of evidence to the contrary, it
will be presumed that the legislature intended to enact a valid, sensible
and just law; that the law-making body intended right and justice to
prevail;42 and that the legislature aimed to impart to its enactments such
meaning as would render them operative and effective and prevent
persons from eluding or defeating them.
Second, petitioner’s allegation is contradicted by the legislative Records
that manifest the real intent behind Section 4, as well as the true meaning
and purpose of the provision therein. This intent is carefully expressed
by the words of Senate President Salonga:
"Senate Pres. Salonga. Is that, if there are let’s say 150 crimes all in all,
criminal acts, whether bribery, misappropriation, malversation,
extortion, you need not prove all of those beyond reasonable doubt. If
you can prove by pattern, let’s say 10, but each must be proved beyond
reasonable doubt, you do not have to prove 150 crimes. That’s the
meaning of this."43 (italics supplied)
All told, the above explanation is in consonance with what is often
perceived to be the reality with respect to the crime of plunder -- that
"the actual extent of the crime may not, in its breadth and entirety, be
discovered, by reason of the ‘stealth and secrecy’ in which it is
committed and the involvement of ‘so many persons here and abroad and
[the fact that it] touches so many states and territorial units.’"44 Hence,
establishing a pattern indicative of the overall unlawful scheme becomes
relevant and important.
Proof of Pattern Beyond Reasonable Doubt
Nevertheless, it should be emphasized that the indicative pattern must be
proven beyond reasonable doubt. To my mind, this means that the
prosecution’s burden of proving the crime of plunder is, in actuality,
much greater than in an ordinary criminal case. The prosecution, in
establishing a pattern of overt or criminal acts, must necessarily show a
combination or series of acts within the purview of Section 1(d) of the
law.
These acts which constitute the combination or series must still be
proven beyond reasonable doubt. On top of that, the prosecution must
establish beyond reasonable doubt such pattern of overt or criminal acts
indicative of the overall scheme or conspiracy, as well as all the other
elements thereof.
Thus, Respondent Sandiganbayan was correct in its ratiocination on that
point:
"The accused misread the import and meaning of the above-quoted
provision (Sec. 4). The latter did not lower the quantum of evidence
necessary to prove all the elements of plunder, which still remains proof
beyond reasonable doubt. For a clearer understanding of the import of
Section 4 of the Anti-Plunder Law, quoted hereunder are pertinent
portions of the legislative deliberations on the subject:
‘MR. ALBANO. Now, Mr. Speaker, it is also elementary in our criminal
law that what is alleged in the information must be proven beyond
reasonable doubt. If we will prove only one act and find him guilty of the
other acts enumerated in the information, does that not work against the
right of the accused especially so if the amount committed, say, by
falsification is less than P100 million, but the totality of the crime
committed is P100 million since there is malversation, bribery,
falsification of public document, coercion, theft?
‘MR. GARCIA (P). Mr. Speaker, not everything alleged in the
information needs to be proved beyond reasonable doubt. What is
required to be proved beyond reasonable doubt is every element of the
crime charged. For example, Mr. Speaker, there is an enumeration of the
things taken by the robber in the information – three pairs of pants,
pieces of jewelry. These need not be proved beyond reasonable doubt,
but these will not prevent the conviction of a crime for which he was
charged just because, say, instead of 3 pairs of diamond earrings the
prosecution proved only two. Now, what is required to be proved beyond
reasonable doubt is the element of the offense.
‘MR. ALBANO. I am aware of that, Mr. Speaker, but considering that in
the crime of plunder the totality of the amount is very important, I feel
that such a series of overt (or) criminal acts has to be taken singly. For
instance, in the act of bribery, he was able to accumulate only ₱50,000
and in the crime of extortion, he was only able to accumulate P1 million.
Now, when we add the totality of the other acts as required under this
bill through the interpretation on the rule of evidence, it is just one single
act, so how can we now convict him?
‘MR. GARCIA (P). With due respect, Mr. Speaker, for purposes of
proving an essential element of the crime, there is a need to prove that
element beyond reasonable doubt. For example, one essential element of
the crime is that the amount involved is P100 million. Now, in a series of
defalcations and other acts of corruption and in the enumeration the total
amount would be P110 or P120 million, but there are certain acts that
could not be proved, so, we will sum up the amounts involved in these
transactions which were proved. Now, if the amount involved in these
transactions, proved beyond reasonable doubt, is P100 million, then there
is a crime of plunder.’ (Deliberations of House of Representatives on RA
7080, dated October 9, 1990).’
xxx xxx xxx
"According to the Explanatory Note of Senate Bill No. 733, the crime of
plunder, which is a ‘term chosen from other equally apt terminologies
like kleptocracy and economic treason, punishes the use of high office
for personal enrichment, committed through a series [or combination] of
acts done not in the public eye but in stealth or secrecy over a period of
time, that may involve so many persons, here and abroad, and which
touch so many states and territorial units.’ For this reason, it would be
unreasonable to require the prosecution to prove all the overt and
criminal acts committed by the accused as part of an ‘over-all unlawful
scheme or conspiracy’ to amass ill-gotten wealth as long as all the
elements of the crime of plunder have been proven beyond reasonable
doubt, such as, the combination or series of overt or criminal acts
committed by a public officer alone or in connivance with other persons
to accumulate ill-gotten wealth in the amount of at least Fifty Million
Pesos.
"The statutory language does not evince an intent to do away with the
constitutional presumption of guilt nor to lower the quantum of proof
needed to establish each and every element or ingredient of the crime of
plunder."45
In connection with the foregoing, I emphasize that there is no basis for
petitioner’s concern that the conspiracy to defraud, which is not
punishable under the Revised Penal Code, may have been criminalized
under RA 7080. The Anti-Plunder Law treats conspiracy as merely a
mode of incurring criminal liability, but does not criminalize or penalize
it per se.
In sum, it is clear that petitioner has misunderstood the import of Section
4. Apropos the foregoing, I maintain that, between an interpretation that
produces questionable or absurd results and one that gives life to the law,
the choice for this Court is too obvious to require much elucidation or
debate.
Even granting arguendo that Section 4 of the Anti-Plunder law suffers
from some constitutional infirmity, the statute may nonetheless survive
the challenge of constitutionality in its entirety. Considering that this
provision pertains only to a rule on evidence or to a procedural matter
that does not bear upon or form any part of the elements of the crime of
plunder, the Court may declare the same unconstitutional and strike it off
the statute without necessarily affecting the essence of the legislative
enactment. For even without the assailed provision, the law can still
stand as a valid penal statute inasmuch as the elements of the crime, as
well as the penalties therein, may still be clearly identified or sufficiently
derived from the remaining valid portions of the law. This finds greater
significance when one considers that Section 7 of the law provides for a
separability clause declaring the validity, the independence and the
applicability of the other remaining provisions, should any other
provision of the law be held invalid or unconstitutional.
Third Issue:
The Constitutional Power of Congress to Enact Mala Prohibita Laws
Petitioner maintains that RA 7080 "eliminated the element of mens
rea from crimes which are mala in se and converted these crimes which
are components of plunder into mala prohibita, thereby rendering it
easier to prove" since, allegedly, "the prosecution need not prove
criminal intent."
This asseveration is anchored upon the postulate (a very erroneous one,
as already discussed above) that the Anti-Plunder Law exempts the
prosecution from proving beyond reasonable doubt the component
acts constituting plunder, including the element of criminal intent. It thus
concludes that RA 7080 violates the due process and the equal protection
clauses of the Constitution.
While I simply cannot agree that the Anti-Plunder Law eliminated mens
rea from the component crimes of plunder, my bottom-line position still
is: regardless of whether plunder is classified as mala prohibita or in
se, it is the prerogative of the legislature -- which is undeniably vested
with the authority -- to determine whether certain acts are criminal
irrespective of the actual intent of the perpetrator.
The Power of the Legislature to Penalize Certain Acts
Jurisprudence dating as far back as United States v. Siy Cong Bieng46 has
consistently recognized and upheld "the power of the legislature, on
grounds of public policy and compelled by necessity, ‘the great master of
things,’ to forbid in a limited class of cases the doing of certain acts, and
to make their commission criminal without regard to the intent of the
doer." Even earlier, in United States v. Go Chico,47 Justice Moreland
wrote that the legislature may enact criminal laws that penalize certain
acts, like the "discharge of a loaded gun," without regard for the criminal
intent of the wrongdoer. In his words:
"In the opinion of this Court it is not necessary that the appellant should
have acted with criminal intent. In many crimes, made such by statutory
enactment, the intention of the person who commits the crime is entirely
immaterial. This is necessarily so. If it were not, the statute as a deterrent
influence would be substantially worthless. It would be impossible of
execution. In many cases the act complained of is itself that which
produces the pernicious effect which the statute seeks to avoid. In those
cases the pernicious effect is produced with precisely the same force and
result whether the intention of the person performing the act is good or
bad. The case at bar is a perfect illustration of this. The display of a flag
or emblem used, particularly within a recent period, by the enemies of
the Government tends to incite resistance to governmental functions and
insurrection against governmental authority just as effectively if made in
the best of good faith as if made with the most corrupt intent. The
display itself, without the intervention of any other factor, is the evil. It is
quite different from that large class of crimes, made such by the common
law or by statute, in which the injurious effect upon the public depends
upon the corrupt intention of the person perpetrating the act. If A
discharges a loaded gun and kills B, the interest which society has in the
act depends, not upon B’s death, but upon the intention with which A
consummated the act. If the gun were discharged intentionally, with the
purpose of accomplishing the death of B, then society has been injured
and its security violated; but if the gun was discharged accidentally on
the part of A, the society, strictly speaking, has no concern in the matter,
even though the death of B results. The reason for this is that A does not
become a danger to society and its institutions until he becomes a person
with a corrupt mind. The mere discharge of the gun and the death of B
do not of themselves make him so. With those two facts must go the
corrupt intent to kill. In the case at bar, however, the evil to society and
to the Government does not depend upon the state of mind of the one
who displays the banner, but upon the effect which that display has upon
the public mind. In the one case the public is affected by the intention of
the actor; in the other by the act itself."
Without being facetious, may I say that, unlike the act of discharging a
gun, the acts mentioned in Section 1(d) -- bribery, conversion, fraudulent
conveyance, unjust enrichment and the like -- cannot be committed sans
criminal intent. And thus, I finally arrive at a point of agreement with
petitioner: that the acts enumerated in Section 1(d) are by their
nature mala in se, and most of them are in fact defined and penalized as
such by the Revised Penal Code. Having said that, I join the view that
when we speak of plunder, we are referring essentially to two or more
instances of mala in se constituting one malum prohibitum. Thus, there
should be no difficulty if each of the predicate acts be proven beyond
reasonable doubt as mala in se, even if the defense of lack of intent be
taken away as the solicitor general has suggested.
In brief, the matter of classification is not really significant, contrary to
what petitioner would have us believe. The key, obviously, is whether
the same burden of proof -- proof beyond reasonable doubt -- would
apply.
Furthermore, I also concur in the opinion of the solicitor general: if it is
conceded that the legislature possesses the requisite power and authority
to declare, by legal fiat, that acts not inherently criminal in nature are
punishable as offenses under special laws, then with more reason can it
punish as offenses under special laws those acts that are already
inherently criminal. "This is so because the greater (power to punish not
inherently criminal acts) includes the lesser (power to punish inherently
criminal acts). In eo plus sit, semper inest et minus."48
Epilogue
"The constitutionality of laws is presumed. To justify nullification of a
law, there must be a clear and unequivocal breach of the Constitution,
not a doubtful or argumentative implication; a law shall not be declared
invalid unless the conflict with the Constitution is clear beyond a
reasonable doubt. ‘The presumption is always in favor of
constitutionality x x x. To doubt is to sustain.’ x x x."49
A law should not be overturned on the basis of speculation or conjecture
that it is unconstitutionally vague. Everyone is duty-bound to adopt a
reasonable interpretation that will uphold a statute, carry out its purpose
and render harmonious all its parts. Indeed, the constitutionality of a
statute must be sustained if, as in this case, a ground therefor can
 1
possibly be found. For the unbending teaching is that a law cannot be Memorandum for Petitioner, p. 11.
2
declared invalid, unless the conflict with the Constitution is shown to be Ibid., p. 66.
3
clearly beyond reasonable doubt. Id., p.76.
To lend color and vividness to the otherwise boring legalese that has 4
Petitioner’s Memorandum, p. 16.
5
been used to dissect RA 7080, the parties to this case laced their 285 SCRA 504, January 29, 1998, per Francisco, J.
6
arguments with interesting little stories. Thus, petitioner opened his Oral GR No. 135294, November 20, 2000, per Kapunan, J.
7
Argument with an admittedly apocryphal account of a befuddled student §1(d), RA 7080, as amended.
8
of law who could not make heads or tails of the meanings of series, 165 SCRA 186, August 31, 1988, per Sarmiento, J.
9
combination and pattern. "Construction is the means by which the Court clarifies the
On the other hand, the solicitor general compares petitioner with Hans doubt to arrive at the true intent of the law." Agpalo, Statutory
Christian Andersen’s fabled tailors who tried to fool the emperor into Construction, 1990 ed., p. 44; see also Caltex v. Palomar, 18
walking around naked by making him believe that anyone who did not SCRA 247, September 29, 1966.
10
see the invisible garment, which they had supposedly sewn for him, was See People v. Purisima, 86 SCRA 542, November 20, 1978.
11
"too stupid and incompetent to appreciate its quality." This is no doubt a These deliberations are quoted in the Comment, pp. 14-15.
12
parody of the alleged vagueness of RA 7080, which is purportedly Record of the Senate, Vol. IV, No. 141, June 6, 1989, at p.
"invisible only to anyone who is too dull or dense to appreciate its 1399; quoted in the Comment, p. 16.
quality."50 13
Petitioner’s Memorandum, p. 19.
14
I do not begrudge petitioner (or his lawyers) for exhausting every known Records of the Senate, Vol. IV, No. 140, June 5, 1989, at p.
and knowable legal tactic to exculpate himself from the clutches of the 1310.
law. Neither do I blame the solicitor general, as the Republic’s counsel, 15
See discussion of Senate Bill No. 733 on June 6, 1989.
for belittling the attempt of petitioner to shortcut his difficult legal 16
Record of the Joint Conference Meeting – Committee on
dilemmas. However, this Court has a pressing legal duty to discharge: to Justice and Committee on Constitutional Amendments (S. No.
render justice though the heavens may fall. 733 & H. No. 22752), May 7, 1991, pp. 40-43.
By the Court’s Decision, petitioner is now given the occasion to face 17
The relevant portions of the Record are as follows:
squarely and on the merits the plunder charges hurled at him by the "REP. ISIDRO. I am just intrigued again by our definition
Ombudsman. He may now use this opportunity to show the courts and of plunder. We say, THROUGH A COMBINATION OR
the Filipino people that he is indeed innocent of the heinous crime of SERIES OF OVERT OR CRIMINAL ACTS AS
plunder – to do so, not by resorting to mere legalisms, but by showing MENTIONED IN SECTION ONE HEREOF. Now when
the sheer falsity of the wrongdoings attributed to him. we say combination, we actually mean to say, if there are
I think that, given his repeated claims of innocence, petitioner owes too or more means, we mean to say that number one and
that opportunity to himself, his family, and the teeming masses he claims two or number one and something else are included, how
to love. In short, the Court has rendered its judgment, and the heavens about a series of the same act? Fore example, through
have not fallen. Quite the contrary, petitioner is now accorded misappropriation, conversation, misuse, will these be
the opportunity to prove his clear conscience and inculpability. included also?
WHEREFORE, I vote to DISMISS the Petition and to uphold the THE CHAIRMAN (REP. GARCIA). Yeah, because we
constitutionality of RA 7080. say series.
REP. ISIDRO. Series.
THE CHAIRMAN (REP. GARCIA). Yeah, we include
Footnotes series.
REP. ISIDRO. But we say we begin with a combination.
THE CHAIRMAN (REP. GARCIA). Yes.
REP. ISIDRO. When we say combination, it seem that –
THE CHAIRMAN (REP. GARCIA). Two.
REP. ISIDRO. Not only two but we seem to mean that
two of the enumerated means not twice of one
enumeration.
THE CHAIRMAN (REP. GARCIA). No, no, not twice.
REP. ISIDRO. Not twice?
THE CHAIRMAN (REP. GARCIA). Yes. Combination
is not twice – but combination, two acts.
REP. ISIDRO. So in other words, that’s it. When we say
combination, we mean, two different acts. It can not be a
repetition of the same act.
THE CHAIRMAN (REP. GARCIA). That be referred to
series. Yeah.
REP. ISIDRO. No, no. Supposing one act is repeated, so
there are two.
THE CHAIRMAN (REP. GARCIA). A series.
REP. ISIDRO. That’s not series. It’s a combination.
Because when we say combination or series, we seem to
say that two or more, ‘di ba?
THE CHAIRMAN (REP. GARCIA). Yes. This
distinguishes it really the ordinary --- That’s why I said,
that’s a very good suggestion, because if it’s only one act,
it may fall under ordinary crime. But we have here a
combination or series, overt or criminal acts.
REP. ISIDRO. I know what you are talking about. For
example, through misappropriation, conversion, misuse or
malversation of public funds who raids the public
treasury, now, for example, misappropriation, if there are
a series of . . . . .
REP. ISIDRO.
. . . If there are a series of misappropriations?
THE CHAIRMAN. (REP. GARCIA P.) Yes.
REP. ISIDRO. So, these constitute illegal wealth.
THE CHAIRMAN. (REP. GARCIA P.) Yes, yes.
REP. ISIDRO. Ill-gotten
THE CHAIRMAN. (SEN. TAÑADA) Ill-gotten wealth.
THE CHAIRMAN. (REP. GARCIA P.) Series. One after
the other eh di . . .
THE CHAIRMAN. (SEN. TAÑADA), So, that would fall
under the term ‘series’?
THE CHAIRMAN. (REP. GARCIA P.) Series, oo.
REP. ISIDRO. Now, if it is combination, ano, two
misappropriations . . .
THE CHAIRMAN. (REP. GARCIA P.) It’s not, . . two
misappropriations will not be combination. Series.
REP. ISIDRO. So, it is not a combination?
THA CHAIRMAN. (REP. GARCIA P.) Yes.
REP. ISIDRO. When you say ‘combination’, two
different?
THE CHAIRMAN. (REP. GARCIA P.) Yes.
THE CHAIRMAN. (REP. TAÑADA.) Two different.
REP. ISIDRO. Two different acts.
THE CHAIRMAN. (REP. GARCIA P.) For example, ha .
..
REP. ISIDRO. Now series, meaning, repetition . . .
THE CHAIRMAN. (SEN. TAÑADA) Yes.
REP. ISIDRO. With that . . .
THE CHAIRMAN. (REP. GARCIA P.) Thank you.
THE CHAIRMAN. (SEN. TAÑADA) So, it cold be a
series of any of the acts mentioned in paragraphs 1, 3, 4, 5
of Section 2 (2), or . . 1 (d) rather, or combination of any
of he acts mentioned in paragraph 1 alone, or paragraph 2
alone or paragraph 3 or paragraph 4.
THE CHAIRMAN. (REP. GARCIA P.) I think
combination maybe . . which one? Series?
THE CHAIRMAN. (SEN. TAÑADA) Series or
combination.
REP. ISIDRO. Which one, combination or series or series
or combination?
THE CHAIRMAN. (SEN. TAÑADA) Okay, Ngayon
doon sa definition, ano, Section 2, definition, doon sa
portion ng . . . Saan iyon? As mentioned, as described . . .
THE CHAIRMAN. (SEN. TAÑADA) . . better than
‘mentioned’. Yes.
THE CHAIRMAN. (REP. GARCIA P.) Okay?
 REP. ISIDRO. Very good.
THE CHAIRMAN. (SEN. TAÑADA) Oo, marami pong
salamat.
THE CHAIRMAN. (REP. GARCIA P.) maraming
salamat po.
The meeting was adjourned at 1:33 p.m."
18
H. J., Inc. v. Northwestern Bell, (1999) 492 US 229, 106 L Ed
2d 195, 109 S Ct 2893, at p. 211: "One evident textual problem
with the suggestion that predicates form a RICO pattern only if
they are indicative of an organized crime perpetrator – in either a
traditional or functional sense – is that it would seem to require
proof that the racketeering acts were the work of an association or
group, rather than of an individual acting alone. RICO’s language
supplies no grounds to believe that Congress meant to impose
such a limit on the scope of the Act. A second indication from the
text that Congress intended no organized crime limitation is that
no such restriction is explicitly stated. In those titles of OCCA
(the Organized Crime Control Act of 1970) where Congress did
intend to limit the new law’s application to the context of
organized crime, it said so."
19
GR No. 121777, January 24, 2001, per Kapunan, J.
20
The Racketeer-Influenced and Corrupt Organizations Act
(RICO), 18 USC §§1961-1968 [18 USCS §§1961-1968] which is
Title IX of the Organized Crime Control Act of 1970 (OCCA).
21
Supra.
22
Ibid., at p. 209.
23
Id., at p. 208.
24
Id., at p. 209.
25
The relevant portion of the sponsorship speech of Senator
Tañada reads as follows:
"It cannot be seriously disputed that much of our
economic woes and the nation’s anguish are directly
attributable to the despoliation of the National Treasury
by some public officials who have held the levers of
power.
"It is sad to state, Mr. President, that there is presently no
statute that either effectively discourages or adequately
penalizes this predatory act which reached unprecedented
heights and which had been developed by its practitioners
to a high level of sophistication during the past dictatorial
regime.
"For, while it is true that we have laws defining and
penalizing graft and corruption in government and
providing for the forfeiture of unexplained wealth
acquired by public officials, it has become increasingly
evident that these legislations x x x no longer suffice to
deter massive looting of the national wealth; otherwise,
this country would not have been raided and despoiled by
the powers that be at that time.
"Indeed, there is a need to define plunder, and provide for
its separate punishment as proposed in Senate Bill No.
733; because, plunder involves not just plain thievery but
economic depredation which affects not just private
parties or personal interest but the nation as a whole. And,
therefore, Mr. President, it is a crime against national
interest which must be stopped and if possible stopped
permanently."
26
Record of the Senate, Vol. IV, No. 140, June 5, 1989, at pp.
1314-1315.
27
On pp. 19-20 of the Resolution.
28
Foote v. Nickerson, 54 L.R.A. 554.
29
Intia Jr. v. Commission on Audit, 306 SCRA 593, April 30,
1999; Paat v. Court of Appeals, 266 SCRA 167, January 10,
1997.
30
Commissioner of Internal Revenue v. S.C. Johnson and Son,
Inc., 309 SCRA 87, June 25, 1999.
31
De Guia v. Commission on Elections, 208 SCRA 420, May 6,
1992.
32
Quoted portions are excerpts from Senator Tañada’s speech
sponsoring Senate Bill No. 733, Records of the Senate, June 5,
1989.
33
During the Oral Argument, petitioner contended that Yu Cong
Eng v. Trinidad [271 US 500 (1926)] declared the Bookkeeping
Act unconstitutional for its alleged vagueness. This is incorrect.
The reason for its unconstitutionality was the violation of the
equal protection clause. Likewise, Adiong v. Comelec (207
SCRA 712, March 31, 1992) decreed as void a mere Comelec
Resolution, not a statute. Finally, Santiago v. Comelec (270
SCRA 106, March 19, 1997) declared a portion of RA 6735
unconstitutional because of undue delegation of legislative
powers, not because of vagueness.
34
237 SCRA 724, October 26, 1994.
35
224 SCRA 361, July 5, 1993.
36
Jeff Atkinson, "Racketeer Influenced and Corrupt
Organization," 18 U.S.C. 1961-1968; "Broadest of the Criminal
Statutes," 69 Journal of Criminal Law and Criminology 1 (1978),
p.1.
37
Ibid., at p. 2
38
Senator Angara’s vote explaining proposed Senate Bill No.
733; Records of the Senate, June 5, 1989.
39
Ibid.; see also Article II (Declaration of Principles and State
Policies), Section 27 of the 1987 Constitution.
40
Morfe v. Mutuc, 22 SCRA 424, January 31, 1968; Salas v.
Jarencio, 46 SCRA 734, August 30, 1972.
41
Padilla v. Court of Appeals, 269 SCRA 402, March 12, 1997;
Francisco v. Permskul, 173 SCRA 324, May 12, 1989.
42
See Article 10, Civil Code.
43
Deliberations of the Committee on Constitutional Amendments
and Revision of Laws, November 15, 1988; cited in the
Resolution of the Sandiganbayan (Third Division) dated July 9,
2001.
44
Comment, p. 29, citing the House deliberations on House Bill
No. 22572, October 9, 1990.
45
Resolution of the Sandiganbayan (Third Division) dated July 9,
2001, pp. 28-30.
46
30 Phil. 577, March 31, 1915, per Carson, J; see also US v. Ah
Chong, 15 Phil. 488, March 19, 1910 and Caram Resources
Corp. v. Contreras, supra.
47
14 Phil. 128, September 15, 1909, per Moreland, J.
48
Respondent’s Memorandum, pp. 84-85. The solicitor general
cites illegal recruitment as an example of a malum in se crime,
which the law penalizes as malum prohibitum; that is, to punish it
severely without regard to the intent of the culprit.
49
Virata v. Sandiganbayan, 202 SCRA 680, 698-699, October 15,
1991, per Davide, J. (now CJ).
50
Solicitor general’s Comment, pp. 1-2.
 [A.C. No. 3086. February 23, 1988.]
ALEXANDER PADILLA, Complainant, v. THE HON. BALTAZAR
R. DIZON, Presiding Judge of the Regional Trial Court of Pasay
City, Branch 113, Respondent.
SYLLABUS
1. ADMINISTRATIVE SUPERVISION OVER COURTS AND
COURT PERSONNEL; COMPLAINT AGAINST A JUDGE; GROSS
IGNORANCE OF THE LAW AND GROSS INCOMPETENCE;
MANIFEST IN CASE AT BAR. — The respondent judge has shown
gross incompetence or gross ignorance of the law in holding that to
convict the accused for violation of Central Bank Circular No. 960, the
prosecution must establish that the accused had the criminal intent to
violate the law. The respondent ought to know that proof of malice or
deliberate intent (mens rea) is not essential in offenses punished by
special laws, which are mala prohibita. In requiring proof of malice, the
respondent has by his gross ignorance allowed the accused to go scot
free. The accused at the time of his apprehension at the Manila
International Airport had in his possession the amount of US$355,349.57
in assorted foreign currencies and foreign exchange instruments (380
pieces), without any specific authority from the Central Bank as required
by law.
2. ID.; ID.; ID.; BOLSTERED BY RELEASE OF US$3,000 TO
ACCUSED DESPITE FORFEITURE PROCEEDINGS INITIATED BY
THE BUREAU OF CUSTOMS. — He not only acquitted the accused
Lo Chi Fai, but directed in his decision the release to the accused of at
least the amount of US$3,000.00, allowed, according to respondent,
under Central Bank Circular No. 960. This, in spite of the fact that
forfeiture proceedings had already been instituted by the Bureau of
Customs over the currency listed in the information, which according to
the respondent should be respected since the Bureau of Customs "has the
exclusive jurisdiction in the matter of seizure and forfeiture of the
property involved in the alleged infringements of the aforesaid Central
Bank Circular." In invoking the provisions of CB Circular No. 960 to
justify the release of US$3,000.00 to the accused, the respondent judge
again displayed gross incompetence and gross ignorance of the law.
There is nothing in the said CB Circular which could be taken as
authority for the trial court to release the said amount of U.S. Currency to
the accused. According to the above-cited CB Circular, tourists may take
out or send out from the Philippines foreign exchange in amounts not
exceeding such amounts of foreign exchange brought in by them; for the
purpose of establishing such amount, tourists or non-resident temporary
visitors bringing with them more than US$3,000.00 or its equivalent in
other foreign currencies must declare their foreign exchange at points of
entries upon arrival in the Philippines.
3. ID.; ID.; ID.; PENALTY. — The Court finds the respondent Regional
Trial Court Judge, Baltazar R. Dizon, guilty of gross incompetence,
gross ignorance of the law and grave and serious misconduct affecting
his integrity and efficiency, and consistent with the responsibility of this
Court for the just and proper administration of justice and for the
attainment of the objective of maintaining the people’s faith in the
judiciary (People v. Valenzuela, 135 SCRA 712), it is hereby ordered
that the Respondent Judge be dismissed from the service. All leave and
retirement benefits and privileges to which he may be entitled are hereby
forfeited with prejudice to his being reinstated in any branch of
government service, including government-owned and/or controlled
agencies or corporations.
RESOLUTION
PER CURIAM:
This is an administrative complaint, dated August 6, 1987, filed by the
then Commissioner of Customs, Alexander Padilla, against respondent
Baltazar R. Dizon, RTC Judge, Branch 115, Pasay City, for rendering a
manifestly erroneous decision due, at the very least, to gross
incompetence and gross ignorance of the law, in Criminal Case No. 86-
10126-P, entitled "People of the Philippines v. Lo Chi Fai", acquitting
said accused of the offense charged, i.e., smuggling of foreign currency
out of the country.
Required by the Court to answer the complaint, the respondent judge
filed an Answer, dated October 6, 1987, reciting his "commendable
record as a fearless prosecutor" since his appointment as Assistant City
Fiscal of Manila on December 4, 1962, until his appointment eventually
as RTC Judge on February 18, 1983; that in the reorganization of the
judiciary after the February 26, 1986 revolution, he was reappointed to
his present position; that his length of service as prosecutor and judge is
"tangible proof that would negate the allegations of the petitioner"
(should be complainant), whereas the latter did not last long in the
service for reasons only known to him; that the decision involved in the
complaint was promulgated by respondent on September 29, 1986, but
the complaint against him was filed only on August 6, 1987, a clear
indication of malice and ill-will of the complainant to subject respondent
to harassment, humiliation and vindictiveness; that his decision, of which
he submits a copy (Annex A) as part of his Answer, is based on
"fundamental principles and the foundation of rights and justice" and that
if there are mistakes or errors in the questioned decision, they are
committed in good faith. Accordingly, respondent prays for the dismissal
of the petition (should be complaint).
The issue before the Court is whether or not the respondent judge is
guilty of gross incompetence or gross ignorance of the law in rendering
the decision in question. A judge can not be held to account or answer,
criminally, civilly or administratively, for an erroneous decision rendered
by him in good faith.
The case in which the respondent rendered a decision of acquittal
involved a tourist, Lo Chi Fai, who was caught by a Customs guard at
the Manila International Airport while attempting to smuggle foreign
currency and foreign exchange instruments out of the country. Lo Chi
Fai was apprehended by a customs guard and two PAFSECOM officers
on July 9, 1986, while on board Flight PR 300 of the Philippine Air
Lines bound for Hongkong. At the time of his apprehension, he was
found carrying with him foreign currency and foreign exchange
instruments (380 pieces) amounting to US$355,349.57, in various
currency denominations, to wit: Japanese Yen, Swiss Franc, Australian
Dollar, Singapore Dollar, HFL Guilder, French Franc, U.S. Dollar,
English Pound, Malaysian Dollar, Deutsche Mark, Canadian Dollar and
Hongkong Dollar, without any authority as provided by law. At the time
the accused was apprehended, he was able to exhibit two currency
declarations which he was supposed to have accomplished upon his
arrival in Manila in previous trips, namely, CB Currency Declaration No.
05048, dated May 4, 1986 for US$39,600.00 and Japanese Yen
4,000,000.00, and CB Currency Declaration No. 06346, dated June 29,
1986 for Japanese Yen 6,600,000.00.
An information was filed against Lo Chi Fai with the RTC of Pasay City
for violation of Sec. 6, Central Bank Circular No. 960, as
follows:jgc:chanrobles.com.ph
"That on or about the 9th day of July, 1986, in the City of Pasay, Metro
Manila, Philippines and within the jurisdiction of this Honorable Court,
the above-named accused, Mr. LO CHI FAI, did then and there wilfully,
unlawfully and feloniously attempt to take out of the Philippines through
the Manila International Airport the following foreign currencies in cash
and in checks:chanrob1es virtual 1aw library
Japanese Yen 32,800,000.00
Swiss Franc SW. FR 6,9000.00
Australian Dollar A$ 17,425.00
Singapore Dollar S$ 9,945.00
Deutsche Marck DM 18,595.00
Canadian Dollar C$ 13,330.00
Hongkong Dollar HK$ 15,630.00
HFL Guilder HFL 430.00
French Franc F/ 6,860.00
US Dollar US$ 73,950.00

English Pound 5,318.00
Malaysian Dollar M$ 14,760.00
in checks)
Australian Dollar A$ 7,750.00
British Pound 700.00
US Dollar US$ 17,630.00
Canadian Dollar C$ 990.00
without authority from the Central Bank.
Contrary to Law."cralaw virtua1aw library
The case, which was docketed as Criminal Case No. 86-10126-P, was
subsequently raffled to Branch 113, presided by herein respondent Judge
Baltazar A. Dizon.
Section 6 of Circular No. 960 of the Central Bank provides as
follows:jgc:chanrobles.com.ph
"Sec. 6. Export, import of foreign exchange; exceptions. — No person
shall take out or transmit or attempt to take out or transmit foreign
exchange in any form, out of the Philippines directly, through other
persons, through the mails or through international carriers except when
specifically authorized by the Central Bank or allowed under existing
international agreements or Central Bank regulations.
Tourists and non-resident visitors may take out or send out from the
Philippine foreign exchange in amounts not exceeding such amounts of
foreign exchange brought in by them. For purposes of establishing the
amount of foreign exchange brought in or out of the Philippines, tourists
and non-resident temporary visitors bringing with them more than
US$3,000.00 or its equivalent in other foreign currencies shall declare
their foreign exchange in the form prescribed by the Central Bank at
points of entries upon arrival in the Philippines."cralaw virtua1aw library
The penal sanction is provided by Section 1, P.D. No. 1883, which reads
as follows:jgc:chanrobles.com.ph
"Section 1. Blackmarketing of Foreign Exchange. — That any person
who shall engage in the trading or purchase and sale of foreign currency
in violation of existing laws or rules and regulations of the Central Bank
shall be guilty of the crime of blackmarketing of foreign exchange and
shall suffer the penalty of reclusion temporal, (minimum of 12 years and
1 day and maximum of 20 years) and a fine of no less than fifty thousand
(P50,000.00) Pesos."cralaw virtua1aw library
At the trial, the accused tried to establish that he was a businessman from
Kowloon, Hongkong, engaged in the garment business, in which he had
invested 4 to 5 million Hongkong Dollars; that he had come to the
Philippines 9 to 10 times, although the only dates he could remember
were April 2, 1986, May 4, 1986, June 28, 1986, and July 8, 1986; that
the reason for his coming to the Philippines was to invest in business in
the Philippines and also to play in the casino; that he had a group of
business associates who decided to invest in business with him, namely:
Wakita Noboyuki, Kobayashi Nabuo, Lee Shiang Pin, Lee Chin and Cze
Kai Kwan, who had their own businesses in Japan and Hongkong; that
when he came to the Philippines on April 2, 1986, he brought
US$50,000.00 and 8,500,000.00 Japanese Yen which he tried to declare
but the Central Bank representative refused to accept his declaration,
until he could get a confirmation as to the source of the money, for which
reason he contacted his bank in Hongkong and a telex was sent to him on
April 3, 1986 (Exh. 4). He also brought in with him US$39,000.00 and
4,000,000.00 Japanese Yen when he arrived on May 4, 1986 which he
declared (Exh. 1). Again, he declared 8,600,000.00 Japanese Yen when
he arrived on June 28, 1986 (Exh. 2). He also testified that his business
associates, as per their agreement to invest in some business with him in
the Philippines, started putting their money for this purpose in a common
fund, hence, every time anyone of them came to the Philippines, they
would declare the money they were bringing in, and all declarations were
handed to and kept by him; these currency declarations were presented at
the trial as exhibits for the defense. When asked by the court why he did
not present all of these declarations when he was apprehended at the
airport, his answer was that he was not asked to present the declaration
papers of his associates, and besides, he does not understand English and
he was not told to do so. He also testified on cross-examination that the
reason he was going back to Hongkong bringing with him all the money
intended to be invested in the Philippines was because of the fear of his
group that the "revolution" taking place in Manila might become
widespread. It was because of this fear that he was urged by his
associates to come to Manila on July 8, 1986 to bring the money out of
the Philippines.
The respondent judge, in his decision acquitting the accused,
stated:jgc:chanrobles.com.ph
"The factual issue for this Court to determine is whether or not the
accused wilfully violated Section 6 of Circular No. 960. The fact that the
accused had in his possession the foreign currencies when he was about
to depart from the Philippines did not by that act alone make him liable
for Violation of Section 6.
What is imperative is the purpose for which the act of bringing foreign
currencies out of the country was done — the very intention. It is that
which qualifies the act as criminal or not. There must be that clear
intention to violate and benefit from the act done. Intent is a mental state,
the existence of which is shown by overt acts of a person."cralaw
virtua1aw library
The respondent proceeded to analyze the evidence which, according to
him, tended to show that the accused had no wilfull intention to violate
the law. According to the respondent in his
decision:jgc:chanrobles.com.ph
". . . this Court is persuaded to accept the explanation of the defense that
the currencies confiscated and/or seized from the accused belong to him
and his business associates abovenamed. And from the unwavering and
unequivocal testimonies of Mr. Templo and all of currencies in question
came from abroad and not from the local source which is what is being
prohibited by the government. Yes, simply reading the provisions of said
circular will, readily show that the currency declaration is required for
the purpose of establishing the amount of currency being brought by
tourist or temporary non-resident visitors into the country. The currency
declarations, therefore, is already (sic) intended to serve as a guideline
for the Customs authorities to determine the amounts actually brought in
by them to correspond to the amounts that could be allowed to be taken
out. Indeed, this Court is amazed and really has its misgivings in the
manner currency declarations were made as testified to by the Central
Bank employees. Why the Bureau of Customs representative never took
part in all these declarations testified to by no less than five (5) Central
Bank employees? Seemingly, these employees are the favorites of these
travellers. It is the hope of this Court that the authorities must do
something to remedy the evident flaw in the system for effective
implementation of the questioned Central Bank Circular No. 960.
But even with a doubtful mind this Court would not be able to pin
criminal responsibility on the accused. This is due to its steadfast
adherence and devotion to the rule of law — a factor in restoring the
almost lost faith and erosion of confidence of the people in the
administration of justice. Courts of Justice are guided only by the rule of
evidence."cralaw virtua1aw library
The respondent judge has shown gross incompetence or gross ignorance
of the law in holding that to convict the accused for violation of Central
Bank Circular No. 960, the prosecution must establish that the accused
had the criminal intent to violate the law. The respondent ought to know
that proof of malice or deliberate intent (mens rea) is not essential in
offenses punished by special laws, which are mala prohibita. In requiring
proof of malice, the respondent has by his gross ignorance allowed the
accused to go scot free. The accused at the time of his apprehension at
the Manila International Airport had in his possession the amount of
US$355,349.57 in assorted foreign currencies and foreign exchange
instruments (380 pieces), without any specific authority from the Central
Bank as required by law. At the time of his apprehension, he was able to
exhibit only two foreign currency declarations in his possession. These
were old declarations made by him on the occasion of his previous trips
to the Philippines.
Although lack of malice or wilfull intent is not a valid defense in a case
for violation of Central Bank Circular No. 960, the respondent
nonetheless chose to exonerate the accused based on his defense that the
foreign currency he was bringing out of the country at the time he was
apprehended by the customs authorities were brought into the
Philippines by him and his alleged business associates on several
previous occasions when they came to the Philippines, supposedly to be
used for the purpose of investing in some unspecified or undetermined
business ventures; that this money was kept in the Philippines and he
precisely came to the Philippines to take the money out as he and his
alleged business associates were afraid that the "attempted revolution"
which occurred on July 6, 1986 might spread. Such fantastic tale,
although totally irrelevant to the matter of the criminal liability of the
accused under the information, was swallowed by the respondent judge
"hook, line and sinker." It did not matter to the respondent that the
foreign currency and foreign currency instruments found in the
possession of the accused when he was apprehended at the airport — 380
pieces in all — and the amounts of such foreign exchange did not
correspond to the foreign currency declarations presented by the accused
at the trial. It did not matter to the respondent that the accused by his
own story admitted, in effect, that he was a "carrier" of foreign currency
for other people. The respondent closed his eyes to the fact that the very
substantial amounts of foreign exchange found in the possession of the
accused at the time of his apprehension consisted of personal checks of
other people, as well as cash in various currency denominations (12
kinds of currency in all), which clearly belied the claim of the accused
that they were part of the funds which he and his supposed associates
had brought in and kept in the Philippines for the purpose of investing in
some business ventures. The respondent ignored the fact that most of the
CB Currency declarations presented by the defense at the trial were
declarations belonging to other people which could not be utilized by the
accused to justify his having the foreign exchange in his possession.
Although contrary to ordinary human experience and behavior, the
respondent judge chose to give credence to the fantastic tale of the
accused that he and his alleged business associates had brought in from
time to time and accumulated and kept in the Philippines foreign
exchange (of very substantial amounts in cash and checks in various
foreign currency denominations) for the purpose of investing in business
even before they knew and had come to an agreement as to the specific
business venture in which they were going to invest. These and other
circumstances which make the story concocted by the accused so
palpably unbelievable as to render the findings of the respondent judge
obviously contrived to favor the acquittal of the accused, thereby clearly
negating his claim that he rendered the decision "in good faith." His
actuations in this case amount to grave misconduct prejudicial to the
interest of sound and fair administration of justice.
He not only acquitted the accused Lo Chi Fai, but directed in his decision
the release to the accused of at least the amount of US$3,000.00,
allowed, according to respondent, under Central Bank Circular No. 960.
This, in spite of the fact that forfeiture proceedings had already been
instituted by the Bureau of Customs over the currency listed in the
information, which according to the respondent should be respected
since the Bureau of Customs "has the exclusive jurisdiction in the matter
of seizure and forfeiture of the property involved in the alleged
infringements of the aforesaid Central Bank Circular." In invoking the
provisions of CB Circular No. 960 to justify the release of US$3,000.00
to the accused, the respondent judge again displayed gross incompetence
and gross ignorance of the law. There is nothing in the said CB Circular
which could be taken as authority for the trial court to release the said
amount of U.S. Currency to the accused. According to the above-cited
CB Circular, tourists may take out or send out from the Philippines
foreign exchange in amounts not exceeding such amounts of foreign
exchange brought in by them; for the purpose of establishing such
amount, tourists or non-resident temporary visitors bringing with them
more than US$3,000.00 or its equivalent in other foreign currencies must
declare their foreign exchange at points of entries upon arrival in the
Philippines. In other words, CB Circular No. 960 merely provides that
for the purpose of establishing the amount of foreign currency brought in
or out of the Philippines, a tourist upon arrival is required to declare any
foreign exchange he is bringing in at the time of his arrival, if the same
exceeds the amount of US$3,000.00 or its equivalent in other foreign
currencies. There is nothing in said circular that would justify returning
to him the amount of at least US$3,000.00, if he is caught attempting to
bring out foreign exchange in excess of said amount without specific
authority from the Central Bank.
Accordingly, the Court finds the respondent Regional Trial Court Judge,
Baltazar R. Dizon, guilty of gross incompetence, gross ignorance of the
law and grave and serious misconduct affecting his integrity and
efficiency, and consistent with the responsibility of this Court for the just
and proper administration of justice and for the attainment of the
objective of maintaining the people’s faith in the judiciary (People v.
Valenzuela, 135 SCRA 712), it is hereby ordered that the Respondent
Judge be DISMISSED from the service. All leave and retirement benefits
and privileges to which he may be entitled are hereby forfeited with
prejudice to his being reinstated in any branch of government service,
including government-owned and/or controlled agencies or corporations.

This resolution is immediately executory.

SO ORDERED.

Teehankee (C.J.), Yap, Fernan, Melencio-Herrera, Gutierrez, Jr., Cruz,

Paras, Feliciano, Gancayco, Bidin, Sarmiento, Cortes and Griño-
Aquino, JJ., concur.

Narvasa, J., no part: did not participate in deliberations.

Padilla, J., no part — related to petitioner.

G.R. No. 121917 March 12, 1997
ROBIN CARIÑO PADILLA @ ROBINHOOD
PADILLA, petitioner,
vs.
COURT OF APPEALS and PEOPLE of the
PHILIPPINES, respondents.
FRANCISCO, J.:
On October 26, 1992, high-powered firearms with live ammunitions
were found in the possession of petitioner Robin Padilla @ Robinhood
Padilla, i.e.:
(1) One .357 Caliber revolver, Smith and Wesson, SN-
32919 with six (6) live ammunitions;
(2) One M-16 Baby Armalite rifle, SN-RP 131120 with
four (4) long and one (1) short magazine with
ammunitions;
(3) One .380 Pietro Beretta, SN-A 35723 Y with clip and
eight (8) ammunitions; and
(4) Six additional live double action ammunitions of .38
caliber revolver.1
Petitioner was correspondingly charged on December 3, 1992, before the
Regional Trial Court (RTC) of Angeles City with illegal possession of
firearms and ammunitions under P.D. 18662 thru the following
Information:3
That on or about the 26th day of October, 1992, in the
City of Angeles, Philippines, and within the jurisdiction
of this Honorable Court, the above-named accused, did
then and there willfully, unlawfully and feloniously have
in his possession and under his custody and control one
(1) M-16 Baby Armalite rifle, SN-RP 131120 with four
(4) long and one (1) short magazines with ammunitions,
one (1) .357 caliber revolver Smith and Wesson, SN-
32919 with six (6) live ammunitions and one (1) .380
Pietro Beretta, SN-A35723Y with clip and eight (8)
ammunitions, without having the necessary authority and
permit to carry and possess the same.
ALL CONTRARY TO LAW. 4
The lower court then ordered the arrest of petitioner,5 but granted
his application for bail. 6 During the arraignment on January 20,
1993, a plea of not guilty was entered for petitioner after he
refused, 7 upon advice of counsel, 8 to make any plea. 9 Petitioner
waived in writing his right to be present in any and all stages of
the case. 10
After trial, Angeles City RTC Judge David Rosete rendered judgment
dated April 25, 1994 convicting petitioner of the crime charged and
sentenced him to an "indeterminate penalty from 17 years, 4 months and
1 day of reclusion temporal as minimum, to 21 years of reclusion
perpetua, as maximum". 11 Petitioner filed his notice of appeal on April
28, 1994. 12 Pending the appeal in the respondent Court of
Appeals, 13 the Solicitor-General, convinced that
the conviction shows strong evidence of guilt, filed on December 2, 1994
a motion to cancel petitioner's bail bond. The resolution of this motion
was incorporated in the now assailed respondent court's decision
sustaining petitioner's conviction 14 the dispositive portion of which
reads:
WHEREFORE, the foregoing circumstances considered,
the appealed decision is hereby AFFIRMED, and
furthermore, the P200,000.00 bailbond posted by
accused-appellant for his provisional liberty, FGU
Insurance Corporation Bond No. JCR (2) 6523, is hereby
cancelled. The Regional Trial Court, Branch 61, Angeles
City, is directed to issue the Order of Arrest of accused-
appellant and thereafter his transmittal to the National
Bureau of Prisons thru the Philippine National Police
where the said accused-appellant shall remain under
confinement pending resolution of his appeal, should he
appeal to the Supreme Court. This shall be immediately
executory. The Regional Trial Court is further directed to
submit a report of compliance herewith.
SO ORDERED. 15
Petitioner received a copy of this decision on July 26, 1995. 16 On
August 9, 1995 he filed a "motion for reconsideration (and to
recall the warrant of arrest)" 17 but the same was denied by
respondent court in its September 20, 1995 Resolution 18 copy of
which was received by petitioner on September 27, 1995. The
next day, September 28, petitioner filed the instant petition for
review on certiorari with application for bail 19followed by two
"supplemental petitions" filed by different counsels, 20 a "second
 supplemental petition" 21 and an urgent motion for the separate
resolution of his application for bail. Again, the Solicitor-
General 22 sought the denial of the application for bail, to which
the Court agreed in a Resolution promulgated on July 31,
1996. 23 The Court also granted the Solicitor-General's motion to
file a consolidated comment on the petitions and thereafter
required the petitioner to file his reply. 24 However, after his
vigorous resistance and success on the intramural of bail (both in
the respondent court and this Court) and thorough exposition of
petitioner's guilt in his 55-page Brief in the respondent court, the
Solicitor-General now makes a complete turnabout by filing a
"Manifestation In Lieu Of Comment" praying for petitioner's
acquittal. 25
The People's detailed narration of facts, well-supported by evidence on
record and given credence by respondent court, is as follows: 26
At about 8:00 o'clock in the evening of October 26, 1992,
Enrique Manarang and his compadre Danny Perez were
inside the Manukan sa Highway Restaurant in Sto. Kristo,
Angeles City where they took shelter from the heavy
downpour (pp. 5-6, TSN, February 15, 1993) that had
interrupted their ride on motorcycles (pp 5-6, ibid.) along
McArthur Highway (ibid). While inside the restaurant,
Manarang noticed a vehicle, a Mitsubishi Pajero, running
fast down the highway prompting him to remark that the
vehicle might get into an accident considering the
inclement weather. (p. 7, Ibid) In the local vernacular, he
said thus: "Ka bilis na, mumuran pa naman pota
makaaksidente ya." (p. 7, ibid). True enough, immediately
after the vehicle had passed the restaurant, Manarang and
Perez heard a screeching sound produced by the sudden
and hard braking of a vehicle running very fast (pp. 7-
8, ibid) followed by a sickening sound of the vehicle
hitting something (p. 8, ibid). Danny Cruz, quite sure of
what had happened, remarked "oy ta na" signifying that
Manarang had been right in his observation (pp. 8-
9, ibid).
Manarang and Cruz went out to investigate and
immediately saw the vehicle occupying the edge or
shoulder of the highway giving it a slight tilt to its side
(pp. 9-10, ibid). Manarang, being a member of both the
Spectrum, a civic group and the Barangay Disaster
Coordinating Council, decided to report the incident to
the Philippine National Police of Angeles City (p.
10, ibid). He took out his radio and called the Viper, the
radio controller of the Philippine National Police of
Angeles City (p. 10, ibid). By the time Manarang
completed the call, the vehicle had started to leave the
place of the accident taking the general direction to the
north (p. 11, ibid).
Manarang went to the location of the accident and found
out that the vehicle had hit somebody (p. 11, ibid).
He asked Cruz to look after the victim while he went back
to the restaurant, rode on his motorcycle and chased the
vehicle (p. 11 ibid). During the chase he was able to make
out the plate number of the vehicle as PMA 777 (p. 33,
TSN, February 15, 1193). He called the Viper through the
radio once again (p. 34, ibid) reporting that a vehicle
heading north with plate number PMA 777 was involved
in a hit and run accident (p. 20, TSN, June 8, 1993). The
Viper, in the person of SP02 Ruby Buan, upon receipt of
the second radio call flashed the message to all units of
PNP Angeles City with the order to apprehend the vehicle
(p. 20, ibid). One of the units of the PNP Angeles City
reached by the alarm was its Patrol Division at Jake
Gonzales Street near the Traffic Division (pp. 5-7, TSN,
February 23, 1993). SPO2 Juan C. Borja III and SPO2
Emerlito Miranda immediately borded a mobile patrol
vehicle (Mobile No. 3) and positioned themselves near
the south approach of Abacan bridge since it was the only
passable way going to the north (pp. 8-9, ibid). It took
them about ten (10) seconds to cover the distance between
their office and the Abacan bridge (p. 9, ibid).
Another PNP mobile patrol vehicle that responded to the
flash message from SPO2 Buan was Mobile No. 7 of the
Pulongmaragal Detachment which was then conducting
patrol along Don Juico Avenue (pp. 8-9, TSN, March 8,
1993). On board were SPO Ruben Mercado and SPO3
Tan and SPO2 Odejar (p. 8, ibid). SPO Ruben Mercado
immediately told SPO3 Tan to proceed to the MacArthur
Highway to intercept the vehicle with plate number PMA
777 (p. 10, ibid).
In the meantime, Manarang continued to chase the vehicle
which figured in the hit and run incident, even passing
through a flooded portion of the MacArthur Highway two
(2) feet deep in front of the Iglesia ni Kristo church but he
could not catch up with the same vehicle (pp. 11-12,
February 15, 1993). When he saw that the car he was
chasing went towards Magalang, he proceeded to Abacan
bridge because he knew Pulongmaragal was not passable
(pp. 12-14, ibid). When he reached the Abacan bridge, he
found Mobile No. 3 and SPO2 Borja and SPO2 Miranda
watching all vehicles coming their way (p. 10, TSN,
February 23, 1993). He approached them and informed
them that there was a hit and run incident (p. 10, ibid).
Upon learning that the two police officers already knew
about the incident, Manarang went back to where he came
from (pp. 10-11; ibid). When Manarang was in front of
Tina's Restaurant, he saw the vehicle that had figured in
the hit and run incident emerging from the corner
adjoining Tina's Restaurant (p. 15, TSN, February 15,
1993). He saw that the license plate hanging in front of
the vehicle bore the identifying number PMA 777 and he
followed it (p. 15, ibid) towards the Abacan bridge.
Soon the vehicle was within sight of SPO2 Borja and
SPO2 Miranda of Mobile No. 3 (p. 10, TSN, February 23,
1993). When the vehicle was about twelve (12) meters
away from their position, the two police officers boarded
their Mobile car, switched on the engine, operated the
siren and strobe light and drove out to intercept the
vehicle (p. 11, ibid). They cut into the path of the vehicle
forcing it to stop (p. 11, ibid).
SPO2 Borja and SPO2 Miranda alighted from Mobile No.
3 (P. 12, TSN, February 23, 1993). SPO2 Miranda went
to the vehicle with plate number PMA 777 and instructed
its driver to alight (p. 12, ibid). The driver rolled down the
window and put his head out while raising both his hands.
They recognized the driver as Robin C. Padilla, appellant
in this case (p. 13, ibid). There was no one else with him
inside the vehicle (p. 24). At that moment, Borja noticed
that Manarang arrived and stopped his motorcycle behind
the vehicle of appellant (p. 14, ibid). SPO2 Miranda told
appellant to alight to which appellant complied. Appellant
was wearing a short leather jacket (p. 16, TSN, March 8,
1993) such that when he alighted with both his hands
raised, a gun (Exhibit "C") tucked on the left side of his
waist was revealed (p. 15, TSN, February 23, 1993), its
butt protruding (p. 15, ibid). SPO2 Borja made the move
to confiscate the gun but appellant held the former's hand
alleging that the gun was covered by legal papers (p.
16, ibid). SPO2 Borja, however, insisted that if the gun
really was covered by legal papers, it would have to be
shown in the office (p. 16, ibid). After disarming
appellant, SPO2 Borja told him about the hit and run
incident which was angrily denied by appellant (p.
17, ibid). By that time, a crowd had formed at the place
(p. 19, ibid). SPO2 Borja checked the cylinder of the gun
and find six (6) live bullets inside (p. 20, ibid).
While SPO2 Borja and appellant were arguing, Mobile
No. 7 with SPO Ruben Mercado, SPO3 Tan and SPO2
Odejar on board arrived (pp. 11-12, TSN, March 8, 1993).
As the most senior police officer in the group, SPO
Mercado took over the matter and informed appellant that
he was being arrested for the hit and run incident (p.
13, ibid). He pointed out to appellant the fact that the
plate number of his vehicle was dangling and the railing
and the hood were dented (p. 12, ibid). Appellant,
however, arrogantlydenied his misdeed and, instead,
played with the crowd by holding their hands with one
hand and pointing to SPO3 Borja with his right hand
saying "iyan, kinuha ang baril ko" (pp. 13-15, ibid).
Because appellant's jacket was short, his gesture exposed
a long magazine of an armalite rifle tucked in appellant 's
back right, pocket (p. 16, ibid). SPO Mercado saw this
and so when appellant turned around as he was talking
and proceeding to his vehicle, Mercado confiscated the
magazine from appellant (pp. 16-17, ibid). Suspecting that
appellant could also be carrying a rifle inside the vehicle
since he had a magazine, SPO2 Mercado prevented
appellant from going back to his vehicle by opening
himself the door of appellant's vehicle (16-17, ibid). He
saw a baby armalite rifle (Exhibit D) lying horizontally at
the front by the driver 's seat. It had a long magazine filled
with live bullets in a semi-automatic mode (pp. 17-
21, ibid). He asked appellant for the papers covering the
rifle and appellant answered angrily that they were at his
home (pp. 26-27, ibid). SPO Mercado modified the arrest
of appellant by including as its ground illegal possession
of firearms (p. 28, ibid). SPO Mercado then read to
appellant his constitutional rights (pp. 28-29, ibid).
The police officers brought appellant to the Traffic
Division at Jake Gonzales Boulevard (pp. 31-32, ibid)
where appellant voluntarily surrendered a third firearm, a
pietro berreta pistol (Exhibit "L") with a single round in
its chamber and a magazine (pp. 33-35, ibid) loaded with
seven (7) other live bullets. Appellant also voluntarily
surrendered a black bag containing two additional long
magazines and one short magazine (Exhibits M, N, and O,
pp. 36-37, ibid). After appellant had been interrogated by
the Chief of the Traffic Division, he was transferred to the
Police Investigation Division at Sto. Rosario Street beside
the City Hall Building where he and the firearms and
ammunitions were turned over to SPO2 Rene Jesus
Gregorio (pp. 5-10, TSN, July 13, 1993). During the
investigation, appellant admitted possession of the
firearms stating that he used them for shooting (p.
14, ibid). He was not able to produce any permit to carry
or memorandum receipt to cover the three firearms (pp.
16-18, TSN, January 25, 1994).
On November 28, 1992, a certification (Exhibit "F") was
issued by Captain, Senior Inspector Mario Espino, PNP,
Chief, Record Branch of the Firearms and Explosives
Office (pp. 7-8, TSN, March 4, 1993). The Certification
stated that the three firearms confiscated from appellant,
an M-16 Baby armalite rifle SN-RP 131280, a .357
caliber revolver Smith and Wesson SN 32919 and a .380
Pietro Beretta SN-A35720, were not registered in the
name of Robin C. Padilla (p. 6, ibid). A second
Certification dated December 11, 1992 issued by Captain
Espino stated that the three firearms were not also
registered in the name of Robinhood C. Padilla (p.
10, ibid).
Petitioner's defenses are as follows: (1) that his arrest was illegal and
consequently, the firearms and ammunitions taken in the course thereof
are inadmissible in evidence under the exclusionary rule; (2) that he is a
confidential agent authorized, under a Mission Order and Memorandum
Receipt, to carry the subject firearms; and (3) that the penalty for simple
illegal possession constitutes excessive and cruel punishment proscribed
by the 1987 Constitution.
After a careful review of the records 27 of this case, the Court is
convinced that petitioner's guilt of the crime charged stands on terra
firma, notwithstanding the Solicitor-General's change of heart.
Anent the first defense, petitioner questions the legality of his arrest.
There is no dispute that no warrant was issued for the arrest of petitioner,
but that per se did not make his apprehension at the Abacan bridge
illegal.
Warrantless arrests are sanctioned in the following instances: 28
Sec. 5. Arrest without warrant; when lawful. — A peace
officer or a private person may, without a warrant, arrest a
person:
(a) When, in his presence, the person to be arrested has
committed, is actually committing, or is attempting to
commit an offense;
(b) When an offense has in fact just been committed, and
he has personal knowledge of facts indicating that the
person to be arrested has committed it.
(c) When the person to be arrested is a prisoner who has
escaped from a penal establishment or place where he is
serving final judgment or temporarily confined while his
case is pending, or has escaped while being transferred
from one confinement to another.
Paragraph (a) requires that the person be arrested (i) after he has
committed or while he is actually committing or is at least
attempting to commit an offense, (ii) in the presence of the
arresting officer or private person. 29 Both elements concurred
 here, as it has been established that petitioner's vehicle figured in
a hit and run — an offense committed in the "presence" of
Manarang, a private person, who then sought to arrest petitioner.
It must be stressed at this point that "presence" does not only
require that the arresting person sees the offense, but also when
he "hears the disturbance created thereby AND proceeds at once
to the scene." 30 As testified to by Manarang, he heard the
screeching of tires followed by a thud, saw the sideswiped victim
(balut vendor), reported the incident to the police and thereafter
gave chase to the erring Pajero vehicle using his motorcycle in
order to apprehend its driver. After having sent a radio report to
the PNP for assistance, Manarang proceeded to the Abacan
bridge where he found responding policemen SPO2 Borja and
SPO2 Miranda already positioned near the bridge who effected
the actual arrest of petitioner. 31
Petitioner would nonetheless insist on the illegality of his arrest by
arguing that the policemen who actually arrested him were not at the
scene of the hit and run. 32 We beg to disagree. That Manarang decided
to seek the aid of the policemen (who admittedly were nowhere in the
vicinity of the hit and run) in effecting petitioner's arrest, did not in any
way affect the propriety of the apprehension. It was in fact the most
prudent action Manarang could have taken rather than collaring
petitioner by himself, inasmuch as policemen are unquestionably better
trained and well-equipped in effecting an arrest of a suspect (like herein
petitioner) who, in all probability, could have put up a degree of
resistance which an untrained civilian may not be able to contain without
endangering his own life. Moreover, it is a reality that curbing
lawlessness gains more success when law enforcers function in
collaboration with private citizens. It is precisely through this
cooperation, that the offense herein involved fortunately did not become
an additional entry to the long list of unreported and unsolved crimes.
It is appropriate to state at this juncture that a suspect, like petitioner
herein, cannot defeat the arrest which has been set in motion in a public
place for want of a warrant as the police was confronted by an urgent
need to render aid or take action. 33 The exigent circumstances of — hot
pursuit, 34 a fleeing suspect, a moving vehicle, the public place and the
raining nighttime — all created a situation in which speed is essential
and delay improvident. 35 The Court acknowledges police authority to
make the forcible stop since they had more than mere "reasonable and
articulable" suspicion that the occupant of the vehicle has been engaged
in criminal activity. 36 Moreover, when caught in flagrante delicto with
possession of an unlicensed firearm (Smith & Wesson) and ammunition
(M-16 magazine), petitioner's warrantless arrest was proper as he was
again actually committing another offense (illegal possession of firearm
and ammunitions) and this time in the presence of a peace officer. 37
Besides, the policemen's warrantless arrest of petitioner could likewise
be justified under paragraph (b) as he had in fact just committed an
offense. There was no supervening event or a considerable lapse of time
between the hit and run and the actual apprehension. Moreover, after
having stationed themselves at the Abacan bridge in response to
Manarang's report, the policemen saw for themselves the fast
approaching Pajero of petitioner, 38 its dangling plate number (PMA 777
as reported by Manarang), and the dented hood and railings
thereof. 39 These formed part of the arresting police officer's personal
knowledge of the facts indicating that petitioner's Pajero was indeed the
vehicle involved in the hit and run incident. Verily then, the arresting
police officers acted upon verified personal knowledge and not on
unreliable hearsay information. 40
Furthermore, in accordance with settled jurisprudence, any objection,
defect or irregularity attending an arrest must be made before the accused
enters his plea. 41 Petitioner's belated challenge thereto aside from his
failure to quash the information, his participation in the trial and by
presenting his evidence, placed him in estoppel to assail the legality of
his arrest. 42 Likewise, by applying for bail, petitioner patently waived
such irregularities and defects. 43
We now go to the firearms and ammunitions seized from petitioner
without a search warrant, the admissibility in evidence of which, we
uphold.
The five (5) well-settled instances when a warrantless search and seizure
of property is valid, 44 are as follows:
1. warrantless search incidental to a lawful arrest
recognized under Section 12, Rule 126 of the Rules of
Court 45 and by prevailing jurisprudence 46,
2. Seizure of evidence in "plain view", the elements of
which are: 47
(a). a prior valid intrusion based on the
valid warrantless arrest in which the police
 are legally present in the pursuit of their
official duties;
(b). the evidence was inadvertently
discovered by the police who had the right
to be where they are;
(c). the evidence must be immediately
apparent, and
(d). "plain view" justified mere seizure of
evidence without further search. 48
3. search of a moving vehicle. 49 Highly regulated by the
government, the vehicle's inherent mobility reduces
expectation of privacy especially when its transit in public
thoroughfares furnishes a highly reasonable suspicion
amounting to probable cause that the occupant committed
a criminal activity. 50
4. consented warrantless search, and
5. customs search.
In conformity with respondent court's observation, it indeed appears that
the authorities stumbled upon petitioner's firearms and ammunitions
without even undertaking any active search which, as it is commonly
understood, is a prying into hidden places for that which is
concealed. 51 The seizure of the Smith & Wesson revolver and an M-16
rifle magazine was justified for they came within "plain view" of the
policemen who inadvertently discovered the revolver and magazine
tucked in petitioner's waist and back pocket respectively, when he raised
his hands after alighting from his Pajero. The same justification applies
to the confiscation of the M-16 armalite rifle which was immediately
apparent to the policemen as they took a casual glance at the Pajero and
saw said rifle lying horizontally near the driver's seat. 52 Thus it has been
held that:
(W)hen in pursuing an illegal action or in the commission
of a criminal offense, the . . . police officers should
happen to discover a criminal offense being committed by
any person, they are not precluded from performing their
duties as police officers for the apprehension of the guilty
person and the taking of the, corpus delicti. 53
Objects whose possession are prohibited by law
inadvertently found in plain view are subject to seizure
even without a warrant. 54
With respect to the Berreta pistol and a black bag containing
assorted magazines, petitioner voluntarily surrendered them to
the police. 55 This latter gesture of petitioner indicated a waiver of
his right against the alleged search and seizure 56, and that his
failure to quash the information estopped him from assailing any
purported defect. 57
Even assuming that the firearms and ammunitions were products of an
active search done by the authorities on the person and vehicle of
petitioner, their seizure without a search warrant nonetheless can still be
justified under a search incidental to a lawful arrest (first instance). Once
the lawful arrest was effected, the police may undertake a protective
search 58 of the passenger compartment and containers in the
vehicle 59 which are within petitioner's grabbing distance regardless of
the nature of the offense. 60 This satisfied the two-tiered test of an
incidental search: (i) the item to be searched (vehicle) was within the
arrestee's custody or area of immediate control 61 and (ii) the search was
contemporaneous with the arrest. 62 The products of that search are
admissible evidence not excluded by the exclusionary rule. Another
justification is a search of a moving vehicle (third instance). In
connection therewith, a warrantless search is constitutionally permissible
when, as in this case, the officers conducting the search have reasonable
or probable cause to believe, before the search, that either the motorist is
a law-offender (like herein petitioner with respect to the hit and run) or
the contents or cargo of the vehicle are or have been instruments or the
subject matter or the proceeds of some criminal offense. 63
Anent his second defense, petitioner contends that he could not be
convicted of violating P.D. 1866 because he is an appointed civilian
agent authorized to possess and carry the subject firearms and
ammunition as evidenced by a Mission Order 64 and Memorandum
Receipt duly issued by PNP Supt. Rodialo Gumtang, the deputy
commander of Task Force Aguila, Lianga, Surigao del Sur. The
contention lacks merit.
In crimes involving illegal possession of firearm, two requisites must be
established, viz.: (1) the existence of the subject firearm and, (2) the fact
that the accused who owned or possessed the firearm does not have the
corresponding license or permit to possess. 65 The first element is beyond
dispute as the subject firearms and ammunitions 66 were seized from
petitioner's possession via a valid warrantless search, identified and
offered in evidence during trial. As to the second element, the same was
convincingly proven by the prosecution. Indeed, petitioner's purported
Mission Order and Memorandum Receipt are inferior in the face of the
more formidable evidence for the prosecution as our meticulous review
of the records reveals that the Mission Order and Memorandum Receipt
were mere afterthoughts contrived and issued under suspicious
circumstances. On this score, we lift from respondent court's incisive
observation. Thus:
Appellant's contention is predicated on the assumption
that the Memorandum Receipts and Mission Order were
issued before the subject firearms were seized and
confiscated from him by the police officers in Angeles
City. That is not so. The evidence adduced indicate that
the Memorandum Receipts and Mission Order were
prepared and executed long after appellant had been
apprehended on October 26, 1992.
Appellant, when apprehended, could not show any
document as proof of his authority to possess and carry
the subject firearms. During the preliminary investigation
of the charge against him for illegal possession of
firearms and ammunitions he could not, despite the ample
time given him, present any proper document showing his
authority. If he had, in actuality, the Memorandum
Receipts and Missions Order, he could have produced
those documents easily, if not at the time of apprehension,
at least during the preliminary investigation. But neither
appellant nor his counsel inform the prosecutor that
appellant is authorized to possess and carry the subject
firearms under Memorandum Receipt and Mission Order.
At the initial presentation of his evidence in court,
appellant could have produced these documents to belie
the charged against him. Appellant did not. He did not
even take the witness stand to explain his possession of
the subject firearms.
Even in appellant's Demurrer to Evidence filed after the
prosecution rested contain no allegation of a
Memorandum Receipts and Mission Order authorizing
appellant to possess and carry the subject firearms.
At the initial presentation of appellant's evidence, the
witness cited was one James Neneng to whom a subpoena
was issued. Superintendent Gumtang was not even
mentioned. James Neneng appeared in court but was not
presented by the defense. Subsequent hearings were reset
until the defense found Superintendent Gumtang who
appeared in court without subpoena on January 13,
1994. 67
The Court is baffled why petitioner failed to produce and present the
Mission Order and Memorandum Receipt if they were really issued and
existing before his apprehension. Petitioner's alternative excuses that the
subject firearms were intended for theatrical purposes, or that they were
owned by the Presidential Security Group, or that his Mission Order and
Memorandum Receipt were left at home, further compound their
irregularity. As to be reasonably expected, an accused claiming
innocence, like herein petitioner, would grab the earliest opportunity to
present the Mission Order and Memorandum Receipt in question and
save himself from the long and agonizing public trial and spare him from
proffering inconsistent excuses. In fact, the Mission Order itself, as well
as the Letter-Directive of the AFP Chief of Staff, is explicit in providing
that:
VIII. c. When a Mission Order is requested for
verification by enforcement units/personnels such as PNP,
Military Brigade and other Military Police Units of AFP,
the Mission Order should be shown without resentment to
avoid embarrassment and/or misunderstanding.
IX. d. Implicit to this Mission Order is the injunction that
the confidential instruction will be carried out through all
legal means and do not cover an actuation in violation of
laws. In the latter event, this Mission Order is rendered
inoperative in respect to such violation. 68
which directive petitioner failed to heed without cogent
explanation.
The authenticity and validity of the Mission Order and Memorandum
Receipt, moreover, were ably controverted. Witness for the prosecution
Police Supt. Durendes denied under oath his signature on the dorsal side
of the Mission Order and declared further that he did not authorize
anyone to sign in his
behalf. 69 His surname thereon, we note, was glaringly misspelled as
"Durembes." 70 In addition, only Unit Commanders and Chief of Offices
have the authority to issue Mission Orders and Memorandum Receipts
under the Guidelines on the Issuance of MOs, MRs, & PCFORs. 71 PNP
Supt. Rodialo Gumtang who issued petitioner's Mission Order and
Memorandum Receipt is neither a Unit Commander nor the Chief of
Office, but a mere deputy commander. Having emanated from an
unauthorized source, petitioner's Mission Order and Memorandum
Receipt are infirm and lacking in force and effect. Besides, the Mission
Order covers "Recom 1-12-Baguio City," 72 areas outside Supt.
Gumtang's area of responsibility thereby needing prior approval "by next
higher Headquarters" 73 which is absent in this case. The Memorandum
Receipt is also unsupported by a certification as required by the March 5,
1988 Memorandum of the Secretary of Defense which pertinently
provides that:
No memorandum receipt shall be issued for a CCS
firearms without corresponding certification from the
corresponding Responsible Supply Officer of the
appropriate AFP unit that such firearm has been officially
taken up in that units property book, and that report of
such action has been reported to higher AFP authority.
Had petitioner's Memorandum Receipt been authentic, we see no
reason why he cannot present the corresponding certification as
well.
What is even more peculiar is that petitioner's name, as certified to by the
Director for Personnel of the PNP, does not even appear in the Plantilla
of Non-Uniform Personnel or in the list of Civilian Agents or Employees
of the PNP which could justify the issuance of a Mission Order, a fact
admitted by petitioner's counsel. 74 The implementing rules of P.D. 1866
issued by the then PC-INP Chief and Director-General Lt. Gen. Fidel V.
Ramos are clear and unambiguous, thus:
No Mission Order shall be issued to any civilian agent
authorizing the same to carry firearms outside residence
unless he/she is included in the regular plantilla of the
government agency involved in law enforcement and is
receiving regular compensation for the services he/she is
rendering in the agency. Further, the civilian agent must
be included in a specific law
enforcement/police/intelligence project proposal or
special project which specifically required the use of
firearms(s) to insure its accomplishment and that the
project is duly approved at the PC Regional Command
level or its equivalent level in other major services of the
AFP, INP and NBI, or at higher levels of
command. 75Circular No. 1, dated January 6, 1986, of the
then Ministry of Justice likewise provides as follows:
If mission orders are issued to civilians (not members of
the uniformed service), they must be civilian agents
included in the regular plantilla of the government agency
involved in law enforcement and are receiving regular
compensation for the service they are rendering.
That petitioner's Mission Order and Memorandum Receipt were
fabricated pieces of evidence is accentuated all the more by the
testimony and certification of the Chief of the Records Branch of
the firearms and Explosives Office of the PNP declaring that
petitioner's confiscated firearms are not licensed or registered in
the name of the petitioner. 76 Thus:
Q. In all these files that you have just
mentioned Mr. Witness, what did you find,
if any?
A. I found that a certain Robin C. Padilla is
a licensed registered owner of one 9 mm
pistol, Smith and Wesson with Serial No.
TCT 8214 and the following firearms
being asked whether it is registered or not,
I did not find any records, the M-16 and
the caliber .357 and the caliber .380 but
there is a firearm with the same serial
number which is the same as that licensed
and/or registered in the name of one Albert
Villanueva Fallorina.
Q. So in short, the only licensed firearms
in the name of accused Robin C. Padilla is
a pistol, Smith and Wesson, caliber 9 mm
with Serial No. TCT 8214?
A. Yes, sir.
Q. And the firearms that were the subject
of this case are not listed in the names of
the accused in this case?
A. Yes, sir. 77
xxx xxx xxx
And the certification which provides as follows:
Republic of the Philippines
Department of the Interior and Local Government
GENERAL HEADQUARTERS PHILIPPINE
NATIONAL POLICE
FIREARMS AND EXPLOSIVES OFFICE
Camp Crame, Quezon City
PNFEO5 28 November 1992
CERTIFICATION
TO WHOM IT MAY CONCERN:
THIS IS TO CERTIFY that Robin C. Padilla of 59 Labo
St., Quezon City is a licensed/registered holder of Pistol
Smith and Wesson Cal 9mm with serial number TCT8214
covered by License No. RL M76C4476687.
Further certify that the following firearms are not
registered with this Office per verification from available
records on file this Office as of this date:
M16 Baby Armalite SN-RP131120
Revolver Cal 357 SN-3219
Pistol Cal 380 Pietro Beretta SN-35723
However, we have on file one Pistol Cal 380, Beretta with
serial number 35723Y, licensed/registered to one Albert
Villanueva Fallorina of 29 San Juan St., Capitol Pasig,
MM under Re-Registered License.
This certification is issued pursuant to Subpoena from
City of Angeles.
FOR THE CHIEF, FEO:
(
S
g
d
.
)
J
O
S
E
M
A

In several occasions, the Court has ruled that either the testimony of a
representative of, or a certification from, the PNP Firearms and
Explosives Office (FEO) attesting that a person is not a licensee of any
firearm would suffice to prove beyond reasonable doubt the second
element of illegal possession of firearm. 79 In People vs. Tobias, 80 we
reiterated that such certification is sufficient to show that a person has in
fact no license. From the foregoing discussion, the fact that petitioner
does not have the license or permit to possess was overwhelmingly
proven by the prosecution. The certification may even be dispensed with
in the light of the evidences 81 that an M-16 rifle and any short firearm
higher than a .38 caliber pistol, akin to the confiscated firearms, cannot
be licensed to a civilian, 82 as in the case of petitioner. The Court,
therefore, entertains no doubt in affirming petitioner's conviction
especially as we find no plausible reason, and none was presented, to
depart from the factual findings of both the trial court and respondent
court which, as a rule, are accorded by the Court with respect and
finality. 83
Anent his third defense, petitioner faults respondent court "in applying
P.D. 1866 in a democratic ambience (sic) and a non-subversive context"
and adds that respondent court should have applied instead the previous
laws on illegal possession of firearms since the reason for the penalty
imposed under P.D. 1866 no longer exists. 84 He stresses that the penalty
of 17 years and 4 months to 21 years for simple illegal possession of
firearm is cruel and excessive in contravention of the Constitution. 85
The contentions do not merit serious consideration. The trial court and
the respondent court are bound to apply the governing law at the time of
appellant's commission of the offense for it is a rule that laws are
repealed only by subsequent ones. 86 Indeed, it is the duty of judicial
officers to respect and apply the law as it stands. 87 And until its repeal,
respondent court can not be faulted
s for applying P.D. 1866 which
abrogated the previous statutes B adverted to by petitioner.
Equally lacking in merit is appellant's
r allegation that the penalty for
simple illegal possession is unconstitutional.
a The penalty for simple
possession of firearm, it shouldn be stressed, ranges from reclusion
temporal maximum to reclusion c perpetua contrary to appellant's
erroneous averment. The severityh of a penalty does not ipso facto make
the same cruel and excessive.
It takes more 7than merely being harsh, excessive, out of
proportion, or8 severe for a penalty to be obnoxious to the
Constitution. "The fact that the punishment authorized by
the statute is severe does not make it cruel and unusual."
(24 C.J.S., 1187-1188). Expressed in other terms, it has
been held that to come under the ban, the punishment
must be "flagrantly and plainly oppressive", "wholly
disproportionate to the nature of the offense as to shock
the moral sense of the community" 88
It is well-settled that as far as the constitutional prohibition goes,
it is not so much the extent as the nature of the punishment that
determines whether it is, or is not, cruel and unusual and that
sentences of imprisonment, though perceived to be harsh, are not
cruel or unusual if within statutory limits. 89
Moreover, every law has in its favor the presumption of constitutionality.
The burden of proving the invalidity of the statute in question lies with
the appellant which burden, we note, was not convincingly discharged.
To justify nullification of the law, there must be a clear and unequivocal
breach of the Constitution, not a doubtful and argumentative
implication, 90 as in this case. In fact, the constitutionality of P.D. 1866
has been upheld twice by this Court. 91 Just recently, the Court declared
that "the pertinent laws on illegal possession of firearms [are not]
contrary to any provision of the Constitution. . . " 92 Appellant's
grievances on the wisdom of the prescribed penalty should not be
addressed to us. Courts are not concerned with the wisdom, efficacy or
morality of laws. That question falls exclusively within the province of
Congress which enacts them and the Chief Executive who approves or
vetoes them. The only function of the courts, we reiterate, is to interpret
and apply the laws.
With respect to the penalty imposed by the trial court as affirmed by
respondent court (17 years 4 months and 1 day of reclusion temporal, as
minimum, to 21 years of reclusion perpetua, as maximum), we reduce
the same in line with the fairly recent case of People v. Lian 93 where the
Court en banc provided that the indeterminate penalty imposable for
simple illegal possession of firearm, without any mitigating or
aggravating circumstance, should be within the range of ten (10) years
and one (1) day to twelve years (12) of prision mayor, as minimum, to
eighteen (18) years, eight (8) months and one (1) day to twenty (20)
of reclusion temporal, as maximum. This is discernible from the
following explanation by the Court:
In the case at bar, no mitigating or aggravating
circumstances have been alleged or proved, In accordance
with the doctrine regarding special laws explained
in People v. Simon, 94 although Presidential Decree No.
1866 is a special law, the penalties therein were taken
from the Revised Penal Code, hence the rules in said
Code for graduating by degrees or determining the proper
period should be applied. Consequently, the penalty for
the offense of simple illegal possession of firearm is the
medium period of the complex penalty in said Section 1,
that is, 18 years, 8 months and 1 day to 20 years.
This penalty, being that which is to be actually imposed in
accordance with the rules therefor and not merely
imposable as a general prescription under the law, shall be
the maximum of the range of the indeterminate sentence.
The minimum thereof shall be taken, as aforesaid, from
any period of the penalty next lower in degree, which
is, prision mayor in its maximum period to reclusion
temporal in its medium
period. 95
WHEREFORE, premises considered, the decision of the Court of
Appeals sustaining petitioner's conviction by the lower court of the crime
of simple illegal possession of firearms and ammunitions is AFFIRMED
EXCEPT that petitioner's indeterminate penalty is MODIFIED to "ten
(10) years and one (1) day, as minimum, to eighteen (18) years, eight (8)
months and one (1) day, as maximum.
SO ORDERED.
Narvasa, C.J., Davide, Jr., Melo and Panganiban, JJ., concur.
Footnotes
1 Investigation Report dated October 26, 19922 of SPO1
Rene Jesus T. Gregorio of the Angeles City, Philippine
National Police (PNP), (RTC Records, Vol. 1, p. 9).
2 CODIFYING THE LAWS ON
ILLEGAL/UNLAWFUL POSSESSION,
MANUFACTURE, DEALING IN, ACQUISITION OR
DISPOSITION, OF FIREARMS, AMMUNITION OR
EXPLOSIVES OR INSTRUMENTS USED IN THE
MANUFACTURE OF FIREARMS, AMMUNITIONS
OR EXPLOSIVES; AND IMPOSING STIFFER
PENALTIES FOR CERTAIN VIOLATIONS THEREOF
AND FOR RELEVANT PURPOSES.
3 The Information was filed by Special Counsel Irin
Zenaida S. Buan and was docketed as Criminal Case No.
92-1083 of Branch 61 of the Angeles City R.T.C.
presided by Judge David R. Rosete.
4 RTC Records, Vol. I, p. 1.
5 The warrant of arrest dated December 8, 1992 was
issued by Judge Rosete. Later, an order recalling all
warrant of arrest against petitioner was issued by Judge
Maximiano Asuncion of RTC Quezon City. (RTC
Records, Vol. I, p. 34).
6 Petitioner posted a personal bail bond of P200,000.00
furnished by FGU Insurance Corporation (RTC Records,
Vol. I, p. 37).
7 Rule 116, Section 1(c) "If the accused refuses to plead,
or makes a conditional plea of guilty, a plea of not guilty
shall be entered for him."
8 Petitioner was assisted by his then lead counsel Dean
Antonio Coronel (appearance withdrawn April, 1993 to
serve his suspension by the Supreme Court, RTC
Records, Vol. I, p. 260) and Atty. Philip Jurado. The
prosecution was represented by Angeles City Prosecutor
Antonio G.P. Fausto and his Assistant, Rufino Antonio.
9 Order dated January 20, 1993, RTC Records, Vol. I, pp.
59 and 75.
10 RTC Records, Vol. I, p. 57.
11 RTC Decision, p. 6; Rollo, p. 48.
12 RTC Records, vol. II, p. 828.
13 The appeal was docketed as CA-G.R. No. CR-16040.
Atty. Jurado withdrew his appearance as petitioner's
counsel on October, 1994 when the appeal was pending
before the CA. His signature, however still appeared on
some pleadings for petitioner (CA Rollo, p. 429). Rene
A.V. Saguisag and Associates entered their appearance as
new counsel (CA Rollo, p. 58). Appellant's brief,
however, was also signed by his brother Robert A. Padilla
and Gina C. Garcia (CA Rollo, p. 146).
14 The 23-page CA (Special Tenth Division) decision
promulgated on July 21, 1995 was penned by Justice
Antonio P. Solano with Justices Ricardo P. Galvez and
Conchita Carpio-Morales, concurring. (Rollo, pp. 50-72).
15 CA Decision, p. 23; Rollo, p. 50.
16 Registry Return Receipt, attached to p. 343 of the
CA Rollo.
17 Registry Receipt stamped August 9,
1995. See CA Rollo, pp. 403-430.
18 CA Rollo, pp. 463-464.
19 The petition was signed by the Raval Suplico and
Lokin Law Office.
20 One supplemental petition was filed on October 9,
1995 signed by Padilla, Jurado and Saguisag. The other
supplemental petition was filed on October 11, 1995 and
signed by the Raval Suplico and Lokin Office.
21 Signed by Padilla, Jurado and Saguisag.
22 Solicitor-General's Comment on the application for
bail.
23 Padilla vs. CA and People, (Resolution), G.R. No.
121917, July 31, 1996.
24 Rollo, pp. 258, 282.
25 Rollo, pp. 312-339.
26 Counterstatement of Facts, Appellee's Brief filed with
the CA by the Solicitor-General (CA Rollo, pp. 230-240).
27 Consisting of about 4,000 pages.
28 Section 5, Rule 113 of the Revised Rules of Criminal
Procedure.
29 People v. Cuizon, G.R. No. 109287, April 18, 1996.
30 US v. Samonte, 16 Phil. 516, 519, citing 3 Cyc., 886;
Ramsey v. State, 17 S.E., 613; Dilger v. Com., 11 S. W.,
651; State v. McAfee, 12 S. E., 435; State v. Williams, 15
S.E., 554; and Hawkins v. Lutton, 70 N. W., 483.
31 TSN, February 13, 1993, Enrique Manarang, pp. 5-11.
32 This hit and run incident was the subject of a different
complaint against petitioner.
33 United States v. Gordils, 982 F2d 64, 69 (1992).
34 See People v. de Lara, 55 SCAD 190, 196, 236 SCRA
291, 297 (1994).
35 United States v. Lopez, 989 F2d 24, 26 (1993); United
Stares v. Ross, 456 U.S. 798, 806-7 (1982); Warden v.
Hayden, 387 U. S. 294, 298-9 (1967).
36 United States v. King, 990 F2d 1552, 1557 (1993);
United States v. Place, 462 U.S. 696, 702 (1983); Reid v.
Georgia, 448 U.S. 438, 440 (1980).
37 See People v. Fernandez, 57 SCAD 481 (1994);
Higbee v. City of SanDiego, 911 F2d 377, 379 (1990).
38 Eighty km/hr or higher. (TSN, Ibid, p. 3).
39 Exh. "B" and its sub-markings — Picture of the
vehicle driven by petitioner which showed the dangling
plate number and the damaged hood and railings.
40 See People v. Woolcock, 314 Phil. 81 (1995).
41 People v. Rivera, 315 Phil. 454; People v. de Guzman,
231 SCRA 737; People v. De Guia, 227 SCRA 614;
People v. Codilla, 224 SCRA 104 (1993); People v. de
Guzman, 224 SCRA 93 (1993); People v. Rabang, 187
SCRA 682 (1990);
42 People v. Lopez, 315 Phil. 59 citing De Asis v.
Romero, 41 SCRA 235 (1971); See also People v. Nitcha,
310 Phil. 287 (1995) citing People vs. Hubilo, 220 SCRA
389 (1993); People v. Samson, 244 SCRA 146; Sacarias
v. Cruz, 141 Phil. 417 (1969), citing (US v. Grant, 18 Phil
122, 147; Doce v. Branch II of the CFI of Quezon, 22
SCRA 1028, 1031, citing Carington v. Peterson, 4 Phil.
134 and US v. Grant, supra.
43 In Re Letter of Freddie Manuel, 54 SCAD 97, 99, 235
SCRA 5 (1994); People v. Dural, 42 SCAD 213, 223
SCRA 201 (1993); Palanca v. Querubin. 141 Phil. 432
(1969).
44 Mustang Lumber, Inc. v. CA, et. al., G.R. No. 104988,
June 18, 1996. The fifth being customs search.
45 Search incident to lawful arrest. — A person lawfully
arrested may be searched for dangerous weapons or
anything which may be used as proof of the commission
of an offense, without a search warrant.
46 People v. Salazar, G.R. No. 98060, January 27, 1997;
People v. Figueroa, 248 SCRA 679 (1995); People v.
Gerente, 219 SCRA 756; People v. Malmstedt, 198
SCRA 401; People v. Sucro, 195 SCRA 388; People v.
Tangliben, 184 SCRA 220; People v. Lo Ho Wing, 193
SCRA 122; People v. Paco, 170 SCRA 681; Manipon v.
Sandiganbayan, 143 SCRA 267.
47 Mapp v. Warden, 531 F2d 1167; United States v.
Griffin, 530 F2d 739; United States v. Hilstrom, 533 F2d
209, 429 U.S. 982, 97 S Ct 498, U.S v. Pacelli, 470 F2d
67, 415 U.S. 983, 93 S Ct 1501; Coolidge v. New
Hampshire, 403 U.S. 443, 91 S Ct 2022; Ker v.
California, 374 U.S 443, 465, 91 S Ct 2022, 2037-38;.
48 Harris v. US, 390 US 234; People v. Evaristo 216
SCRA 431.
49 People v. Balingan, 241 SCRA 277 (1995); People v.
Fernandez, supra, citing People v. CFI of Rizal, 101
SCRA 86 (1980); People v. Lo Ho Wing, 193 SCRA 122;
Roldan v. Arca, 65 SCRA 336.
50 United v. Rem, 984 F2d 806, 812 (1993); United
States v. Diaz-Lizaraza, supra, at p. 1220; United States
v. McCoy, 977 F2d 706, 710 (1992); United States v.
Rusher, 966 F2d 868, 874 (1992); United States v. Parker,
928 F2d 365-69 (1991).
51 Black's Law Dictionary, Revised Fourth
Edition, citing People v. Exum, 382 III, 204, 47 N.E. 2d
56, 59.
52 TSN, SPO Mercado, July 1, 1993, p. 5.
53 Concurring opinion of Justice Perfecto in Magoncia v.
Palacio, 80 Phil. 770, 776 cited in People v. Cruz, ibid, at
141 and People v. Acol, ibid.
54 People v. Evaristo, supra.
55 TSN, March 8, 1993, SPO Ruben Mercado, pp. 32-35.
56 In People v. Doro, 223 SCRA 19 the Court said that
the accused therein waived his right against the
warrantless search when he voluntarily opened the
package containing illegal drugs. See also People v.
Kagui Malasugui, 63 Phil. 221.
57 People v. Compil, 244 SCRA 135 (1944).
58 United States v. Saffeels, 982 F2d 1199, 1206 (1992);
Michigan v. Long, 463 U.S. 1032, 1034-5 (1983).
59 United States v. Diaz-Lizaraza, 981 F2d 1216, 1222
(1993); United States v. Franco, 981 F2d 470, 473 (1992);
New York V. Belton, 453 U.S. 454, 460-1 (1981).
60 United States v. $639,558.00 in United States
Currency, 955 F2d 712, 715-16 (1992); United States v.
Holifield, 956 F2d 665, 669 (1992); United States v.
Arango, 879 F2d 1501, 1505 (1989).
61 United States v. Tarazon, 989 F2d 1045, 1051 (1993).
62 Shipley v. California, 395 U.S. 818, 819 (1969).
63 People v. Barros, 231 SCRA 557, 566.
64 Exhibit "I" — Alleged Mission Order of Petitioner
contains the following:
Republic of the Philippines
Department of Interior and Local Government
Headquarters Philippine National Police
Lianga, Surigao, del Sur
29 Sept. 1992
Mission Order
Number 29-9-92-B
To: PSUPT GREGORIO DUREMBES
SO ROBIN C. PADILLA
-P O S T-
I. PROCEED TO: Camp Crame, NCR, Recom 1-12-
Baguio City
II. PURPOSE: To intensify Int'l coverage and to negotiate
the imdte. surrender of Father Frank Navarro (rebel
priest), believed attending conference in Baguio City.
(CPP/NPA)
III. DURATION: FROM: 29 Sept to 31 Oct 1992
IV. AUTHORIZE TO WEAR THE FOLLOWING N
UNIFORM/ATTIRE: P
(x) KHAKI ( ) HBT (X) CIVILIAN D
V. AUTHORIZED TO CARRY THE FOLLOWING e
FIREARMS: p
LIC OR MR MAKE KIND CAL SER NO AMMO u
LIC or MR issued Firearms & Ammos t
Nothing Follows y
RECOMMENDED BY: APPROVED BY: &
S S
g -
d 4
. 65 People vs. Solayao, G.R. No. 119220, September 20,
R 1996; People vs. Lualhati, 234 SCRA 325 (1994); People
O vs. Damaso, 212 SCRA 547 (1992).
D 66 Exh. "C" — 357 Smith and Wesson with bullets; Exh.
I "D" — M-16 armalite with magazine; Exh. "K" — M-16
A magazine; Exh. "L" — Pietro Berreta; Exh. "N" — 2 long
L magazines; Exh. "O" — 1 short magazine.
O 67 Decision of the Court of Appeals, pp. 18-19; Rollo pp.
A 67-68.
. 68 Exhibit "1"; Exhibit "Y".
G 69 TSN, Supt. Gregorio Durendes, February 10, 1994, p.
U 11.
M 70 Exhibit "I" for the Defense; Exhibit "U" (Rebuttal) for
T the Prosecution.
A 71 Issued by PNP Director-General Cesar Nazareno,
N March 21, 1991. Its pertinent provision states as follows:
G 3.a. Only Unit Commanders/Chiefs of Offices are
S authorized to issue Mission Orders to their respective
U personnel while in the official performance of duties.
P Such Mos shall be valid only within the area of
T responsibility (AOR) of the Unit Commander/Chief of
( Office concerned.
C c. MOs of PNP personnel performing mission outside
S AOR must be approved by next higher Headquarters.
P 72 Exhibit "I"
) 73 See Note 71, supra.
P
74 Ethel Ignacio, Chief of the Non-Uniform Personnel 90 Peralta v. COMELEC, 82 SCRA 30, 55.
Section of the PNP, testified that petitioner's name is not 91 Misolas v. Panga, 181 SCRA 648; Baylosis v. Chavez,
in the Plantilla of Personnel. Counsel for petitioner Jr. 202 SCRA 405.
admitted that the latter is "not in the plantilla." (Rollo, p. 92 People v. Morato, 224 SCRA 361, 367-368.
357; CA Decision, p. 14; TSN, Ethel Ignacio, July 25, 93 255 SCRA 532 (1996).
1994, pp. 4-6). 94 234 SCRA 555.
75 April 28, 1984 Amendments to the Rules and 95 People v. Jian, 255 SCRA 532, 542.
Regulations Implementing P.D. 1866 issued by the PC-
INP Chief and Director-General.
76 Sr. Inspector Jose Mario Espino, of the PNP
Headquarters in Camp Crame, Quezon City issued the
certification dated November 28, 1992 and December 11,
1992. (Exhibits "F'' and "G"; TSN March 4, 1993, Jose
Mario Espino, pp. 7, 9, 14-17).
77 TSN, Sr. Inspector Jose Mario Espino, March 4, 1993,
p. 14
78 Exhibit "F". In Exhibit "G", petitioner's alias,
"Robinhood C. Padilla," was checked and yielded the
same information found in Exhibit "F" quoted above.
79 Mallari vs. CA and People of the Philippines, G.R. No.
110569, December 9, 1996 citing People vs. Solayao,
G.R. No. 119220, September 20, 1996. Such and similar
certifications were declared adequate by the Court in
Rosales vs. CA, 255 SCRA 123 (1996), People vs.
Orehuela, 232 SCRA 82, 97 (1994).
80 G.R. No. 114185, January 30, 1997.
81 People vs. Mesal, 313 Phil. 888.
82 TSN, Jose Mario Espino, March 4, 1993, p. 20.
83 People vs. Cahindo, G.R. No. 121178, January 27,
1997; People vs. Bracamonte, G.R. No. 95939, June 17,
1996; People vs. Angeles, 315 Phil. 23; People vs.
Remoto, 314 Phil. 432.
84 Supplemental petition, pp. 1-3; Rollo, pp. 84-86.
85 Article III, Section 19(1), 1987 Constitution.
86 Article 7, Civil Code.
87 See: People v. Limaco, 88 Phil. 36; People v.
Venaracion, 249 SCRA 244.
88 People v. Estoista, 93 Phil. 647.
89 Baylosis v. Chavez, Jr., 202 SCRA 405, 417.
G.R. No. L-10126 October 22, 1957
SALUD VILLANUEVA VDA. DE BATACLAN and the minors
NORMA, LUZVIMINDA, ELENITA, OSCAR and ALFREDO
BATACLAN, represented by their Natural guardian, SALUD
VILLANUEVA VDA. DE BATACLAN, plaintiffs-appellants,
vs.
MARIANO MEDINA, defendant-appellant.
Lope E. Adriano, Emmanuel Andamo and Jose R. Francisco for
plaintiffs-appellants.
Fortunato Jose for defendant and appellant.
MONTEMAYOR, J.:
Shortly after midnight, on September 13, 1952 bus no. 30 of the Medina
Transportation, operated by its owner defendant Mariano Medina under a
certificate of public convenience, left the town of Amadeo, Cavite, on its
way to Pasay City, driven by its regular chauffeur, Conrado Saylon.
There were about eighteen passengers, including the driver and
conductor. Among the passengers were Juan Bataclan, seated beside and
to the right of the driver, Felipe Lara, sated to the right of Bataclan,
another passenger apparently from the Visayan Islands whom the
witnesses just called Visaya, apparently not knowing his name, seated in
the left side of the driver, and a woman named Natalia Villanueva, seated
just behind the four last mentioned. At about 2:00 o'clock that same
morning, while the bus was running within the jurisdiction of Imus,
Cavite, one of the front tires burst and the vehicle began to zig-zag until
it fell into a canal or ditch on the right side of the road and turned turtle.
Some of the passengers managed to leave the bus the best way they
could, others had to be helped or pulled out, while the three passengers
seated beside the driver, named Bataclan, Lara and the Visayan and the
woman behind them named Natalia Villanueva, could not get out of the
overturned bus. Some of the passengers, after they had clambered up to
the road, heard groans and moans from inside the bus, particularly,
shouts for help from Bataclan and Lara, who said they could not get out
of the bus. There is nothing in the evidence to show whether or not the
passengers already free from the wreck, including the driver and the
conductor, made any attempt to pull out or extricate and rescue the four
passengers trapped inside the vehicle, but calls or shouts for help were
made to the houses in the neighborhood. After half an hour, came about
ten men, one of them carrying a lighted torch made of bamboo with a
wick on one end, evidently fueled with petroleum. These men
presumably approach the overturned bus, and almost immediately, a
fierce fire started, burning and all but consuming the bus, including the
four passengers trapped inside it. It would appear that as the bus
overturned, gasoline began to leak and escape from the gasoline tank on
the side of the chassis, spreading over and permeating the body of the
bus and the ground under and around it, and that the lighted torch
brought by one of the men who answered the call for help set it on fire.
That same day, the charred bodies of the four deemed passengers inside
the bus were removed and duly identified that of Juan Bataclan. By
reason of his death, his widow, Salud Villanueva, in her name and in
behalf of her five minor children, brought the present suit to recover
from Mariano Medina compensatory, moral, and exemplary damages
and attorney's fees in the total amount of P87,150. After trial, the Court
of First Instance of Cavite awarded P1,000 to the plaintiffs plus P600 as
attorney's fee, plus P100, the value of the merchandise being carried by
Bataclan to Pasay City for sale and which was lost in the fire. The
plaintiffs and the defendants appealed the decision to the Court of
Appeals, but the latter endorsed the appeal to us because of the value
involved in the claim in the complaint.
Our new Civil Code amply provides for the responsibility of common
carrier to its passengers and their goods. For purposes of reference, we
are reproducing the pertinent codal provisions:
ART. 1733. Common carriers, from the nature of their business
and for reasons of public policy, are bound to observe
extraordinary diligence in the vigilance over the goods and for
the safety of the passengers transported by them, according to all
the circumstances of each case.
Such extraordinary diligence in the vigilance over the goods is
further expressed in articles 1734, 1735, and 1745, Nos. 5, 6, and
7, while the extra ordinary diligence for the safety of the
passengers is further set forth in articles 1755 and 1756.
ART. 1755. A common carrier is bound to carry the passengers
safely as far as human care and foresight can provide, using the
utmost diligence of very cautious persons, with a due regard for
all the circumstances.
ART. 1756. In case of death of or injuries to passengers, common
carriers are presumed to have been at fault or to have acted
negligently, unless they prove that they observed extraordinary
diligence as prescribed in articles 1733 and 1755
 ART. 1759. Common carriers are liable for the death of or
injuries to passengers through the negligence or willful acts of the
former's employees, although such employees may have acted
beyond the scope of their authority or in violation of the order of
the common carriers.
This liability of the common carriers does not cease upon proof
that they exercised all the diligence of a good father of a family in
the selection and supervision of their employees.
ART. 1763. A common carrier responsible for injuries suffered
by a passenger on account of the willful acts or negligence of
other passengers or of strangers, if the common carrier's
employees through the exercise of the diligence of a good father
of a family could have prevented or stopped the act or omission.
We agree with the trial court that the case involves a breach of contract
of transportation for hire, the Medina Transportation having undertaken
to carry Bataclan safely to his destination, Pasay City. We also agree
with the trial court that there was negligence on the part of the defendant,
through his agent, the driver Saylon. There is evidence to show that at
the time of the blow out, the bus was speeding, as testified to by one of
the passengers, and as shown by the fact that according to the testimony
of the witnesses, including that of the defense, from the point where one
of the front tires burst up to the canal where the bus overturned after zig-
zaging, there was a distance of about 150 meters. The chauffeur, after the
blow-out, must have applied the brakes in order to stop the bus, but
because of the velocity at which the bus must have been running, its
momentum carried it over a distance of 150 meters before it fell into the
canal and turned turtle.
There is no question that under the circumstances, the defendant carrier
is liable. The only question is to what degree. The trial court was of the
opinion that the proximate cause of the death of Bataclan was not the
overturning of the bus, but rather, the fire that burned the bus, including
himself and his co-passengers who were unable to leave it; that at the
time the fire started, Bataclan, though he must have suffered physical
injuries, perhaps serious, was still alive, and so damages were awarded,
not for his death, but for the physical injuries suffered by him. We
disagree. A satisfactory definition of proximate cause is found in
Volume 38, pages 695-696 of American jurisprudence, cited by
plaintiffs-appellants in their brief. It is as follows:
. . . 'that cause, which, in natural and continuous sequence,
unbroken by any efficient intervening cause, produces the injury,
and without which the result would not have occurred.' And more
comprehensively, 'the proximate legal cause is that acting first
and producing the injury, either immediately or by setting other
events in motion, all constituting a natural and continuous chain
of events, each having a close causal connection with its
immediate predecessor, the final event in the chain immediately
effecting the injury as a natural and probable result of the cause
which first acted, under such circumstances that the person
responsible for the first event should, as an ordinary prudent and
intelligent person, have reasonable ground to expect at the
moment of his act or default that an injury to some person might
probably result therefrom.
It may be that ordinarily, when a passenger bus overturns, and pins down
a passenger, merely causing him physical injuries, if through some event,
unexpected and extraordinary, the overturned bus is set on fire, say, by
lightning, or if some highwaymen after looting the vehicle sets it on fire,
and the passenger is burned to death, one might still contend that the
proximate cause of his death was the fire and not the overturning of the
vehicle. But in the present case under the circumstances obtaining in the
same, we do not hesitate to hold that the proximate cause was the
overturning of the bus, this for the reason that when the vehicle turned
not only on its side but completely on its back, the leaking of the
gasoline from the tank was not unnatural or unexpected; that the coming
of the men with a lighted torch was in response to the call for help, made
not only by the passengers, but most probably, by the driver and the
conductor themselves, and that because it was dark (about 2:30 in the
morning), the rescuers had to carry a light with them, and coming as they
did from a rural area where lanterns and flashlights were not available;
and what was more natural than that said rescuers should innocently
approach the vehicle to extend the aid and effect the rescue requested
from them. In other words, the coming of the men with a torch was to be
expected and was a natural sequence of the overturning of the bus, the
trapping of some of its passengers and the call for outside help. What is
more, the burning of the bus can also in part be attributed to the
negligence of the carrier, through is driver and its conductor. According
to the witness, the driver and the conductor were on the road walking
back and forth. They, or at least, the driver should and must have known
that in the position in which the overturned bus was, gasoline could and banking to support the complaint, either failed or appear or were
must have leaked from the gasoline tank and soaked the area in and reluctant to testify. But the record of the case before us shows the several
around the bus, this aside from the fact that gasoline when spilled, witnesses, passengers, in that bus, willingly and unhesitatingly testified
specially over a large area, can be smelt and directed even from a in court to the effect of the said driver was negligent. In the public
distance, and yet neither the driver nor the conductor would appear to interest the prosecution of said erring driver should be pursued, this, not
have cautioned or taken steps to warn the rescuers not to bring the only as a matter of justice, but for the promotion of the safety of
lighted torch too near the bus. Said negligence on the part of the agents passengers on public utility buses. Let a copy of this decision be
of the carrier come under the codal provisions above-reproduced, furnished the Department of Justice and the Provincial Fiscal of Cavite.
particularly, Articles 1733, 1759 and 1763. In view of the foregoing, with the modification that the damages
As regard the damages to which plaintiffs are entitled, considering the awarded by the trial court are increased from ONE THOUSAND
earning capacity of the deceased, as well as the other elements entering (P1,000) PESOS TO SIX THOUSAND (P6,000) PESOS, and from SIX
into a damage award, we are satisfied that the amount of SIX HUNDRED PESOS TO EIGHT HUNDRED (P800) PESOS, for the
THOUSAND (P6,000) PESOS would constitute satisfactory death of Bataclan and for the attorney's fees, respectively, the decision
compensation, this to include compensatory, moral, and other damages. appealed is from hereby affirmed, with costs.
We also believe that plaintiffs are entitled to attorney's fees, and Paras, C. J., Bengzon, Padilla, Reyes, A., Bautista Angelo, Labrador,
assessing the legal services rendered by plaintiffs' attorneys not only in Concepcion, Reyes, J. B. L., Endencia, and Felix, JJ., concur.
the trial court, but also in the course of the appeal, and not losing sight of
the able briefs prepared by them, the attorney's fees may well be fixed at
EIGHT HUNDRED (P800) PESOS for the loss of merchandise carried
by the deceased in the bus, is adequate and will not be disturbed.
There is one phase of this case which disturbs if it does not shock us.
According to the evidence, one of the passengers who, because of the
injuries suffered by her, was hospitalized, and while in the hospital, she
was visited by the defendant Mariano Medina, and in the course of his
visit, she overheard him speaking to one of his bus inspectors, telling
said inspector to have the tires of the bus changed immediately because
they were already old, and that as a matter of fact, he had been telling the
driver to change the said tires, but that the driver did not follow his
instructions. If this be true, it goes to prove that the driver had not been
diligent and had not taken the necessary precautions to insure the safety
of his passengers. Had he changed the tires, specially those in front, with
new ones, as he had been instructed to do, probably, despite his
speeding, as we have already stated, the blow out would not have
occurred. All in all, there is reason to believe that the driver operated and
drove his vehicle negligently, resulting in the death of four of his
passengers, physical injuries to others, and the complete loss and
destruction of their goods, and yet the criminal case against him, on
motion of the fiscal and with his consent, was provisionally dismissed,
because according to the fiscal, the witnesses on whose testimony he was
G.R. No. 138645 January 16, 2001.
PEOPLE OF THE PHILIPPINES,appelle,
vs.
WILBERT CABAREÑO, appellant.
PANGANIBAN, J.:
Treachery is appreciated when it is shown that an assailant deliberately
and consciously adopted a means of attack without risk to himself. In the
present case, it was not shown that the attack had been deliberately
adopted, or that it had entailed no risk to appellant.
The Case
Wilbert Cabareño appeals the November 23, 1998 "Judgement"1 of the
Regional Trial Court (RTC) of Iloilo City in Criminal Case No. 48852,
finding him guilty beyond reasonable doubt of murder sentencing him
to reclusion perpetua.
In an Information dated January 20, 1998, Second Asistant Provincial
Prosecutor Portia T. Cabalum charged appellant as follows:
"That on or about the 13th day of December, 1997, in the
Municipality of Lambunao, Province of Iloilo, Philippines, and
within the jurisdiction of this Honorable Court, the above-named
accused, armed with an unlicensed firearm, with deliberate intent
and decided purpose to kill and by means of treachery, did then
and there willfully, unlawfully and feloniously shoot Nerio
Casaquite with the firearm which the accused was then provided,
hitting the victim on the back portion of his body which caused
his death."2
Upon hi arraignment of February 27, 1998, 3 appellant, assisted by Atty.
Manuel Casumpang, pleaded not guilty. After trial in due course, the
court a quo rendered its Decision, the dispositive portion of which reads:
"WHEREFORE, premises considered, there being sufficient and
satisfactory proof shown to establish the guilt of the accused,
Wilbert Carabeño alias "Bebot", beyond reasonable doubt of the
crime of murder with which he stands charged, he is therefore
hereby sentenced to suffer the penalty of reclusion perpetua with
such accessory penalties as provided in Article 41 of the Revised
Penal Code and, moreover, to indemnity the family of the victim
[in] the amount of P50,000.00 as well as reimburse the family
[in] the amount of P89,000.00 for the expenses [for] the wake
and burial of the victim, and [to] pay the cost."4
The Facts
Version of the Prosecution
5
In its Brief, the Office of the Solicitor General presents the following
narration of facts:
"December 13, 1997, [was] the barangay fiesta of Jayobo,
Lambunao, Iloilo (TSN, April 24, 1998, p. 4). At around 9;00
[o]n the evening of the same day festivities, a disco was going on
near the house of Barangay Chairman Aurelio Catedrilla (Ibid.,
pp. 5-6). Suddenly, there was a commotion near the store that
was located a few arm's length away form the venue of the disco
(Ibid., p.7). It involved a certain Pestilo and the younger brother
of a certain Manolo (Ibid., pp.8-9). The younger brother of
Manolo splashed beer on Pestilo (Ibid.,p. 9.). Then, Aurelio
Catedrilla went to the place where the trouble was to pacify them
(Ibid., pp. 9-10). He was followed by Nerio Casaquite (Ibid).
When Aurelio Catedrilla reached the place, Wilbert Cabareño,
alias Bebot , shot him at the back with 10 inch long firearm
(Ibid., pp. 10 and 12). However, instead of the bullet hitting
Aurelio Cabareño was about two arm's length away from them
when he pulled the trigger (Ibid., p.11).1âwphi1.nêt
"Nerio Casaquite fell to the ground, while Wilbert Cabareño fled
the scene (Ibid., p.13). The Barangay tanod came to Nerio
Casaquite's aid and brought him to the hospital (Ibid.).
"However, Nerio Casaquite later succumbed to the gunshot
wound he sustained (Ibid., pp. 23-25)."6
Version of the Defense
Denying the charge against him, appellant narrates the facts in the
following manner:7
"On December 12 and 13, 1997, Barangay Jayobo, Lambunao,
Iloilo, was celebrating its Barangay Fiesta. As additional come
ons to liven the celebration, a disco dance was held every night
from December 12 and 13, 1997 near the house of the incumbent
[b]arangay [c]aptain, Aurelio Catedrilla.
On December 113, 1997 at about 9:00 o'clock in the evening,
while the disco dance was in progress, a certain Tayok Estiba and
Pablo Sanchez were having a drinking spree at the nearby store
about two (2) armslength [sic] from the "discohan". Probably as a
sign of having reconciled after their quarrel the night before
December 12, 1997, which was succesfully pacified by Nerio
Casaquite and Barangay Captain Aurelio Catedrilla. At that
particular time, accused-appellant while passing by the store
towards the 'discohan" was invited by Pablo Sanchez and Tayok
Estiva and [he] obliged himself to join in their drinking spree.
Thereafter, Pablo Sanchez and Tayok Estiva being drunk again
quarreled with each other. As before, Nerio Casaquite came to
pacify them[;] however, this time, the protagonists would not
listen to him. Consequently, he requested the [b]arangay [t]anod
present to fetch the [b]arangay [c]aptain, Aurelio Catedrilla to
help him in pacifying the quarelling Pablo Sanchez and Tayok
Estiva. A few minutes later, Barangay Captian Aurelio Catedrilla
arrived with his tanods and a militray man. Immediately, the said
military man hit Tayok Estiva with the butt of his armalite rifle,
forcing Barangay Captain Aurelio Catedrilla to admonish him not
to hurt Tayok Estiva being his grand nephew. In obedience, the
said military man now turned his ire against Pablo Sanchez. To
prevent the latter from being further hurt by the military man,
Nerio Casaquite now ushered Pablo Sanchez out of the store and
persuaded him to go home.
Meanwhile, Tayok Estiva, not yet fully assua[ged] of his anger
against Pablo Sanchez, was seen grappling with his uncle,
Barangay Captain Aurelio Catedrilla, for possession and control
of a 12 gauge shot gun inside the store and in the presence of
accused-appellant. White thus in that situation, the gun
accidentally fired[,] hitting Nerio Casaquite at his back causing
his death. Afterwards Barangay Captain Aurelio Catedrilla told
his grand nephew, Tayok Estiva, to leave the place. When he
finally left the scene of the accident, accused-appellant followed
and also went home.
The next morning, Barangay Captain Aurelio Catedrilla was
arrested at his house as the primary suspect in the shooting and
killing of Nerio Casaquite on the night of December 13, 1997.
Despite the said arrest of Barangay Captain Aurelio Catedrilla
being duly witnessed by his cousin, guest Absalon Lego,
however, the latter never told the arresting police authorities that
it was accused-appellant who actually shot Nerio Casaquite. It
was only 3 days later, and while Barangay Captain Aurelio was
already jailed, when Absalon Lego, who was fetched from his
house by the younger brother of the Barangay Captain,
conveniently executed a sworn statement inculpating accused-
appellant as the one who really shot Nerio Casaquite on the night
of December 13, 1997. As a result, accused-appellant, Wilbert
Carabeño was arrested on December 19, 1997. Despite his
protestation, however, the arresting police dismissed his claim of
innocence, without even giving him the benefit of the doubt, in
fairness and in the interest of law and justice [which] the police
were sworn to uphold and protect."
Ruling of the Trial Court
In its Decision, the trial court found the testimony of the prosecution
witness, Absalon Lego, to be "positive and straightforward, hence
persuasive and credible."8 Lego, who personally knew appellant,
positively identified him as the shooter. Moreover, the witness had a
good view of the incident because he was only a few meters away from
the locus criminis, which was well-lighted at the time.
The trial court also rejected appellant's claim that Tayok Estiva was the
killer. It held that this defense was improbable because the person in
front of Estiva was Aurelio Catedrilla, not the deceased. It also ruled that
the killing was qualified by treachery.
Hence, this appeal.9
Issues
In his Brief, appellant cites the following alleged errors:
"I
The lower court erred in finding the defense of accused-appellant that it
was Tayok Estiva who fired the gun that hit Nerio Casaquite, highly
improbable.
"II
The lower court likewise erred in finding the uncorroborated testimony
of prosecution witness, Absalon Lego, sufficient to prove the guilt of the
accused-appellant beyond reasonable doubt."10
In the main, appellant questions the credibility of the prosecution
eyewitness. The Court, in addition, will also determine the character of
the crime and the presence of treachery as a qualifying circumstance.
The Court's Ruling
The appeal is partly meritorious. Appellants should be convicted of
homicide, not murder.
Main Issue:
Credibility of Lone Eyewitness
The defense assails the credibility of the lone prosecution witness,
Absalon Lego, claiming that he was outside the store where the incident
occurred. Moreover, his attention was focused on the nearby disco, not Q How long [was] that gun which he used in shooting Nerio?
on the store, thus rendering his account highly improbable. Moreover, A Like this.
when he saw the police arrest Catedrilla, the former did not readily point xxxA xxx xxx
to appellant as the malefactor. It was only three days later that he came COURT:
forward, stating that he had seen what happened and that appellant had Q So, there was no exchange of words between Nerio and tha
fired the fatal shot. accused when the gun was fired?
Time and again, this Court has ruled that the evaluation of the credibility A No, there was none.
of witnesses is a matter that particularly falls within the authority of the Q And what happened to Nerio when you said he was shot?
trial court, as it had the opportunity to observe the demeanor of the A He fell to the ground.
witnesses on the stand. For this reason, appellate courts accord its factual Q Right there at all place where he was shot?
findings and assessments of witnesses with great weight and even A He was about to walk back first before he fell to the
finality, barring arbitrariness or oversight of some fact or circumstance of ground.
weight and substance.11 Q How far [was] that place where he fell [from] the place
In this case, the trial court, which had the opportunity to hear and where he was shot/
examine the testimony of the lone prosecution eyewitness, was A About one (1) arm's length."
convinced of his credibility. Eyewitness Lego narrated that he was only a xxx xxx xxx
few meters away from the incident and positively stated that it was PROS. GEDUSPAN:
appellant who had fired the shot that killed the victim: Q How about Wilbert Cabareño alias Bebot, what did he do
"Q Where [was] this Aurelio going followed by Nerio after shot Aurelio?
Casaquite? A He fled.
A He was intending to pacify the trouble. Q And what happened to Nerio Casaquite after he fell down?
Q Was he able to go where the trouble was? A The Barangay Tanods came to Nerio's aid.
A Yes, sir. Q Where did they bring Nerio Casaquite?
Q And when he reached the place what did Aurelio Catedrilla A To the hospital.
do? Q How about you, what did you do?
A He was shot by Bebot. A I also fled."12
Q When you said Bebot are you referring to the accused in Moreover, Lego had a clear view of the incident, which
this case Wilbert Carabeño? happened, in a sufficiently illuminated area.
A Yes, sir. "Q So, the place where the trouble ensued was two (2) arms
xxx xxx xxx length [sic] away from you/
Q When Bebot shot Aurelio who was hit? A Yes, sir.
A Nong Nerio Casaquite was hit. Q Was that place near the store or near the dance hall?
Q And what was Nerio Casquite doing when he was hit? A It was near the store and near the disco place.
A He had his back towards the accused also? Q What about the place where the commotion took place, was
COURT; that lighted?
Q How many times did the accused shoot Aurelio? A Lighted.
A One time. Q What kind of light?
Q What kind of weapon did he use? A It was lighted by an electric bulb.
A A 12 gauge gun. Q Where was that bulb placed in relation to the store?
 A It was inside the store."
Indeed, appellant has given us no sufficient reason to overturn the factual
findings of the trial court. Futile is his claim that Lego, whose attention
ought to have been focused on the disco instead, could not have
witnessed the shooting incident. First, Lego had a clear view of the store
because it was only a few meters away and was open on three sides,
having only one wall at the back. Second, it was natural for him to look
in that direction, because of the commotion that had occurred prior to the
actual shooting and the arrival of Catedrilla with three companions, one
of whom had a long firearm. In fact, Lego's attention would have been
focused on the store, because Catedrilla even hit one Pablo Sanchez with
the butt of a firearm.
That Lego reported to the authorities what he had seen only after a delay
of three days is of no moment. In People v. Lapay, 13 this Court ruled that
a witness' non-disclosure to police of crime is not entirely against human
experience. Delay in revealing the names of malefactors does not, by
itself, impair the credibility of prosecution witnesses and their
testimonies. 14 In this case, Lego readily admitted that he was afraid to
report to the authorities. His failure to specify the object of his fear 15 did
not make his testimony less credible.
Estiva Not the Shooter
Appellant further claims that it was Estiva who shot the victim and that
the RTC erred in rejecting this claim. Allegedly, the trial court merely
stated that said defense was highly improbable because it was not the
victim who should have been hit. Rather, it should have been Catedrilla,
being directly in front of Estiva who was allegedly grappling for
possession of the gun at the time.
It must be pointed out that the conviction of appellant was based
primarily on the testimony of Prosecution Witness Lego, who had
positively identified the former. The trial court, which had the
opportunity to observe the manner and demeanor of all the witnesses,
gave credence to Lego's testimony and rejected appellant's claim. Its
ruling on this point is clear and unassailable.
Crime and Punishment
Paragraph 1, Article 4 of the Revised Penal Code, provides:
" Art. 4 Criminal Liability.--- Criminal liability shall be incurred:
1. By any person committing a felony although the wrongful act
done be different from that which he intended."
In the present case, appellant is responsible for the death of Nerio
Casaquite, even if the former's intended target when he fired the gun was
supposedly Catedrillo. Criminal liability is incurred by any person
committing a felony, although the actual victim be different from the one
intended. 16 As held in US v. Diana 17 decided by the Court as early as
1915, "The same crime would have been committed if the injured man
and the deceased had been Dionisio Legara, instead of the defendant's
nephew, xxx; the crime of homicide would have been committed just the
same and one man would have been deprived of his life by the criminal
act of another."
Treachery
The trial court ruled that the killing was qualified by treachery.18 It failed
to explain, however, the basis of said ruling. Indeed, the proven facts do
not adequately establish the presence of this qualifying circumstance.
Treachery is present when the means, methods or form of execution
gives the person attacked no opportunity for self-defense or retaliation. It
must be proven that such means, method or form of execution is
deliberately and consciously adopted without danger to the accused.19
In this case, the prosecution proved that appellant fired at the back of the
victim. It was not able to show, however, that appellant had deliberately
adopted the attack, considering that it was executed during a commotion
and a s result of it. Moreover, it could not be said that the attack was
without risk to himself, because the victim was then in the company of
three other persons, all of whom were alert and one was even armed.
Indeed, the Court has held thus:20
"xxx. The qualifying circumstance of treachery can not logically
be appreciated because the accused did not make any preparation
to kill the deceased in such a manner as to insure the commission
of the crime or to make it impossible or hard for the person
attacked to defend himself or retaliate. This circumstance can
only be applied, according to the tenor of Article 13, Sub-section
16 of the Revised Penal Code, when the culprit employs means,
methods or forms of execution which tend directly and specially
to insure the commission of the crime and at the same time to
eliminate or diminish the risk to his own person from defense
which the other party might offer. IN United States vs. Namit, 38
Phil. 926, it was held that the circumstance that an attack was
sudden and unexpected to the person assaulted did not constitute
the element of alevosia necessary to raise a homicide to murder,
 11 People v. Perucho, 305 SCRA 770, 778, April 14, 1999; Cosep v. People, 290 SCRA 378 May
where it did not appear that the aggressor had consciously
21, 1998; People v. Meneses, 288 SCRA 95, March 26, 1998; People v. Lagao, 286 SCRA 610,
adopted a mode of attack intended to facilitate the perpetration of
February 27, 1998; People v. Gil, 284 SCRA 563, January 22, 1998.
the homicide without risk to himself."
12 TSN, April 24, 1998, pp. 7-13.
Well-settled is the rule that a qualifying circumstance must be
established as clearly as the elements of a crime. 21In this case, treachery 13 293 SCRA 62, 78, October 14, 1998.
14 See also People v. Castillo, 261 SCRA 493, September 6, 1996; People v. Rosario, 246 SCRA
was not proven beyond reasonable doubt. Absent any other qualifying
658, July 18, 1995; People v. Lacatan, 295 SCRA 203, September 7, 1998; People v. Pelen, 313
circumstance, appellant should therefore be convicted only of
homicide, 22 not murder. SCRA 683, September 3, 1999.
15 Refuting the assertion of the witness that he was afraid, appellant contends: "Of whom, to
Civil Liability
whom and why, he did not elaborate, making his excuse subject to real doubt and apprehension
We affirm the award of P50,000.00 as indemnity ex delicto, which is
from an impartial mind." Appellant's Brief, p.12; rollo, p. 45.
granted without need of proof other than the commission of a
crime. 23 Likewise, the trial court correctly awarded the sum of 16 People v. Flora et al., GR No. 125909, June 23, 2000.
17 32 Phil. 344, 348, November 29, 1915, per Torres, J.
P89,000.00 as actual damages, which we find to be supported by
18 RTC Decision, p. 6; rollo, p. 17.
evidence.1âwphi1.nêt
19 People v. Castillo, GR. No. 120282, April 20, 1998. See also People v. pallarco, GR No.
WHEREFORE, the appealed Decision is hereby MODIFIED. Appellant
119971, March 26, 1998; People v. Molina, GR Nos. 115835-36, July 22, 1998; People v.
is CONVICTED of homicide and SENTENCED to an indeterminate
Sabalones, GR No. 123485, August 31, 1998; People v. Cawaling, GR No. 117970, July 28, 1998
penalty of eight years and one day of prision mayor, as minimum, to
and People v. Sumalpong, 284 SCRA 464, January 20, 1998.
fourteen years, eight months and one day of reclusion temporal as
20 People v. Domingo Albao, GR No. 125332, march 2, 2000, per Gonzaga-Reyes, J.
maximum. The award of civil indemnities is AFFIRMED.
21 See People v. Gerry nalangan, GR No. 117218, March 20, 1997.
SO OREDERED
22 Article 249 of the Revised Penal Code provides that "any person who, not falling within the
Melo, Vitug, Gonzaga-Reyes, Sandoval-Gutierrez,JJ., concur
provisions of Article 246 shall kill another without the attendance of any of the circumstances
enumerated in the next preceding article, shall be deemed guilty of homicide and be punished
by reclusion temporal.'
Footnotes:
1 Written by Judge Bartolome M. Fanuñal. 23 See People v. Nilo Bautista et al., GR No. 131840, April 27, 2000; People v. Albao 287 SCRA
2 Information, p. 1; records, p. 2; rollo, p. 7. 129, March 6, 1998.
3 See Certificate of Arraignment; records, p. 18-A.
4 Assailed Decision, p. 6; rollo, p. 17; records, p. 72.
5 Appellee's Brief was assigned by Sol. Gen. Ricardo P. Galvez, Asst. Sol. Gen. Karl B. Miranda
and Sol. Roland C. Villaluz.
6 Appellee's Brief, pp. 2-3; rollo, pp. 73-74.
7 Appellant's Brief, pp. 3-6; rollo, pp. 36-39. This was signed by Attys. Arceli A. Rubin, Teresita
S. De Guzman and Nestor M. Herminda, all form the public Attorney's Office.
8 Assailed Decision, p. 5; rollo, p. 55.
9 This case was deemed submitted for resolution on November 24, 2000, upon receipt by this
Court of the Urgent Manifestation in Lieu of Reply Brief filed by appellant's counsel, waiving the
filling of a \reply brief.
10 Appellant's Brief, p. 1; rollo, p. 34. Upper case used in the original.
 G.R. No. 123485 August 31, 1998
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,
vs. ROLUSAPE SABALONES alias "Roling," ARTEMIO
TIMOTEO BERONGA, TEODULO ALEGARBES and EUFEMIO
CABANERO, accused, ROLUSAPE SABALONES alias "Roling"
and ARTEMIO TIMOTEO BERONGA, Accused-Appellants.
PANGANIBAN, J.:
Factual findings of trial courts which are affirmed by the Court of
Appeals are, as a general rule, binding and conclusive upon the Supreme
Court. Alibi, on the other hand, cannot prevail over positive
identification by credible witnesses. Furthermore, alleged violations of
constitutional rights during custodial investigation are relevant only
when the conviction of the accused by the trial court is based on the
evidence obtained during such investigation.
The Case
These are the principles relied upon by the Court in resolving this appeal
from the Court of Appeals (CA) 1 Decision 2 dated September 28, 1995,
convicting Rolusape Sabalones and Timoteo Beronga of murder and
frustrated murder. The convictions arose from a shooting incident on
June 1, 1985 in Talisay, Cebu, which resulted in the killing of two
persons and the wounding of three others, who were all riding in two
vehicles which were allegedly ambushed by appellants.
After conducting a preliminary investigation, Second Assistant
Provincial Prosecutor Juanito M. Gabiana Sr. filed before the Regional
Trial Court (RTC) of Cebu City, Branch 7, 3 five amended Informations
charging four "John Does," who were later identified as Rolusape
Sabalones, Artemio Timoteo Beronga, Teodulo Alegarbes and Eufemio
Cabanero, with two counts of murder and three counts of frustrated
murder. The Informations are quoted hereunder.
1) Crim Case No. CBU-9257 for murder:
That on the 1st day of June, 1985, at 11:45 o'clock in the evening, more
or less, at Mansueto Village, Bulacao, Municipality of Talisay, Province
of Cebu, Philippines, and within the jurisdiction of this Honorable Court,
the above-named accused, conspiring, confederating and mutually
helping one another, armed with high-powered firearms, with intent to
kill and treachery, did then and there wilfully, unlawfully and feloniously
attack, assault and shoot GLENN TIEMPO, who was riding [i]n a jeep
and who gave no provocation, thereby inflicting upon the latter several
gunshot wounds, thereby causing his instantaneous death.
CONTRARY TO Article 248 of the Revised Penal Code.
2) Criminal Case No. 9258 for murder:
That on the 1st day of June, 1985 at 11:45 o'clock in the evening, more
or less at Mansueto Village, Barangay Bulacao, Municipality of Talisay,
Province of Cebu, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, conspiring, confederating
and mutually helping one another, armed with high-powered firearms,
with intent to kill and treachery, did [then] and there wilfully, unlawfully
and feloniously attack, assault and shoot ALFREDO NARDO, who was
riding on a jeep and who gave no provocation, thereby inflicting upon
the latter several gunshot wounds, thereby causing his instantaneous
death.
CONTRARY TO Article 248 of the Revised Penal Code.
3) Crim Case No. CBU-9259 for frustrated murder:
That on the 1st day of June, 1985 at 11:45 o'clock in the evening, more
or less, at Mansueto Village, Barangay Bulacao, Municipality of Talisay,
Province of Cebu, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused conspiring, confederating
and mutually helping one another, armed with high-powered firearms,
with intent to kill and treachery, did and there wilfully, unlawfully and
feloniously attack, assault and shoot REY BOLO who was riding in a car
and who gave no provocation, thereby inflicting upon the latter the
following injuries to wit:
laceration, mouth due to gunshot wound, gunshot wound (L) shoulder
penetrating (L) chest; gunshot wound (R) hand (palm); open fracture (L)
clavicle (L) scapula; contusion (L) lung;
thereby performing all the acts of execution which would produce the
crime of [m]urder as a consequence but which, nevertheless, did not
produce it by reason of causes independent of the will of the
perpetrator, i.e. the timely medical attendance.
IN VIOLATION of Article 248 of the Revised Penal Code.
4) Criminal Case No. 9260 for frustrated murder:
That on the 1st day of June, 1985 at 11:45 o'clock in the evening, more
or less, at Mansueto Village, Barangay Bulacao, Municipality of Talisay,
Province of Cebu, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused conspiring, confederating
and mutually helping one another, armed with high-powered firearms,
with intent to kill and treachery, did then and there wilfully, unlawfully
and feloniously attack, assault and shoot ROGELIO PRESORES, who
was riding in a car and who gave no provocation, thereby inflicting upon
the latter the following injuries, to wit:
gunshot wound, thru and thru right chest
thereby performing all the acts of execution which would produce the
crime of [m]urder as a consequence but which, nevertheless, did not
produce it by reason of causes independent of the will of the
perpetrator, i.e. the timely medical attendance.
IN VIOLATION of Article 248 of the Revised Penal Code.
5) Criminal Case No. 9261 for frustrated murder:
That on the 1st day of June, 1985 at 11:45 o'clock in the evening, more
or less, at Mansueto Village, Barangay Bulacao, Municipality of Talisay,
Province of Cebu, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused conspiring, confederating
and mutually helping one another, armed with high-powered firearms,
with intent to kill and treachery, did then and there wilfully, unlawfully
and feloniously attack, assault and shoot NELSON TIEMPO, who was
riding in a car and who gave no provocation, thereby inflicting upon the
latter the following injuries, to wit:
Gunshot wound neck penetrating wound perforating trachea (cricoid)
thereby performing all the acts of execution which would produce the
crime of [m]urder as a consequence but which nevertheless, did not
produce it by reason of causes independent of the will of the
perpetrator, i.e. the timely medical attendance.
IN VIOLATION of Article 248 of the Revised Penal Code.
Of the four indictees in the five Informations, Teodulo Alegarbes and
Artemio Timoteo Beronga were the first to be arraigned. Upon the arrest
of the two, the Informations were amended by the public prosecutor,
with the conformity of the defense counsel, by substituting the names of
the two accused for the "John Does" appearing in the original
Informations. When arraigned, said accused, assisted by their respective
lawyers, pleaded not guilty to the five Informations.
Alegarbes died in the course of trial; thus, the cases against him were
dismissed. Accused Cabanero remained at large. Sabalones, on the other
hand, was eventually arrested. Subsequently, he jumped bail but was
recaptured in 1988 and thereafter pleaded not guilty during his
arraignment.
The cases against Sabalones and Beronga were jointly tried. Thereafter,
the lower court found them guilty beyond reasonable doubt of the crimes
charged. The RTC disposed as follows:
WHEREFORE, premises above-set forth, the Court finds accused
ROLUSAPE SABALONES and (ARTEMIO) TIMOTEO BERONGA,
[g]uilty beyond reasonable doubt, as principals:
In Crim. Case No. CBU-9257, for MURDER, defined and penalized in
Art. 248 of the Revised Penal Code, hereby sentences each said accused
to suffer the penalty of [f]ourteen (14) years, [e]ight (8) months and
[o]ne (1) day, as minimum, to [s]eventeen (17) years, [f]our (4) months
and [o]ne (1) day, of [r]eclusion [t]emporal, as maximum, to indemnify
the heirs of deceased, Glenn Tiempo, the sum of P50,000.00;
In Crim. Case No. CBU-9258, for MURDER, defined and penalized in
Art. 248 of the Revised Penal Code, hereby sentences each said accused
to suffer the penalty of [f]ourteen (14) years, [e]ight (8) months and
[o]ne (1) day, as minimum, to [s]eventeen (17) years, [f]our (4) months
and [o]ne (1) day, of [r]eclusion [t]emporal, as maximum, to indemnify
the heirs of deceased, Alfredo Nardo, the sum of P50,000.00;
In Crim. Case No. CBU-9259, for FRUSTRATED MURDER, defined
and penalized in Art. 248 in relation to Art. 50 of the Revised Penal
Code, hereby sentences each said accused to suffer the penalty of [e]ight
(8) years of prision mayor, as minimum, to [f]ourteen (14) years and
[e]ight (8) months of [re]clusion [t]emporal, as maximum, to indemnify
the victim, Rey Bolo, the sum of P20,000.00;
In Crim. Case No. CBU-9260, for FRUSTRATED MURDER, defined
and penalized in Art. 248 in relation to Art. 50 of the Revised Penal
Code, hereby sentences each said accused to suffer the penalty of [e]ight
(8) years of prision mayor, as minimum, to [f]ourteen (14) years and
[e]ight months of [r]eclusion [t]emporal, as maximum, to indemnify the
victim, Rogelio Presores, the sum of P20,000.00;
In Crim. Case No. CBU-9261, for FRUSTRATED MURDER, defined
and penalized in Art. 248 in relation to Art. 50 of the Revised Penal
Code, hereby sentences each said accused to suffer the penalty of [e]ight
(8) years of prision mayor, as minimum, to [f]ourteen (14) years and
[e]ight (8) months of [r]eclusion [t]emporal, as maximum, to indemnify
the victim, Nelson Tiempo, the sum of P20,000.00; and
To pay the costs in all instances. The period of their preventive
imprisonment shall be credited to each accused in full.
SO ORDERED. 4
Appellants filed a notice of appeal to the Court of Appeals. Thereafter,
the CA affirmed their conviction but sentenced them to reclusion
perpetua for the murders they were found guilty of. Accordingly, the
appellate court, without entering judgment, certified the case to the
Supreme Court in accordance with Section 13, Rule 124 of the Rules of
Court. The dispositive portion of the CA Decision reads:
WHEREFORE, the Decision of the trial court convicting accused-
appellants Rolusa[p]e Sabalones and Artemio Timoteo Beronga for
murder in Crim. Cases Nos. CBU-9257 and CBU-9258, and [f]rustrated
[m]urder in Crim. Cases Nos. CBU-9259, CBU-9260, and CBU-9261 is
hereby AFFIRMED; however, the penalties in the [f]rustrated [m]urder
and [m]urder cases are hereby MODIFIED, such that both accused-
appellants are each sentenced to imprisonment of TEN (10) YEARS
of [p]rision [m]ayor medium as minimum to SEVENTEEN (17)
YEARS and FOUR (4) MONTHS of [r]eclusion [t]emporal medium as
maximum in each of the three [f]rustrated [m]urder cases (Crim. Cases
Nos. CBU-9259, CBU-9260 and CBU-9261); and are each sentenced
to [r]eclusion [p]erpetua in each of the two [m]urder cases (Crim. Cases
Nos. CBU-9257 and CBU-9258). The indemnity to the victim in each
[f]rustrated [m]urder case shall remain. In conformity with Rule 124,
Section 13 of the Rules of Court, however, this Court refrains from
entering judgment, and hereby certifies the case and orders that the entire
record hereof be elevated to the Supreme Court for review. 5
After the Court of Appeals certified the case to this Court, we required
appellants to file supplemental briefs. Appellants failed to comply within
the prescribed period and were deemed to have waived their right to do
so. 6Thus, in resolving this case, this Court will address primarily the
arguments raised by the appellants in their Brief before the Court of
Appeals, which assailed the RTC Decision.
The Facts
Version of the Prosecution
The solicitor general 7 quoted the following factual findings of the trial
court:
Edwin Santos, a resident of Mambaling, Cebu City stated that on June 1,
1985 at 6:00 o'clock in the evening, he was at the residence of Inday
Presores, sister of Rogelio Presores, located at Rizal Ave., Cebu City to
attend a wedding. He stayed until 9:00 o'clock in the evening and
proceeded to the house of Maj. Tiempo at Basak, Mambaling, Cebu City
where a small gathering was also taking place. (pp. 3-6, tsn, April 7,
1987)
Arriving thereat, he saw Nelson and Glenn Tiempo as well as Rogelio
Presores, Rogelio Oliveros, Junior Villoria, Rey Bolo and Alfredo
Nardo. (p. 7, ibid.)
At about 11:00 o'clock in the evening, Stephen Lim, who was also at the
party, called their group and requested them to push his car. When the
engine started, the former asked them to drive his car home. (pp. 7-
11, ibid.)
Together with Nelson Tiempo, who was at the wheel, Rogelio Presores,
Rogelio Oliveros and Junior Villoria, they drove to the residence of
Stephen Lim at Mansueto Compound, Bulacao, Talisay, Cebu. (p.
12, ibid.)
Glenn Tiempo, Rey Bolo and Alfredo Nardo also went with them riding
in an owner-type jeep, driven by the latter, in order to bring back the
group [as] soon as the car of Mr. Lim was parked in his home. (p.
21, ibid.)
The two vehicles traveled in convoy with the jeep 3 to 4 meters ahead of
the car. When they arrived at the gate of the house of Stephen Lim, they
were met with a sudden burst of gunfire. He looked at the direction
where the gunfire came, and saw [the] persons [who] fired at the jeep. He
identified accused, Teodulo Alegarbes, Rolusape Sabalones and Timoteo
Beronga as the persons who fired at the vehicle. Except for Teodulo
Alegarbes, who was naked from [the] waist up, the gunmen wore
clothes. (pp. 21-23; 13-16; 33, ibid.)
After firing at the jeep, the assailants shot the ear they were riding[,]
hitting Nelson Tiempo on the throat and Rogelio Presores on the breast.
Despite the injury he sustained, Nelson Tiempo was able to maneuver
the car back to their residence. (pp. 17-19,ibid.)
He immediately informed Maj. Tiempo about the incident and the lat[t]er
brought the victims to the Cebu Doctor's Hospital. (p. 20, ibid.)
Rogelio Presores corroborated in substance the testimony of Edwin
Santos, being one of those who were in the car driven by Nelson Tiempo
to the residence of Stephen Lim. (pp. 4-6, tsn, Aug. 14, 1987)
He further testified that when the jeep driven by Alfredo Nardo with Rey
Bolo and Glenn Tiempo as passengers arrived at the front gate of Lim's
residence and while their car was 3 meters from the rear end of the jeep,
there was a volley of gunfire. He glanced at the direction of the gunfire
and saw the jeep being fired at by four persons, who were standing
behind a concrete wall, 42 inches in height, and armed with long
firearms. Thenceforth, he saw Alfredo Nardo, Glenn Tiempo and Rey
Bolo f[a]ll to the ground. (pp. 6-7, ibid.)
He recognized accused, Rolusape Sabalones, as one of those who fired at
the jeep. He also identified in Court accused, Teodulo Alegarbes,
Timoteo Beronga and another person, whom he recognized only through
his facial appearance. (pp. 7-8, ibid.)
When the shots were directed [at] their car[,] they were able to bend their
heads low. When the firing stopped, he directed Nelson Tiempo to back
out from the place. As the latter was maneuvering the car, the shooting
continued and he was hit in the breast while Nelson Tiempo, in the neck,
and the windshield of the vehicle was shattered. (p. 10, ibid.)
Arriving at the house of Maj. Tiempo, they were brought to Cebu
Doctor's Hospital. He and Nelson Tiempo were operated on. He had
incurred hospital expenses in the sum of P5,412.69, (Exh. "I", "K"). (pp.
11-12, ibid.)
Ladislao Diola, Jr., [m]edico-[l]egal [o]fficer of the PC Crime
Laboratory, Regional Unit 7 stationed at Camp Sotero Cabahug, Cebu
City remembered having performed a post-mortem examination on the
dead body of Glenn Tiempo on June 2, 1985 at the Cosmopolitan
Funeral Homes, Cebu City. (p. 7, tsn, Nov. 11, 1987)
He issued the necessary Death Certificate, (Exh. "D") and Necropsy
Report, (Exh. "F") and indicated therein that the victim's cause of death
was "[c]ardio respiratory arrest due to [s]hock and [h]emorrhage
[s]econdary to [g]unshot wounds to the trunk." (p. 8, ibid.)
The victim sustained gunshot wounds in the right chest and left lumbar
area. (pp. 10-11, ibid.)
He explained that in gunshot wound no. 1, the wound entrance[,] which
[was] characterized by invaginated edges and contusion collar[,] was
located in the right chest and the bullet went up to the left clavicle hitting
a bone which incompletely fractured it causing the navigation of the
bullet to the left and to the anterior side of the body. He recovered a slug,
(Exh. "G") below the muscles of the left clavicle. (p. 21, ibid.)
Based on the trajectory of the bullet, the assailant could have been [o]n
the right side of the victim or in front of the victim but [o]n a lower level
than the latter.
In both gunshot wounds, he did not find any powder burns which would
indicate that the muzzle of the gun was beyond a distance of 12 inches
from the target. (p. 15, ibid.)
At the time he conducted the autopsy, he noted that rigor mortis in its
early stage had already set in which denote[s] that death had occurred 5
to 6 hours earlier. (pp. 34-5, ibid.)
Maj. Juan Tiempo, father of the victims, Glenn and Nelson Tiempo,
testified that when he learned about the incident in question, he
immediately summoned military soldiers and together they proceeded to
the scene. (pp. 4-6, tsn, Nov. 12, 1988)
Arriving thereat, he saw the lifeless body of his son, Glenn. He
immediately carried him in his arms and rushed him to the hospital but
the victim was pronounced Dead on Arrival. (pp. 6-7, ibid.)
They buried his son, who was then barely 14 years old, at Cebu
Memorial Park and had incurred funeral expenses (Exhs. "K", "L", "O").
(pp. 7-8, ibid.)
His other son, Nelson, then 21 years old and a graduate of [m]edical
[t]echology, was admitted at the Cebu Doctor's Hospital for gunshot
wound in the neck. The latter survived but could hardly talk as a result of
the injuries he sustained. He had incurred medical and hospitalization
expenses in the sum of P21,594.22, (Exh. "H"), (pp. 8-10, ibid.)
He had also incurred expenses in connection with the hospitalization of
the injured victims, Rogelio Presores and Rey Bolo in the amount[s] of
P5,412.69, (exh. "I") and P9,431.10, (Exh. "J"), respectively. (p.
11, ibid.)
He further stated that he [was] familiar the accused, Roling Sabalones,
because the latter had a criminal record in their office in connection with
the kidnapping of a certain Zabate and Macaraya. (p. 16, ibid.)
xxx xxx xxx
Dr. Jesus P. Cerna, [m]edico-[l]egal [o]fficer of the PC/INP, Cebu
Metrodiscom, had conducted an autopsy on the dead body of Alfredo
Nardo, who sustained two (2) gunshot wounds in the lower lip and left
intraclavicular region, upon the request of the [c]hief of the Homicide
Section of Cebu Metrodiscom. He issued the victim's Necropsy Report,
(Exh. "F:") and Death Certificate, (Exh. "G"). (pp. 5-8, tsn, Dec. 4, 1987;
pp. 4-6, tsn, Nov. 29, 1988)
He stated that the wound of entrance in gunshot wound no. 1 was located
in the lower lip, more or less[,] on the left side making an exit in the left
mandibular region. (pp. 9-11, tsn, Dec. 4, 1987; pp. 6-8, tsn, Nov. 29,
1988)
In gunshot wound no. 2, the wound of entrance was in the left
intraclavicular region exiting at the back as reflected in the sketch, (Exh.
"F-2"). This wound was fatal and [could] almost cause an instantaneous
death considering that the bullet penetrated the thoracic cavity, lacerating
the lungs and perforating the heart before making an exit. (pp. 11-13, tsn,
Dec. 4, 1987; pp. 13-15, tsn, Nov. 29, 1988)
He found no tattooing around the wound of entrance in both gunshot
wounds. (pp. 8-9, tsn, Nov. 29, 1988)
He prepared and issued th[e] Necropsy Report, (Exh. "F") and Death
Certificate, (Exh. "G") of Alfredo Nardo who was identified to him by
the latter's daughter, Anita Nardo. (pp. 26-27, ibid.)
Rey Bolo, one of the victims, testified that when the jeep he was riding
[in] together with Glenn Tiempo and Alfredo Nardo, reached the gate of
the residence of Stephen Lim, they were suddenly fired upon. (pp. 5-8,
tsn, March 6, 1989)
He was hit in the right palm and left cheek. He jumped out of the vehicle
and ran towards the car which was behind them but he was again shot at
[,] [and hit] in the left scapular region. He was still able to reach the road
despite the injuries he sustained and tried to ask help from the people
who were in the vicinity but nobody dared to help him, [they] simply
disappeared from the scene, instead: (pp. 8-9, ibid.)
He took a passenger jeepney to the city and had himself treated at the
Cebu Doctor's Hospital, and incurred medical expenses in the sum of
P9,000.00. (p. 9, ibid.)
He was issued a Medical Certificate, (Exh. "N") by his attending
physician.
Dr. Miguel Mancao, a [p]hysician-[s]urgeon, recalled having attended
[to] the victims, Nelson Tiempo, Rey Bolo and Rogelio Presores at the
Cebu Doctor's Hospital on June 2, 1985. (pp. 7-8, 11, 14, tsn, May 30,
1989)
Nelson Tiempo sustained gunshot wound[s] in the neck and in the right
chest but the bullet did not penetrate the chest cavity but only the left
axilla. He was not able to recover any slugs because the same
disintegrated while the other was thru and thru. The wound could have
proved fatal but the victim miraculously survived. As a consequence of
the injury he sustained, Nelson Tiempo permanently lost his voice
because his trachea was shattered. His only chance of recovery is by
coaching and speech therapy. He issued his Medical Certificate. (Exh.
"O"). (pp. 8-11, ibid.)
With regard to the patient, Rey Bolo, the latter suffered multiple gunshot
wounds in the left shoulder penetrating the chest and fracturing the 2nd,
3rd, and 4th ribs in the process, in the right hand fracturing the proximal
right thumb and in the mouth lacerating its soft tissues, per Medical
Certificate, (Exh. "N") which he issued. (pp. 11-16, ibid.)
Based on the trajectory of the bullet, the gunman could have been in
front of the victim, when gunshot would no. 1 was inflicted. (p. 30, ibid.)
With respect to the patient, Rogelio Presores, the latter suffered [a]
gunshot wound in the chest with the wound of entrance in the right
anterior chest exiting at the back which was slightly lower than the
wound of entrance. He issued the victim's Medical Certificate, (Exh.
"M"). (pp. 34-35, ibid.)
Based on the location of the wound, the gunman could have been in front
of the victim but [o]n a slightly higher elevation than the latter. (pp. 35-
36, ibid.) 8
Version of the Defense
Appellants interposed denial and alibi. Their version of the facts is
summarized by the trial court 9 thus:
. . . Timoteo Beronga, a cristo or bet caller in the cockpit, testified that in
the afternoon of June 1, 1985, he was in the Talisay Sports Complex
located at Tabunok, Talisay, Cebu to attend a cock-derby.
At about 7:00 o'clock in the evening, he was fetched by his wife and they
left taking a taxicab going to their residence in Lapulapu City. After
passing by the market place, they took a tricycle and arrived home at
8:00 o'clock in the evening.
After taking his supper with his family, he went home to sleep at 10:30
in the evening. The following morning, after preparing breakfast, he
went back to sleep until 11:00 in the morning.
On February 24, 1987, while he was playing mahjong at the corner of
R.R. Landon and D. Jakosalem Sts., Cebu City, complainant, Maj. Juan
Tiempo with some companions, arrived and after knowing that he [was]
"Timmy," [which was] his nickname, the former immediately held him
by the neck.
He ran away but the latter chased him and kicked the door of the house
where he hid. He was able to escape through the back door and took
refuge in Mandaue at the residence of Nito Seno, a driver of Gen. Emilio
Narcissi. (Tsn-Abangan, pp. 4-17, October 19, 1989)
On February 27, 1987, upon the advi[c]e of his friend, they approached
Gen. Narcissi and informed him of the incident. The latter brought him
to the Provincial Command Headquarters in Lahug, Cebu City to
confront Maj. Juan Tiempo.
After several days, he was brought by Maj. Tiempo to the PC
Headquarter[s] in Jones Ave., Cebu City where he was providedwith a
lawyer to defend him but he was instructed that he should assent to
whatever his lawyer would ask of him.
He was introduced to Atty. Marcelo Guinto, his lawyer, who made him
sign an Affidavit, (Exh. "U") the contents of which, co[u]ched in the
dialect, were read to him.
He also testified that before he was detained at the CPDRC, complainant
brought him inside the shop of a certain Den Ong, where he was again
mauled after he denied having any knowledge of the whereabouts of
Roling Sabalones and the carbine.
At the instance of Col. Medija, he was physically examined at the
Southern Islands Hospital, Cebu City and was issued a [M]edical
Certificate. (Tsn-Formentera, pp. 3-36, Jan. 18, 1990).
Justiniano Cuizon, [a]ccount [o]fficer of the Visayan Electric Company
(VECO) South Extension Office, who is in charge of the billing,
disconnection and reconnection of electric current, testified that based on
the entries in their logbook, (Exh. "3") made by their checker, Remigio
Villaver, the electrical supply at the Mansueto Compound, Bulacao,
Talisay, Cebu, particularly the Mansueto Homeowners covered by
Account No. 465-293000-0, (Exh. "4-B") was disconnected on January
10, 1985, (Exh. "3-A") for non-payment of electric bills from March
1984 to January 1985 and was reconnected only on June 17, 1985 (Exh.
"4", "4-A"). (Tsn-Abangan, pp. 22-27, Jan. 31, 1990).
Remigio Villaver, a checker of VECO, whose area of responsibility
cover[ed] the towns of Talisay and San Fernando, Cebu had kept the
record of disconnection of electrical supply of Mansueto Subdivision in
Bulacao, Talisay, Cebu and the same showed that on January 10, 1985,
(Exh. "3-A"), a service order was issued by their office to the Mansueto
Homeowners for the permanent disconnection of their electric lights due
to non-payment of their electric bills from March 1984 until January
1985. The actual disconnection took place on December 29, 1984.
Witness Fredo Canete made efforts to corroborate their testimony. (Tsn-
Formentera, pp. 3-5, Apr. 20, 1990).
Vicente Cabanero, a resident of Mansueto Compound in Talisay, Cebu
since 1957 until the present, remembered that on June 1, 1985, between
10:00 o'clock and 11:00 o'clock in the evening, he heard a burst of
gunfire about 15 to 20 armslength [sic] from his residence.
He did not bother to verify because he was scared since the whole place
was in total darkness. (Tsn-Abangan, pp. 18-23, Feb. 22, 1990).
Marilyn Boc, another witness for the accused, stated that on the date and
time of the incident in question, while she was at the wake of Junior
Sabalones, younger brother of Roling Sabalones, who died on May 26,
1985, a sudden burst of gunfire occurred more or less 60 meters away.
Frightened, she went inside a room to hide and saw accused, Roling
Sabalones, sound asleep.
She came to know accused, Timoteo Beronga, only during one of the
hearings of this case and during the entire period that the body of the late
Junior Sabalones [lay] in state at his residence, she never saw said
accused.
She was requested to testify in this case by Thelma Beronga, wife of
Timoteo Beronga. (Tsn-Abangan, pp. 9-13, February 28, 1990).
Dr. Daniel Medina, while then the [r]esident [p]hysician of Southern
Islands Hospital, Cebu City had treated the patient, Timoteo Beronga on
March 18, 1987.
Upon examination, he found out that the patient sustained linear
abrasion, linear laceration and hematoma in the different parts of the
body. Except for the linear laceration which he believed to have been
inflicted two or three days prior to [the] date of examination, all the other
injuries were already healed indicating that the same were inflicted 10 to
12 days earlier.
He issued the corresponding Medical Certificate (Exh. "2") to the
patient. (Tsn-Abangan, pp. 9-13, May 21, 1990).
Atty. Jesus Pono, counsel for accused Beronga, mounted the witness
stand and averred that he [was] a resident of Mansueto Compound,
Bulacao, Talisay, Cebu. As shown in the pictures, (Exhs. "3", "4" & "5"
with submarkings) his house is enclosed by a concrete fence about 5 feet
6 inches tall. It is situated 6 meters from the residence of accused, Roling
Sabalones, which was then being rented by Stephen Lim. Outside the
fence [are] shrubs and at the left side is a lamp post provided with 200
watts fluorescent bulb.
On June 1, 1985 at about 7:00 o'clock in the evening, he saw Roling
Sabalones, whom he personally [knew] because they used to be
neighbors in Talisay, Cebu, at the wake of his brother, Federico
Sabalones, Jr. or Junior Sabalones, as mentioned repeatedly hereabout.
They even had a talk and he noticed accused to be physically indisposed
being gravely affected by the loss of his only brother, who met a violent
death in the hands of an unknown hitman on May 26,1985.
He went home after he saw accused [lie] down on a bamboo bench to
rest.
At about 12:00 o'clock midnight, he was awakened by a rapid burst of
gunfire which emanated near his house. He did not attempt to go down
or look outside. He [was] in no position to tell whether or not the street
light was lighted.
When he verified the following morning, he noticed bloodstains on the
ground as well as inside the jeep which was parked 2 to 3 meters from
his fence and 50 to 70 meters from the house where Junior Sabalones
[lay] in state. He observed that the jeep was riddled with bullets and its
windshield shattered. (Tsn-Abangan, pp. 3-16, June 6, 1990).
He admitted that he used to be a counsel of accused, Roling Sabalones,
in several cases, among which involved the death of a certain Garces and
Macaraya, which cases were however, dismissed by the Office of the
Provincial Fiscal of Cebu. (Tsn-Tumarao, pp. 2-3, June 13, 1990).
Doroteo Ejares, a relative of accused, testified that when he attended the
wake of Junior Sabalones on June 1, 1985 at 8:00 o'clock in the evening,
he saw accused lying on a bamboo bench in the yard of the house of the
deceased.
At past 10:00 o'clock in the evening, accused excused himself as he was
not feeling well and entered a room to rest while he remained by the door
and slept.
At almost 12:00 o'clock midnight, he was awakened by a burst of gunfire
which took place more or less 20 meters away and saw the people
scamper[ing] for safety. He hid inside the room where accused was
sleeping and peeped thru the door. Not long after, Marilyn Boc entered
and in a low voice talked about the incident.
They decided to wake up the accused to inform him of what was
happening, but the latter merely opened his eyes and realizing that
accused was too weak, they allowed him to go back to sleep.
When he went home at past 5:00 o'clock in the morning of June 2, 1985,
he saw a jeep outside of the compound. He did not bother to investigate
or inquire about the incident as he was in a hurry to go home and prepare
for the burial of Junior Sabalones.
He was requested to testify in this case by his aunt and mother of
accused Rolusape Sabalones. (Tsn-Tumarao, pp. 10-15, June 13, 1990).
Russo Sabalones, uncle of accused, Sabalones, averred that the latter was
once, one of his undercover agents while he was then the [c]hief of the
Intelligence Service of the PC from 1966 until 1968.
As part of their intelligence tradition, an undercover agent is not allowed
to carry his real name. In the case of his nephew and accused, Rolusape
Sabalones, the latter chose the name "Paciano Laput" which name was
recorded in their code of names.
When he retired in 1968, the accused ceased to be an agent and . . .
likewise ceased to have the authority to use the name Paciano Laput.
(Tsn-Abangan, p. 12, July 23, 1990).
Alfonso Allere, a distant relative of the accused, remembered having
received a call from Roling Sabalones, one morning after the burial of
the latter's brother, asking for his advise because of the threats [to] his
life which he received thru telephone from the group of Nabing Velez
and the group of the military.
After he had advised accused to lie low, he had not heard of him, since
then.
Godofredo Mainegro of the Public Assistance and Complaint Action
Office of the Regional Unified Command 7, received a complaint from
one Inocencia Sabalones on March 13, 1986.
He recorded the complaint in their Complaint Sheet, (Exh. "6") and let
complainant affix her signature.
After the document was subscribed and sworn to before him, (Exh. "6-
C"), he indorsed it to their [c]ommanding [o]fficer, Apolinario Castano.
(Tsn-Formentera, pp. 3-10, July 24, 1990).
Ret. Col. Apolinario Castano, recalled that while he was then with the
Regional Unified Command 7, his niece, Racquel Sabalones together
with her husband Roling Sabalones, came to him for advi[c]e because
the latter was afraid of his life brought about by the rampant killings of
which his brother and the son of Maj. Tiempo were victims.
Considering that accused's problem matter, they approached Gen.
Ecarma, the then [c]ommander of the PC/INP, Recom 7, and the latter
referred them to his [c]hief of [s]taff, Col. Roger Denia, who informed
them that there was no case filed against the accused. Nevertheless, the
latter was advised to be careful and consult a lawyer.
Inocencia Sabalones, mother of accused, Roling Sabalones, narrated that
on March 12, 1986 at past 10:00 o'clock in the evening, she was roused
from sleep by a shout of a man demanding for Roling Sabalones.
Upon hearing the name of her son, she immediately stood up and peeped
through the door of her store and saw men in fatigue uniforms carrying
long firearms. Thenceforth, these men boarded a vehicle and left.
On the following morning, she was again awakened by the persistent
shouts and pushing of the gate. When she verified, the man who
introduced himself to her as Maj. Tiempo, ordered her to open the gate.
Once opened, the men of Maj. Tiempo entered the house and proceeded
to search for Roling Sabalones, whom Maj. Tiempo suspected to have
killed his son and shot another to near death. When she demanded for a
search warrant, she was only shown a piece of paper but was not given
the chance to read its contents.
Racquel Sabalones, wife of accused, Rolusape Sabalones, maintained
that on June 1, 1985 at 1.00 o'clock in the afternoon, she was at the wake
of her brother-in-law, Junior Sabalones, at his residence in Bulacao,
Talisay, Cebu.
At 11:00 o'clock in the evening of the same day, together with her 3
daughters as well as Marlyn Sabarita, Rose Lapasaran and Gloria
Mondejar, left the place in order to sleep in an unoccupied apartment
situated 30 meters away from the house where her deceased, brother-in-
law, Junior, was lying in state, as shown in the Sketch, (Exh. "7" and
submarkings) prepared by her. They brought with them a flashlight
because the whole place was in total darkness.
As they were about to enter the gate leading to her apartment she noticed
a sedan car coming towards them. She waited for the car to come nearer
as she thought that the same belong[ed] to her friend, but the vehicle
instead stopped at the corner of the road, (Exh. "7-F") and then
proceeded to the end portion of Mansueto Compound, (Exh. "7-G"). As
it moved slowly towards the highway, she rushed inside the apartment.
Few minutes later, she heard a burst of gunfire outside their gate. She
immediately gathered her children and instructed Marlyn Sabarita to use
the phone situated at the third door apartment and call the police.
After the lull of gunfire, she went to the terrace and saw people in
civilian and in fatigue uniforms with firearms, gathered around the place.
One of these men even asked her about the whereabouts of her husband,
whom she left sleeping in the house of the deceased.
At 8:30 in the morning of June 2, 1985, during the burial of Junior
Sabalones, they were informed by Pedro Cabanero that Roling Sabalones
was a suspect for the death of Nabing Velez and the son of Maj. Tiempo.
She believed that the reason why her husband was implicated in the
killing of Nabing Velez was because of the slapping incident involving
her father-in-law, Federico Sabalones, Sr. and Nabing Velez which took
place prior to the death of Junior Sabalones.
After the funeral, she began to receive mysterious calls at their residence
in Sikatuna St., Cebu City where they began staying since 1978. She also
noticed cars with tinted windows strangely parked in front of their
residence.
Frightened and cowed, they decided to seek the advice of Col.
Apolinario Castano, who after relating to him their fears, advised her
husband to lie low and to consult a lawyer.
To allay their apprehension, accused, Roling Sabalones, left Cebu City
for Iligan, Manila and other cities to avoid those who were after him.
When she learned about the threat made by Maj. Tiempo on her husband,
she forewarned the latter not to return to Cebu.
Marlyn Sabarita, an illegitimate daughter of Rolusape Sabalones, stated
that in the night in question, she was at the wake of Junior Sabalones and
saw her Papa Roling, the herein accused, lying on the lawn of the house
of the deceased.
She was already in the apartment with her Mama Racquel when she
heard a burst of gunfire. Upon instructions of the latter, she went out to
call the police thru the phone located [in] the third apartment occupied
by a certain Jet. (Tsn-Tumarao, pp. 3-15, Oct. 15, 1990).
Edward Gutang, [a]sst. lay-out [e]ditor and [a]sst. [s]ports [e]ditor of
Sun-Star Daily, while then a military and police reporter had covered the
shooting incident which took place on June 1, 1985 at the Mansueto
Compound, Bulacao, Talisay, Cebu.
At past 1:00 o'clock dawn, together with their newspaper photographer,
Almario Bitang, they went to the crime scene boarding the vehicle of the
Cosmopolitan Funeral Homes. Arriving thereat, they decided not to
proceed inside the compound because of fear. The place was then
incomplete darkness.
Upon being informed that the victims were brought to Cebu City
Medical Center, they rushed to the place and met Maj. Tiempo hugging
the dead body of his 14-year old son. His photographer took a picture of
that pathetic scene. (Exh. "8-B").
Samson Sabalones, a retired [a]mbassador and uncle of Rolusape
Sabalones, posted a bail bond for his nephew with Eastern Insurance
Company, when a warrant for his arrest was issued by the Municipal
Court, on March 12, 1986 because he was bothered by the fact that the
latter was being unreasonably hunted by several groups. He even advised
the accused to appear in [c]ourt to clarify the nature of the case filed
against him.
Virgincita Pajigal, a resident of Butuan City, met accused, Rolusape
Sabalones, who introduced himself to her as "Paciano Laput" nicknamed,
Ondo, in a massage clinic where she was working.
For less than a year, they lived together as husband and wife without the
benefit of marriage because according to her the accused was married but
separated from his wife, whose name was never mentioned to her. For
such a short span of time being together, her love for the accused
developed to the extent that whatever happen[ed] to him, she [would]
always be there to defend him.
With the help of Maj. delos Santos, who advised her to always stay close
[to] the accused, she was able to board the same vessel. She saw the
latter clad in green T-shirt, (Exh. "14") and pants, handcuffed and
guarded.
Reaching Cebu City, they took a taxicab and as the vehicle went around
the city, she was instructed by Maj. Tiempo to place the towel, (Exh.
"15") which she found inside her bag, on the head of the accused. They
stopped at the Reclamation Area and Maj. Tiempo pulled them out of the
vehicle but she held on tightly to Ondo, ripping his shirt. This pulling
incident happened for several times but complainant failed to let them
out of the vehicle.
The accused was finally brought to the Provincial Jail while she stayed in
the residence of the accused. She returned to Butuan after a week. (Tsn-
Formentera, pp. 5-33, Jan. 22, 1991).
Accused, Rolusape Sabalones, alias "Roling", in his defense, with
ancillary incidental narrations, testified, that on June 1, 1985 at 6:00
o'clock in the evening, he was at the wake of his only brother, Junior
Sabalones, who was killed on May 26, 1985.
He had no idea as to who was responsible for the killing of his brother
inasmuch as the latter had plenty of enemies. He also did not exert effort
to look into the case and to place it under police authority since he had
lost faith in the capabilities of the police. The matter was however
reported by his uncle, Ambassador Sabalones, to the authorities.
He stayed at the wake until 10:00 o'clock in the evening because he was
not feeling well. He retired in a small room adjacent to the sala of the
house of the deceased. Not long after, he felt somebody waking him up
but he merely opened his eyes and went back to sleep as he was really
exhausted.
At 6:30 the following morning, he was roused by his wife so he could
prepare for the burial. He came to know about the burst of gunfire which
took place the previous night upon the information of his wife. He did
not take the news seriously as he was busy preparing for the burial of his
deceased brother, Jun.
The funeral started at past 8:00 o'clock in the morning and he noticed the
presence of Maj. Eddie Ricardo and his men, who were sent by Col.
Castano purposely to provide the burial with military security, upon the
request of his wife.
He had a conversation with Maj. Ricardo who inquired about the
shooting incident which resulted in the death of the son of Maj. Tiempo
and others in his company. Also in the course of their conversation, he
came to know that Nabing Velez was killed earlier on that same night in
Labangon, Cebu [C]ity.
On the same occasion, Pedro Cabanero also notified him that he was a
suspect in the killing of Nabing Velez, a radio commentator of ferocious
character, who was engaged in a protection racket with several under his
control.
He remembered that a month prior to the death of Nabing Velez, his
father, Federico Sabalones, Sr. and the deceased while matching their
fighting cocks at the Talisay Sports Complex, had an altercation and the
latter slapped his paralytic father and challenged him to ask one of his
sons to avenge what he had done to him. He came to know about the
incident only after a week.
He did not deny the fact that he was hurt by the actuation of the deceased
for humiliating his father but it did not occur to him to file a case or take
any action against the deceased because he was too busy with his
business and with his work as a bet caller in the cockpit.
He advised his father to stay in Bohol to avoid further trouble because he
knew that the latter would frequent the cockpit[,] being a cockfight
aficionado.
Likewise, during the burial, he was informed by a PC soldier, Roger
Capuyan, that he was also a suspect in the killing of the son of Maj.
Tiempo and even advised him to leave the place.
On the following days after the burial, his wife started to notice cars
suspiciously parked in front of their house and [she] also received
mysterious calls.
Together with his wife, they decided to see Col. Apolinario Castaño to
seek his advise. The latter verified from the Cebu Metrodiscom and
learned that there was no case filed against him.
In the evening of June 6, 1985, he left for Iligan and after a month, he
transferred to Ozamis and ten to Pagadian. He likewise went to Manila
especially when he learned that his uncle, Samson Sabalones, had arrived
from abroad. The latter posted a bond for his temporary liberty
immediately after being informed that a case was filed against him,
before the Municipal Court of Talisay.
Despite . . . the bond put up his uncle, he did not return to Cebu City
because it came to his knowledge that Maj. Tiempo inquired from the
bonding company as to his address.
He also stayed in Marikina in the house of his friend and during his stay
in the said place, he registered as a voter and was issue a Voter's
Affidavit, (Exh. "19"; Exh. "R" for the prosecution) which bore the name
"Paciano Mendoza Laput" which [was] his baptismal name. He
explained that the name[s] Mendoza and Laput [were] the middle name
and surname, respectively of his mother. The name "Rolusape" was
given to him by his father and the same [was] not his registered name
because during the old days, priests would not allow parents to name
their children with names not found in the Almanac; thus, Paciano [was]
his chosen name and the same appeared in his Baptismal Certificate,
(Exh. "20") issued by the Parish of the Blessed Trinity of Talibon, Bohol.
In his Birth Certificate, it [was] the name "Rolusape" which appeared
based upon the data supplied by his father.
He had used the name Paciano during the time when he [was] still a
secret agent under his uncle, Gen. Russo Sabalones, when the latter was
still the [c]hief of the C-2 in 1966 until 1967 and as such, he was issued a
firearm. He likewise used said name at the time he was employed at the
Governor's Office in Agusan and when he registered in the Civil Service
Commission to conceal his identity to protect himself from those who
were after him.
From Marikina he proceeded to Davao and then to Butuan City where he
was made to campaign for the candidacy of Gov. Eddie Rama. When the
latter won in the election, he was given a job at the Provincial Capitol
and later became an agent of the PC in Butuan using the name, "Paciano
Laput."
During his stay in Butuan, he met Virgie Pajigal, a manicurist who
became his live-in partner.
On October 23, 1988 while he was at the Octagon Cockpit in Butuan
with Sgt. Tambok, he was arrested by Capt. Ochate and was brought to
the PC Headquarter[s] in Libertad, Butuan City and was detained.
Among the papers confiscated from him was his Identification Card No.
028-88, (Exh. "21") issued by the PC Command bearing the name
Paciano Laput.
On October 26, 1988 he was taken from the City Jail by Capt. Ochate
and some soldiers, one of whom was Maj. Tiempo whom he met for the
first time.
On their way to Nasipit to board a vessel bound for Cebu City, Maj.
Tiempo made him lie flat on his belly and stepped on his back and
handcuffed him. He cried in pain because of his sprained shoulder. A
certain soldier also took his watch and ring.
Arriving in Cebu at 7:00 o'clock in the morning, he and Virgie Pajigal,
who followed him in the boat, were made to board a taxicab. Maj.
Tiempo alighted in certain place and talked to a certain guy. Thereafter,
they were brought to the Reclamation Area and were forced to go down
from the vehicle but Virgie Pajigal held him tightly. They were again
pulled out of the taxi but they resisted.
From the Capitol Building, they proceeded to CPDRC and on their way
thereto, Maj. Tiempo sat beside him inside the taxi and boxed him on the
right cheek below the ear and pulled his cuffed hands apart.
At the Provincial Jail, he was physically examined by its resident
physician, Dr. Dionisio Sadaya, and was also fingerprinted and
photographed, (Exh. "21"). He was issued a Medical Certificate, (Exh.
"22").
He further stated that he [was] acquainted with his co-accused Timoteo
Beronga, known to him as "Timmy" being also a bet caller in the
cockpit. (Tsn-Formentera, pp. 5-23, Feb. 26, 1991; Tsn-Abangan, pp. 3-
33, Feb. 27, 1991; Tsn-Abangan, pp. 4-18, Apr. 10, 1991).
As surrebuttal witness, accused Rolusape Sabalones denied that he
bribed a certain soldier because at the time he was arrested, his wallet as
well as his wristwatch and ring worth P2,000.00 each were confiscated
and his hands tied behind his back.
He also denied the allegation of Maj. Tiempo that he offered the latter
the amount of P1,000,000.00 to drop the case against him, the truth being
that while they were on board a vessel bound for Cebu City, Maj.
Tiempo compelled him to tell [who] the real killers of his son [were]
because he knew that he (Rolusape Sabalones) was not responsible. The
former also inquired from him as to the whereabouts of the carbine.
He also rebutted complainant's testimony that upon their arrival here in
Cebu City and while on board a taxicab, he directed the former [to] first
go around the city to locate a certain Romeo Cabañero, whom he did not
know personally. 10
Ruling of the Court of Appeals
Giving full credence to the evidence of the prosecution, the Court of
Appeals affirmed the trial court's Decision convicting appellants of two
counts of murder and three counts of frustrated murder. Like the trial
court, it appreciated the qualifying circumstance of treachery and
rejected appellants' defense of alibi.
The Court of Appeals, however, ruled that the penalties imposed by the
trial court were erroneous. Hence, for each count of murder, it sentenced
appellants to reclusion perpetua. For each count of frustrated murder, it
imposed the following penalty: ten years (10) of prision
mayor (medium), as minimum, to seventeen years (17) years and four (4)
months of reclusion temporal (medium), as maximum. Sustaining the
trial court, the Court of Appeals awarded indemnity of P20,000 to each
of the victims of frustrated murder. However, it was silent on the
indemnity of P50,000 awarded by the trial court to the heirs of each of
the two deceased.
Having imposed reclusion perpetua on the appellants, the Court of
Appeals, as earlier noted, refrained from entering judgment and certified
the case to the Supreme Court for review, in conformity with Section 13,
Rule 124 of the Rules of Court.
Hence, this appeal before this Court. 11
The Issues
12
In his Brief, Appellant Sabalones raised the following errors allegedly
committed by the trial court:
I Sufficiency of Evidence
The court a quo erred in finding that accused Sabalones and his friends
left the house where his brother Sabalones Junior was lying in state and
"went to their grisly destination amidst the dark and positioned
themselves in defense of his turf against the invasion of a revengeful
gang of the supporters of Nabing Velez.
II
The court a quo erred in finding that accused Sabalones and his two co-
accused were identified as among the four gunmen who fired at the
victims.
III
The court a quo erred in overlooking or disregarding physical evidence
that would have contradicted the testimony of prosecution witnesses
Edwin Santos and Rogelio Presores that the gunmen were shooting at
them from a standing position.
IV
The court a quo erred in holding that the instant case is "one of aberratio
ictus", which is not a defense, and that the "defense of alibi" interposed
by the accused may not be considered.
V
The court a quo erred in not finding that the evidence of the prosecution
has not overcome the constitutional presumption of innocence in favor of
the accused.
VI
The court a quo erred in not acquitting the accused on ground of
reasonable doubt.
In a Manifestation dated December 20, 1995, Appellant Beronga,
through counsel, adopted as his own the Brief of Sabalones. 13
The foregoing assignment of errors shall be reformulated by the Court
into these three issues or topics: (1) credibility of the witnesses and
sufficiency of the prosecution evidence, (2) defense of denial and alibi,
and (3) characterization of the crimes committed and the penalty
therefor.
The Court's Ruling
The appeal is devoid of merit.
First Issue:
Credibility of Witnesses and
Well-entrenched is the tenet that this Court will not interfere with the
trial court's assessment of the credibility of the witnesses, absent any
indication or showing that the trial court has overlooked some material
facts or gravely abused its discretion, 14 especially where, as in this case,
such assessment is affirmed by the Court of Appeals. "As this Court has
reiterated often enough, the matter of assigning values to declarations at
the witness stand is best and most competently performed or carried out
by a trial judge who, unlike appellate magistrates, can weigh such
testimony in light of the accused's behavior, demeanor, conduct and
attitude at the trial." 15 Giving credence to the testimonies of the
prosecution witnesses, the trial court concluded:
Stripped of unnecessary verbiage, this Court, given the evidence, finds
that there is more realism in the conclusion based on a keener and
realistic appraisal of events, circumstances and evidentiary facts on
record, that the gun slaying and violent deaths of Glenn Tiempo and
Alfredo Nardo, and the near fatal injuries of Nelson Tiempo, Rey Bolo
and Rogelio Presores, resulted from the felonious and wanton acts of the
herein accused for mistaking said victims for the persons [who were]
objects of their wrath. 16
We stress that "factual findings of the lower courts, the trial court and the
Court of Appeals are, as a general rule, binding and conclusive upon the
Supreme Court." 17 We find nothing in the instant case to justify a
reversal or modification of the findings of the trial court and the Court of
Appeals that appellants committed two counts of murder and three
counts of frustrated murder.
Edwin Santos, a survivor of the assault, positively pointed to and
identified the appellants as the authors of the crime. His categorical and
straightforward testimony is quoted hereunder: 18
COURT:
Q You stated there was a gun fired. What happened next?
WITNESS:
A There was a rapid fire in succession.
Q When you heard this rapid firing, what did you do?
A I tried to look from where the firing came from.
Q After that, what did you find?
A I saw persons firing towards us.
Q Where were these persons situated when they were firing towards
you?
A Near the foot of the electric post and close to the cemented wall.
Q This electric post, was that lighted at that moment?
A Yes, sir, it was lighted.
Q How far were these persons firing, to the place where you were?
A From here to there (The witness indicating the distance by pointing to
a place inside the courtroom, indicating a distance of about 6 to 7 meters,
making the witness stand as the point of reference).
Q Were you able to know how many persons fired towards you?
A I only saw 3 to 4 persons.
Q How long did these persons fire the guns at you?
A Until we went home. The persons were still firing, until we went
home.
Q You stated that you saw these persons who were firing at you. Do you
know these persons?
A I can identify [them] when I [see] them.
Q Try to look around this courtroom, if these persons you saw who were
firing at you are present in the courtroom[.]
A Yes, sir.
Q Can you point to these persons?
A Yes, sir.
Q Point at them.
COURT INTERPRETER:
The Court directed the witness to go down from the witness stand and
[point] at them, Beronga and Alegarbes.
FISCAL GABIANA:
I would like to make it of record that on the bench of prisoner, only the
two accused were seated.
COURT:
Make it of record that only two prisoners were present.
Q Now, Mr. Santos, aside from these two accused you identified as
among those who fired [at] you on that evening, were there other persons
that you saw on that particular occasion who fired at you?
A Yes, sir, there were[;] if I can see them, I can identify them.
Corroborating the foregoing, Rogelio Presores, another survivor, also
pointed to Timoteo Beronga, Teodulo Alegarbes and Roling Sabalones
as the perpetrators of the crime. His testimony proceeded in this
manner: 19
Q When you arrived at the residence of Stephen Lim, can you remember
of any unusual incident that took place?
A Yes, sir.
Q What was that?
A When the jeep arrived, the car was following.
Q What happened next?
A When the jeep was near the gate, the car was following.
Q The car was following the jeep, at what distance?
A 3 to 4 meters.
Q While the car was following the jeep at that distance of 3 to 4 meters,
what happened?
A All of a sudden, we heard the burst of gunfire. A The two of them (The witness pointing to the 2 persons, who, when
Q From what direction was the gunfire? asked, answered that his name [was] Teofilo Beronga and the other [was]
A Through the direction of the jeep. Alegarbes).
Q After hearing the gunfire, what happened? Indeed, we have carefully waded through the voluminous records of this
A We looked at the jeep. case and the testimonies of all the fifty-nine witnesses, and we find that
Q What did you see? the prosecution has presented the required quantum of proof to establish
A We saw Alfredo Nardo and Glenn Tiempo and Rey Bolo f[a]ll to the that appellants are indeed guilty as charged. Appellants' arguments, as
ground. There were only 3. we shall now discuss, fail to rebut this conclusion.
Q Who was driving the jeep at that time? Positive Identification
A Alfredo Nardo. Appellants allege that the two witnesses could not have properly
Q What happened after that? identified the appellants because, after the first burst of shooting, they
A So, I looked, whence the burst of gunfire came from. both crouched down, such that they could not have seen the faces of their
Q What did you see from that gunfire? assailants. This contention does not persuade. Both eyewitnesses testified
A I saw 4 persons standing at the back of the fence. that the firing was not continuous; thus, during a lull in the firing, they
Q What were those 4 persons doing when they were standing at the back raised their heads and managed a peek at the perpetrators. Edwin Santos
of the fence? testified as follows:
A They were bringing long firearms. Atty. Albino, counsel for accused Beronga:
Q Did you recognize these persons? Q You mean to say that when you bent you heard the successive shots,
A I can clearly recognize one and the 3 persons[.] I can identify them, if I [and] you again raised your head. Is that correct?
can see them again. A There, were times that the shots were not in succession and continuous
Q If you are shown these persons, can you recognize them? Can you and that was the time I raised my head again. 20
name these persons? Like Santos, Rogelio Presores also stooped down when the firing started,
A No, sir. Only their facial appearance. but he raised his head during a break in the gunfire:
Q What about the 3 persons? Atty. Albino:
A That's why the 3 persons, I do not know them. I can recognize only Q So, what did you do when you first heard that one shot?
their facial appearance. A So, after the first shot, we looked towards the direction we were facing
Q What about one person? and when we heard the second shot, that was the time we stooped
A Yes, sir. down. 21
Q What is the name of the person? He further testified:
A Roling Sabalones. Atty. Acido: [Counsel for Appellant Sabalones]
Q If Roling Sabalones is inside the courtroom, can you recognize Roling Q And you said you stooped down inside the car when you heard the
Sabalones? first firing to the jeep. Is that what you want the Court to understand[?]
A Yes, sir, he is around. Presores:
Q Can you point to Roling Sabalones? A Yes, sir.
A Yes, he is there (The witness pointing to the person who answered the Q So, you never saw who fired the successive shots to the car as you said
name of Roling Sabalones). you stooped down inside the car?
Q I would like [you] again to please look around and see, if those A The bursts of gunfire stopped for a while and that was the time I reared
persons whom you know through their faces, if they are here around? of [sic] my head.
Q And that was the first time you saw them?
A Yes, sir. 22
The records clearly show that two vehicles proceeded to the house of
Stephen Lim on that fateful day. The first was the jeep where Alfredo
Nardo, Glenn Tiempo and Rey Bolo were riding. About three to four
meters behind was the second car carrying Nelson Tiempo, Guillermo
Viloria, Rogelio Oliveros and the two prosecution witnesses - Edwin
Santos and Rogelio Presores. 23 As stated earlier, said witnesses attested
to the fact that after the first volley of shots directed at the jeep, they both
looked at the direction where the shots were coming from, and they saw
their friends in the jeep falling to the ground, as well as the faces of the
perpetrators. 24 It was only then that a rapid succession of gunshots were
directed at them, upon which they started crouching to avoid being hit.
Hence, they were able to see and identify the appellants, having had a
good look at them after the initial burst of shots. We stress that the
normal reaction of a person is to direct his sights towards the source of a
startling shout or occurrence. As held in People v. Dolar, 25 "the most
natural reaction for victims of criminal violence is to strive to see the
looks and faces of their assailants and to observe the manner in which the
crime is committed.
In bolstering their claim that it was impossible for the witnesses to have
identified them, appellants further aver that the crime scene was dark,
there being no light in the lampposts at the time. To prove that the
service wire to the street lamps at the Mansueto Compound was
disconnected as early as December 1984 and reconnected only on June
27, 1985, they presented the testimonies of Vicente
Cabanero, 26 Remigio Villaver, 27 Fredo Canete 28 and Edward
Gutang. 29 The trial court, however, did not lend weight to said
testimonies, preferring to believe the statement of other prosecution
witnesses that the place was lighted during that time.
The Court of Appeals sustained said findings by citing the testimonies
of defense witnesses. Fredo Canete of the Visayan Electric Company
(VECO), for instance, admitted that it was so easy to connect and
disconnect the lights. He testified thus:
Atty. Kintanar:
Q Now, as a cutter, what instruments do you usually use in cutting the
electrical connection of a certain place?
Canete:
A Pliers and screw driver.
Q Does it need . . . very sophisticated instruments to disconnect the
lights?
A No, these are the only instruments we use.
Q Ordinary pliers and ordinary screw driver?
A Yes, sir.
Q And does [one] need to be an expert in electronic [sic] in order to
conduct the disconnection?
A No, sir.
Q In other words, Mr. Canete, any ordinary electrician can cut it?
A That is if they are connected with the Visayan Electric Company.
Q What I mean is that, can the cutting be done by any ordinary
electrician?
A Yes, sir. 30
Said witness even admitted that he could not recall if he did in fact cut
the electrical connection of the Mansueto Compound. 31 The Court of
Appeals further noted that "none of the above witnesses were at the
crime scene at or about the exact time that the ambush occurred. Thus,
none was in a position to state with absolute certainty that there was
allegedly no light to illuminate the gunmen when they rained bullets on
the victims. 32
Even assuming arguendo that the lampposts were not functioning at the
time, the headlights of the jeep and the car were more than sufficient to
illuminate the crime scene. 33 The Court has previously held that the light
from the stars or the moon, an oven, or a wick lamp or gasera can give
ample illumination to enable a person to identify or recognize
another. 34 In the same vein, the headlights of a car or a jeep are
sufficient to enable eyewitnesses to identify appellants at the distance of
4 to 10 meters.
Extrajudicial Statement
of Beronga
Appellants insist that Beronga's extrajudicial statement was obtained
through violence and intimidation. Citing the res inter alios acta rule,
they also argue that the said statement is inadmissible against Sabalones.
Specifically, they challenge the trial court's reliance on the following
portions of Beronga's statement:
Q After Roling knew that Na[b]ing Velez was killed, have you observed
[if] Roling and his companions prepared themselves for any eventuality?
A It did not take long after we knew that Na[b]ing was killed, somebody
called up by telephone looking for Roling, and this was answered by
Roling but we did not know what they were conversing about and then
Roling went back to the house of Junior after answering the phone. And
after more than two hours, we heard the sound of engines of vehicles
arriving, and then Meo, the man who was told by Roling to guard,
shouted saying: "They are already here[;]" after that, Roling came out
carrying a carbine accompanied by Tsupe, and not long after we heard
gunshots and because of that we ran towards the house where the wake
was. But before the gun-shots, I heard Pedring Sabalones father of
Roling saying: "You clarify, [t]hat you watch out for mistake[n] in
identity," and after that shout, gunshots followed. [sic] Then after the
gun-shots Roling went back inside still carrying the carbine and shouted:
"GATHER THE EMPTY SHELLS AND MEO[,] YOU BRING A
FLASHLIGHT," and then I was called by Meo to help him gather the
empty shells of the carbine and also our third companion to gather the
empty shells.
These arguments have no merit. In the first place, it is well to stress that
appellants were convicted based primarily on the positive identification
of the two survivors, Edwin Santos and Rogelio Presores, and not only
on the extrajudicial statement, which merely corroborates the eyewitness
testimonies. Thus, said arguments have no relevance to this case. As the
Court held in People vs. Tidula: 35 "Any allegation of violation of rights
during custodial investigation is relevant and material only to cases in
which an extrajudicial admission or confession extracted from the
accused becomes the basis of their conviction."
In any case, we sustain the trial court's holding, as affirmed by the Court
of Appeals, that the extrajudicial statement of Beronga was executed in
compliance with the constitutional requirements. 36 "Extrajudicial
confessions, especially those which are adverse to the declarant's
interests are presumed voluntary, and in the absence of conclusive
evidence showing that the declarant's consent in executing the same has
been vitiated, such confession shall be upheld." 37
The exhaustive testimony of Sgt. Miasco, who undertook the
investigation, shows that the appellant was apprised of his constitutional
rights to remain silent and to have competent and independent counsel of
his own choice. 38Said witness also stated that Beronga was assisted by
Atty. Marcelo Guinto during the custodial investigation. 39 In fact, Atty.
Guinto also took the witness stand and confirmed that Appellant Beronga
was informed of his rights, and that the investigation was proper, legal
and not objectionable. Indeed, other than appellants' bare allegations,
there was no showing that Beronga's statement was obtained by force or
duress. 40
Equally unavailing is appellants' reliance on the res inter alios acta rule
under Section 30, Rule 130 of the Rules of Court, which provides:
The act or declaration of a conspirator relating to the conspiracy and
during its existence, may be given in evidence against the co-conspirator
after the conspiracy is shown by evidence other than such act or
declaration.
Appellants assert that the admission referred to in the above provision is
considered to be against a co-conspirator only when it is given during the
existence of the conspiracy. They argue that Beronga's statement was
made after the termination of the conspiracy; thus, it should not be
admitted and used against Sabalones.
The well-settled rule is that the extrajudicial confession of an accused is
binding only upon himself and is nor admissible as evidence against his
co-accused, it being mere hearsay evidence as far as the other accused
are concerned. 41 But this rule admits of exception. It does not apply
when the confession, as in this case, is used as circumstantial evidence to
show the probability of participation of the co-accused in the killing of
the victims 42 or when the confession of the co-accused is corroborated
by other evidence. 43
Beronga's extrajudicial statement is, in fact, corroborated by the
testimony of Prosecution Witness Jennifer Binghoy. Pertinent portions of
said testimony are reproduced hereunder:
Q While you were at the wake of Jun Sabalones and the group were
sitting with Roling Sabalones, what were they doing?
A They were gathered in one table and they were conversing with each
other.
xxx xxx xxx
Q On that same date, time and place, at about 10:00 [i]n the evening, can
you remember if there was unusual incident that took place?
A I heard over the radio at the Sabalones Family that a certain Nabing
Velez was shot.
Q That [a] certain Nabing Velez was shot? What else . . . transpired?
A I observed that their reactions were so queer, - as if they were
running.
xxx xxx xxx
Q In that evening of June 1, 1985, when you went there at the house of
Jun Sabalones, have you seen an armalite?
A Yes, sir.
Q Where aid you see this armalite?
A At the table where they were conversing.
Q How many armalites or guns [did you see] that evening in that place?
A Two (2).
xxx xxx xxx
Q This armalite that you saw, - how far was this in relation to the groups
of Sabalones?
A There (The witness indicating a distance of about 4 to 5 meters).
ATTY. KINTANAR:
Q When you looked . . . through the window and saw there were two
vehicles and there were bursts of gunfire, what happened after that?
A I did not proceed to look . . . through the window because I stooped
down.
Q When you stooped down, what happened?
A After the burst of gunfire, I again opened the window.
Q And when again you opened the window, what happened?
A I saw two persons going towards the jeep.
Q What transpired next after [you saw] those 2 persons?
A When they arrived there, they nodded their head[s].
Q After that, what happened?
A So, they went back to the direction where they came from, going to the
house of Sabalones.
Q While they were going to the direction of the house of Sabalones, what
transpired?
A I saw 5 to 6 persons coming from the highway and looking to the jeep,
and before they reached the jeep, somebody shouted that "it's ours".
Q Who shouted?
A The voice was very familiar to me.
Q Whose voice?
A The voice of Roling Sabalones.
Q What else have you noticed during the commotion [when] wives were
advising their husbands to go home?
A They were really in chaos. 44
A careful reading of her testimony buttresses the finding of the trial court
that Rolusape Sabalones and his friends were gathered at one table,
conversing in whispers with each other, that there were two rifles on top
of the table, and that they became panicky after hearing of the death of
Nabing Velez on the radio. Hence, the observation of the trial court that
"they went to their grisly destination amidst the dark and positioned
themselves in defense of his turf against the invasion of a revengeful
gang of supporters of the recently slain Nabing Velez." 45
Alleged Inconsistencies
Appellants also allege that the prosecution account had inconsistencies
relating to the number of shots heard, the interval between gunshots and
the victims' positions when they were killed. These, however, are minor
and inconsequential flaws which strengthen, rather than impair, the
credibility of said eyewitnesses. Such harmless errors are indicative of
truth, not falsehood, and do not cast serious doubt on the veracity and
reliability of complainant's testimony. 46
Appellants further claim that the relative positions of the gunmen, as
testified to by the eyewitnesses, were incompatible with the wounds
sustained by the victims. They cite the testimony of Dr. Ladislao Diola,
who conducted the autopsy on Glenn Tiempo. He declared that the
victim must necessarily be on a higher level than the assailant, in the
light of the path of the bullet from the entrance wound to where the slug
was extracted. This finding, according to appellant, negates the
prosecution's account that the appellants were standing side by side
behind a wall when they fired at the victims. If standing, appellants must
have been on a level higher than that of the occupants of the vehicles; if
beside each other, they could not have inflicted wounds which were
supposed to have come from opposite angles.
We are not persuaded. The defense presumes that the victims were
sitting still when they were fired upon, and that they froze in the same
position during and after the shooting. This has no testimonial
foundation. On the contrary, it was shown that the victims ducked and
hid themselves, albeit in vain, when the firing began. After the first
volley, they crouched and tried to take cover from the hail of bullets. It
would have been unnatural for them to remain upright and still in their
seat. Hence, it is not difficult to imagine that the trajectories of the bullet
wounds varied as the victims shifted their positions. We agree with the
following explanation of the Court of Appeals:
The locations of the entry wounds can readily be explained, . . . Glenn
Tiempo, after looking in the direction of the explosion, turned his body
around; and since the ambushers were between the jeep and the car, he
received a bullet in his right chest (wound no. 1) which traveled to the
left. As to wound No. 2, it can be explained by the spot where Major
Tiempo found his fallen son.
Atty. Kintanar:
Q: Upon being informed by these occupants who were ambushed and
[you] were able to return the car, what did you do?
Major Tiempo:
A: I immediately got soldiers and we immediately proceeded to the area
or to the place where my fallen son was located and when we reached . . .
the place, I saw my fallen son [in] a kneeling position where both knees
[were] touching the ground and the toes also and the forehead was
touching towards the ground. (TSN, Feb. 12, 1988, p. 6)
In such position the second bullet necessarily traveled upwards in
relation to the body, and thus the entry wound should be lower than the
exit wound. There is no showing that both wounds were inflicted at the
same time. 47
In any event, the witnesses saw that the appellants were the gunmen who
were standing side by side firing at them. They could have been in a
different position and in another hiding place when they first fired, but
this is not important. They were present at the crime scene, and they
were shooting their rifles at the victims.
Aberratio Ictus
Appellants likewise accuse the trial court of engaging in "conjecture" in
ruling that there was aberratio ictus in this case. This allegation does not
advance the cause of the appellants. It must be stressed that the trial court
relied on the concept of aberratio ictus to explain why the appellants
staged the ambush, not to prove that appellants did in fact commit the
crimes. Even assuming that the trial court did err in explaining the
motive of the appellants, this does not detract from its findings, as
affirmed by the Court of Appeals and sustained by this Court in the
discussion above, that the guilt of the appellants was proven beyond
reasonable doubt.
In any event, the trial court was not engaging in conjecture in so ruling.
The conclusion of the trial court and the Court of Appeals that the
appellants killed the wrong persons was based on the extrajudicial
statement of Appellant Beronga and the testimony of Jennifer Binghoy.
These pieces of evidence sufficiently show that appellants believed that
they were suspected of having killed the recently slain Nabing Velez,
and that they expected his group to retaliate against them. Hence, upon
the arrival of the victims' vehicles which they mistook to be carrying the
avenging men of Nabing Velez, appellants opened fire. Nonetheless, the
fact that they were mistaken does not diminish their culpability. The
Court has held that "mistake in the identity of the victim carries the same
gravity as when the accused zeroes in on his intended
victim." 48
Be that as it may, the observation of the solicitor general on this point is
well-taken. The case is better characterized as error personae or mistake
in the identity of the victims, rather than aberratio ictus which means
mistake in the blow, characterized by aiming at one but hitting the other
due to imprecision in the blow.
Second Issue:
Denial and Alibi
Appellants decry the lower courts' disregard of their defense of alibi. We
disagree. As constantly enunciated by this Court, the established doctrine
requires the accused to prove not only that he was at some other place at
the time of the commission of the crime, but that it was physically
impossible for him at the time to have been present at the locus
criminis or its immediate vicinity. 49 This the appellants miserably failed
to do.
Appellant Beronga testified that, at the time of the incident, he was in his
residence in Lapulapu City, which was not shown to be so remote and
inaccessible that it precluded his presence in Mansueto Subdivision. The
alibi of Sabalones is even more unworthy of belief; he sought to establish
that he was a mere 20-25 meters away from the scene of the crime. He
was allegedly in the house of his brother who was lying in state, which
was so near the ambush site that some of the defense witnesses even
testified that they were terrified by the gunfire. Clearly, appellants failed
to establish the requisites of alibi.
Furthermore, the defense of alibi cannot overcome the positive
identification of the appellants. 50 As aptly held by this Court in People
v. Nescio: 51
Alibi is not credible when the accused-appellant is only a short distance
from the scene of the crime. The defense of alibi is further offset by the
positive identification made by the prosecution witnesses. Alibi, to
reiterate a well-settled doctrine, is accepted only upon the clearest proof
that the accused-appellant was not or could not have been at the crime
scene when it was committed.
Flight
Appellants further object to the finding that Sabalones, after the incident,
"made himself scarce from the place of commission. He left for Manila,
thence Mindanao on the supposition that he want[ed] to escape from the
wrath of Maj. Tiempo and his men for the death of Glenn Tiempo and
the near fatal shooting of the other son or from the supporters of Nabing
Velez. . . . On his supposedly borrowed freedom, he jumped bail and hid
himself deeper into Mindanao, under a cloak of an assumed name. Why,
did his conscience bother him for comfort?" 52
Appellants rationalized that Sabalones was forced to jump bail in order
to escape two groups, who were allegedly out to get him, one of Nabing
Velez and the other of Major Tiempo. Their ratiocination is futile. It is
well-established that "the flight of an accused is competent evidence to
indicate his guilt, and flight, when unexplained, is a circumstance from
which an inference of guilt may be drawn." 53 It must be stressed,
nonetheless, that appellants were not convicted based on legal inference
alone but on the overwhelming evidence presented against them.
Third Issue:
Crime and Punishment
We agree with the appellate court that accused-appellants are guilty of
murder for the deaths of Glenn Tiempo end Alfredo Nardo. The
allegation of treachery as charged in the Information was duly proven by
the prosecution. "Treachery is committed when two conditions concur,
namely, that the means, methods, and forms of execution employed gave
the person attacked no opportunity to defend himself or to retaliate; and
that such means, methods and forms of execution were deliberately and
consciously adopted by the accused without danger to his
person." 54 These requisites were evidently present when the accused,
swiftly and unexpectedly, fired at the victims who were inside their
vehicles and were in no position and without any means to defend
themselves.
The appellate court also correctly convicted them of frustrated murder
for the injuries sustained by Nelson Tiempo, Rey Bolo and Rogelio
Presores. As evidenced by the medical certificates and the testimony of
Dr. Miguel Mancao who attended to the victims, Nelson Tiempo
sustained a neck wound which completely shattered his trachea and
rendered him voiceless, as well as a wound on the right chest which
penetrated his axilla but not his chest cavity. 55 Rey Bolo sustained three
injuries which affected his clavicle, ribs and lungs. 56 Rogelio Presores,
on the other hand, sustained an injury to his lungs from a bullet wound
which entered his right chest and exited through his back. 57
The wounds sustained by these survivors would have caused their death
had it not been for the timely medical intervention. Hence, we sustain the
ruling of the Court of Appeals that appellants are guilty of three counts
of frustrated murder.
We also uphold the Court of Appeals' modification of the penalty for
murder, but not its computation of the sentence for frustrated murder.
For each of the two counts of murder, the trial court imposed the penalty
of fourteen (14) years, eight (8) months and one (1) day of reclusion
temporal(medium), as minimum, to seventeen (17) years, four (4)
months and one (1) day of reclusion temporal (maximum), as maximum.
This is incorrect. Under Article 248 of the Ravised Penal Code, the
imposable penalty is reclusion temporal, in its maximum period, to
death. There being no aggravating or mitigating circumstance, aside from
the qualifying circumstance of treachery, the appellate court correctly
imposed reclusion perpetua for murder.
The Court of Appeals, however, erred in computing the penalty for each
of the three counts of frustrated murder. It sentenced appellants to
imprisonment of ten years of prision mayor (medium) as minimum to
seventeen years and four months of reclusion temporal (medium) as
maximum. It modified the trial court's computation of eight (8) years of
prision mayor (minimum), as minimum, to fourteen (14) years and eight
(8) months of reclusion temporal(minimum) as maximum.
Under Article 50 of the Revised Penal Code, the penalty for a frustrated
felony is the "next lower in degree than that prescribed by law for the
consummated felony . . . ." The imposable penalty for frustrated murder,
therefore, is prision mayor in its maximum period to reclusion
temporal in its medium period. 58Because there are no aggravating or
mitigating circumstance as the Court of Appeals itself held, 59 the penalty
prescribed by law should be imposed in its medium period. With the
application of the Indeterminate Sentence Law, the penalty for frustrated
murder should be 8 years of prision mayor (minimum), as minimum, to
14 years and 8 months of reclusion temporal (minimum) as maximum.
Although the Court of Appeals was silent on this point, the trial court
correctly ordered the payment of P50,000 as indemnity to the heirs of
each of the two murdered victims. In light of current jurisprudence, this
amount is awarded without need of proof other than the fact of the
victim's death. 60 The trial court and the CA, however, erred in awarding
indemnity of P20,000 each to Nelson Tiempo, Rogelio Presores and Rey
Bolo. There is no basis, statutory or jurisprudential, for the award of a
fixed amount to victims of frustrated murder. Hence, they are entitled
only to the amounts of actual expenses duly proven during the trial.
Thus, Nelson Tiempo, who was treated for a gunshot wound on the neck
which shattered his trachea, should be awarded indemnity of P21,594.22
for his medical expenses. This is evidenced by a statement of account
from Cebu Doctor's Hospital. 61
Rogelio Presores, who was likewise treated for gunshot wound in the
same hospital, presented a statement of account amounting to P5,412.69
for his hospitalization. 62 Hence, he is likewise entitled to indemnity in
the said amount.
Rey Bolo, on the other hand, incurred an expense of P9,431.10 for the
treatment of his gunshot wounds, as evidenced by a statement of account
from the same hospital. 63 This amount should be awarded to him as
indemnity.
WHEREFORE, the appeal is DENIED and the assailed Decision is
AFFIRMED. However, the penalties are hereby MODIFIED as follows:
1) In Crim. Case No. CBU-9257, for MURDER, the accused-appellants
are each hereby sentenced to reclusion perpetua and to indemnify,
jointly and severally, the heirs of the deceased, Glenn Tiempo, in the
sum of P50,000;
2) In Crim. Case No. CBU-9258, for MURDER, the accused-appellants
are each hereby sentenced to reclusion perpetua and to indemnify,
jointly and severally, the heirs of the deceased, Alfredo Nardo, in the
sum of P50,000;
3) In Crim. Case No. CBU-9259, for FRUSTRATED MURDER, the
accused-appellants are each hereby sentenced to suffer the penalty of 8
years of prision mayor (minimum), as minimum, to 14 years and 8
months of reclusion temporal (minimum) as maximum; and to jointly
and severally pay the victim, Rey Bolo, in the sum of P9,431.10 as actual
damages;
4) In Crim Case No. CBU-9260, for FRUSTRATED MURDER, the
accused-appellants are hereby sentenced to suffer the penalty of 8 years
of prision mayor (minimum), as minimum, to 14 years and 8 months
of reclusion temporal (minimum) as maximum; and to jointly and
severally indemnify the victim, Rogelio Presores, in the sum of
P5,412.69 for actual damages;
5) In Crim. Case No. CBU-9261 for FRUSTRATED MURDER, the
accused-appellants are hereby sentenced to suffer the penalty of 8 years
of prision mayor (minimum), as minimum, to 14 years and 8 months
of reclusion temporal (minimum) as maximum; and to jointly and
severally indemnify the victim, Nelson Tiempo, in the sum of
P21,594.22 as actual damages.
Let copies of this Decision be furnished the Secretary of Interior and
Local Government and the Secretary of Justice so that Accused Eufemio
Cabanero may be brought to justice.
Costs against appellants.
SO ORDERED.
Davide, Jr., Bellosillo, Vitug and Quisumbing, JJ., concur.
Endnotes:
1 Penned by J. Jesus M. Elbinias and concurred in by JJ. Buenaventura J.
Guerrero and B.A. Adefuin-Dela Cruz.
2 CA Rollo, pp. 205-236.
3 Presided by Judge Generoso A. Juaban.
4 RTC Decision, pp. 31-32; CA rollo, pp. 58-59.
5 CA Decision, pp. 31-32; CA rollo, pp. 235-236.
6 SC Resolution of September 9, 1996; rollo, p. 11.
7 The Appellee's Brief was signed by Assistant Solicitor General Cecilio
O. Estoesta and Solicitor Ma. Cielo Se-Rondain; CA rollo, pp. 171-178.
8 Appellee's Brief, pp. 7-14; CA rollo, pp. 171-178.
9 The Appellants' Brief contained no statement of facts.
10 RTC Decision, pp. 14-26; CA rollo, pp. 41-53.
11 The case was deemed submitted for resolution on August 29, 1997,
upon receipt by the Court of the confirmation of the detention of
Appellant Beronga at the National Bilibid Prisons.
12 Brief of Accused-Appellant Sabalones before the CA, pp. 3, 8, 21, 29
and 39, signed by Atty. Pedro L. Albino.
13 CA rollo, p. 78.
14 People v. Turingan, GR No. 121628, December 4, 1997; People v.
Sumbillo, 271 SCRA 428, April 18, 1997; People v. Ombrog, 268 SCRA
93, February 12, 1997; People v. Arce, 227 SCRA 406, October 26,
1993.
15 People v. Aranjuez, GR No. 121898, January 29, 1998, per Romero,
J.; People v. Castillo, 273 SCRA 22, June 12, 1997.
16 RTC Decision, p. 26; CA rollo, p. 53.
17 Del Mundo v. court of Appeals, 252 SCRA 432, January 29, 1996,
per Romero, J.; Aspi v. CA, 236 SCRA 94, September 1, 1994; Coca-
Cola Bottlers Philippines, Inc. v. CA, 229 SCRA 151, January 27, 1994.
18 TSN, April 7, 1987, pp. 13-17.
19 TSN, December 19, 1988, pp. 27-29.
20 TSN, August 7, 1987, p. 10.
21 TSN, October 15, 1987, p. 6.
22 TSN, January 26, 1989, p. 14.
23 TSN, December 19, 1988, p. 26.
24 Ibid., pp. 28-29; TSN, April 7, 1987, pp. 14 and 23.
25 231 SCRA 414, March 24, 1994, per Puno, J.; People v. Satagoda,
221 SCRA 251, April 7, 1993.
26 TSN, February 22, 1990, pp. 22-23.
27 Ibid., pp. 8-9.
28 TSN, April 20, 1990, pp. 3 and 5.
29 TSN, December 11, 1990, pp. 1-4.
30 TSN, April 20, 1990, p. 6. This was quoted in the CA Decision, pp.
20-21; CA rollo, pp. 224-225.
31 TSN, April 20, 1990, p. 4.
32 CA Decision, p. 18; CA rollo, p. 222.
33 TSN, April 7, 1987, p. 23.
34 People v. Briones, 202 SCRA 708, October 15, 1991, per Paras
J.; citing People v. Vacal, 27 SCRA 24; People v. Pueblas, 127 SCRA
746; People v. dela Cruz, 147 SCRA 359; People v. Aboga, 147 SCRA
404.
35 GR No. 123273, July 16, 1998, per Panganiban, J.
36 RTC Decision, p. 27; CA rollo, p. 54.
37 People v. Nimo, 227 SCRA 69, October 5, 1993, per Romero, J.;
People v. Luvendino, 211 SCRA 36, July 3, 1992; People v. Quijano,
197 SCRA 761, May 31, 1991.
38 TSN, May 31, 1989, pp. 4-23.
39 TSN, June 2, 1989, pp. 4-10.
40 Ibid., pp. 18-19 and 24-25.
41 People v. Liwag, 225 SCRA 46, August 3, 1993; People v. Alegre, 94
SCRA 109, November 7, 1979.
42 People v. Alvarez, 201 SCRA 364, September 5, 1991; People v.
Vasquez, 113 SCRA 772, April 27, 1982.
43 People v. Victor, 181 SCRA 818, February 6, 1990; People v. Paz, 11
SCRA 667, August 31, 1964; People v. Agdeppa, 30 SCRA 782,
December 24, 1969.
44 TSN, November 28, 1988, pp. 5-20.
45 RTC Decision, p. 27; CA rollo, p. 54.
46 People v. Gaorana, GR Nos. 109138-39, April 27, 1998.
47 CA Decision, p. 29; CA rollo, p. 233. Emphasis supplied.
48 People v. Pinto, Jr., 204 SCRA 9, 31, November 21, 1991, per
Fernan, CJ; Calderon v. People, 96 Phil. 216 (1954); People v. Esteban,
103 SCRA 520, March 30, 1981.
49 People v. Tulop, GR No. 124829, April 21, 1998; People v.
Ballesteros, GR No. 120921, January 29, 1998; People v.
Sumbillo, supra.
50 People v. Arellano, GR Nos. 119078-79, December 5, 1997; People
v. Apongan, 270 SCRA 713, April 4, 1997; People v. Castillo, supra.
51 239 SCRA, December 28, 1994, per Romero, J.
52 RTC Decision, p. 29; CA rollo, p. 56.
53 People v. Gomez, 251 SCRA 455, December 19, 1995, per Davide,
Jr. J.
54 People v. Castillo, G.R. No. 120282, April 20, 1998, per Panganiban,
J.; People v. Maalat, GR No. 109814, July 8, 1997; People v. Tuson, 261
SCRA 711, September 16, 1996.
55 TSN, May 30, 1989, pp. 10, 22 and 23.
56 Ibid., pp. 13 and 23.
57 TSN, May 30, 1989, pp. 15 and 24.
58 As earlier noted, the penalty for consummated murder is reclusion
temporal, in its maximum period, to death.
59 CA Decision, p. 31; CA rollo, p. 235.
60 People v. Cayabyab, 274 SCRA 387, June 19, 1997; People v. Dones,
254 SCRA 696, 710, March 13, 1996.
61 TSN, February 12, 1988, p. 9.
62 Ibid., p. 11.
63 Id., p. 12.