CRIM - Use of Unlicensed Firearm - Principal by Inducement

USE OF UNLICENSED FIREARM IN THE COMMISSION OF THE CRIME
G.R. Nos. 136149-51 September 19, 2000

PEOPLE OF THE PHILIPPINES, appellee, vs. WALPAN LADJAALAM y MIHAJIL
alias "WARPAN," appellant.
DECISION
PANGANIBAN, J.:
Republic Act No. 8294 penalizes simple illegal possession of firearms, provided that the
person arrested committed "no other crime." Furthermore, if the person is held liable for
murder or homicide, illegal possession of firearms is an aggravating circumstance, but
not a separate offense. Hence, where an accused was convicted of direct assault with
multiple attempted homicide for firing an unlicensed M-14 rifle at several policemen who
were about to serve a search warrant, he cannot be held guilty of the separate offense
of illegal possession of firearms. Neither can such unlawful act be considered to have
aggravated the direct assault.
The Case
Walpan Ladjaalam y Mihajil, also known as "Warpan," appeals before us the September
17, 1998 Decision of the Regional Trial Court (RTC) of Zamboanga City (Branch 16),
which found him guilty of three out of the four charges lodged against him.
Filed against appellant were four Informations, all signed by Assistant Regional State
Prosecutor Ricardo G. Cabaron and dated September 25, 1997. The first Information
was for maintaining a den for the use of regulated drugs. It reads as follows:
"That on or about September 24, 1997, in the City of Zamboanga, Philippines, and
within the jurisdiction of this Honorable Court, the above-named accused, Walpan
Ladjaalam being then the owner of a residential house located at Rio Hondo, this City,
conspiring and confederating together, mutually aiding and assisting x x x his co-
accused wife Nur-in Ladjaalam and Ahmad Sailabbi y Hajaraini, did then and there
wilfully, unlawfully and feloniously, maintain said house as a den, where regulated drug
[was] used in any form."
The second Information charged appellant with illegal possession of firearms and
ammunition. We quote it below:
within the jurisdiction of this Honorable Court, the above-named accused, conspiring and
confederating together, mutually aiding and assisting with one another, without any
justifiable reason or purpose other than to use it in the commission of crime, did then
and there, wilfully, unlawfully, and feloniously have in their possession and under their
custody and control, the following weapons, to wit: one (1) M14 rifle with SN 1555225
with magazines and seven (7) rounds of live ammunition; two (2) magazines with
twenty (20) and twenty[-one] (21) rounds of live [ammunition]; one (1) homemade
caliber .38 revolver with five (5) live ammunition; one (1) M-79 (single) rifle with pouch
and with five (5) empty shell[s]; one (1) home made caliber .38 with SN-311092 with
five live ammunition and one empty shell of [a] cal. 38 x x x Smith and Wesson; two (2)
.38 Caliber paltik revolver with Serial Number 311092 and one defaced M79 grenade
launcher paltik, without first having obtained the necessary license and or permit
therefor from authorities concerned, in flagrant violation of the aforementioned law."
The third Information, for multiple attempted murder with direct assault, was worded
thus:
within the jurisdiction of this Honorable Court, the above-named accused being then
armed with M-14 Armalite Rifles, M-16 Armalite Rifles and other assorted firearms and
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explosives, conspiring and confederating together, mutually aiding and assisting x x x
one another and with intent to kill, did then and there wilfully, unlawfully and feloniously
try and attempt to kill SPO1 WILLIAM B. JONES, JR., PO3 ENRIQUE C. RIVERA[,] SPO1
AMADO A. MIRASOL, JR., and SPO1 RICARDO J. LACASTESANTOS, in the following
manner, to wit: by then and there firing their M-14 x x x Armalite Rifles, M-16 Armalite
Rifles and other assorted firearms and explosives, aimed and directed at the fatal parts
of the bodies of the above-named police officers, well known to the accused as members
of the Philippine National Police, Zamboanga City Police Office, and as such, agents of a
person in authority, who at the time of the attack were engaged in the performance of
their duties, that is, on the occasion when said officers were about to serve the Search
Warrant legally issued by the Regional Trial Court, this City, to the person of the accused
thus commencing the commission of crime of multiple murder directly by overt acts, and
if the accused did not accomplish their unlawful purpose, that is, to kill the above-named
Police Officers, it was not by reason of their own voluntary desistance but rather
because of the fact that all the above-named police officers were able to seek cover
during the firing and were not hit by the bullets and explosives fired by the accused and
also by the fact said police officers were able to wrestle with two (2) of the accused
namely: Walpan Ladjaalam y Mihajil a.k.a. ‘Warpan’ and Ahmad Sailabbi y Hajairani,
who were subdued and subsequently placed under arrest; whereas accused PO2
Nurhakim T. Hadjula was able to make good his escape and has remained at-large."
In the fourth Information, appellant was charged with illegal possession of drugs.
On December 21, 1997, the cases against Nur-in Ladjaalam and Ahmad Sailabbi y
Hajaraini were dismissed upon motion of the Office of the City Prosecutor, which had
conducted a reinvestigation of the cases as ordered by the lower court. The accused
were consequently released from jail.
The arraignment of appellant on all four (4) charges took place on January 6, 1998,
during which he entered a plea of not guilty. After pretrial, the assailed Decision was
rendered, the dispositive part of which reads:
"WHEREFORE, the Court finds accused WALPAN LADJAALAM y MIHAJIL a.k.a. ‘WARPAN’
"1. in Criminal Case No. 14636, GUILTY BEYOND REASONABLE DOUBT of Violation of
Section 15-A, Article III, of Republic Act No. 6425, otherwise known as the Dangerous
Drugs Act of 1972, as amended, and SENTENCES said accused to the penalty of
RECLUSION PERPETUA and to pay a fine of FIVE HUNDRED THOUSAND (₱500,000.00)
and to pay the costs;
"2. In Criminal Case No. 14637, NOT GUILTY of Violation of Section 16, Article III, in
relation to Section 21, Article IV, of Republic Act No. 6425, otherwise known as the
Dangerous Drugs Act of 1972, as amended, and ACQUITS him of said crime with costs
de oficio;
"3. in Criminal Case No. 14638, GUILTY BEYOND REASONABLE DOUBT of the crime of
Illegal Possession of Firearm and Ammunition penalized under Presidential Decree No.
1866, as amended by Republic Act. No. 8294, and SENTENCES said accused to suffer an
indeterminate penalty of SIX (6) YEARS of prision correccional as minimum to EIGHT (8)
YEARS of prision mayor as maximum and to pay a fine [of] THIRTY THOUSAND
(P30,000.00) and pay the costs;
"4. in Criminal Case No. 14639, GUILTY BEYOND REASONABLE DOUBT of the crime of
Direct Assault with Multiple Attempted Homicide and SENTENCES said accused to an
indeterminate penalty of TWO (2) YEARS and FOUR (4) MONTHS of prision correccional
as minimum to SIX (6) YEARS of prision correccional as maximum and to pay a fine of
ONE THOUSAND (P1,000.00) and to pay the costs." (emphasis in the original)
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Hence, this appeal.
The Facts
Prosecution’s Version
In its Brief, the Office of the Solicitor General presents the facts in this wise:
"At 1:45 p.m. of September 24, 1997, PO3 Allan Marcos Obut filed an application for the
issuance of a search warrant against appellant, his wife and some John Does (Exh. C).
After the search warrant was issued about 2:30 p.m. of the same day, a briefing was
conducted inside the office of the Anti-Vice/Narcotics Unit of the Zamboanga City Police
Office in connection with the service of the search warrant. The briefing was conducted
by SPO2 Felipe Gaganting, Chief of the Anti-Vice/Narcotics Unit. During the briefing, PO3
Renato Dela Peña was assigned as presentor of the warrant. SPO1 Ricardo
Lacastesantos and PO3 Enrique Rivera were designated to conduct the search. Other
policemen were assigned as perimeter guards (TSN, March 3, 1998, pp. 33-36).
"After the briefing, more than thirty (30) policemen headed by Police Superintendent
Edwin Soledad proceeded to the house of appellant and his wife at Rio Hondo on board
several police vehicles (TSN, March 4, 1998, p. 32; April 22, 1998, p. 54). Before they
could reach appellant’s house, three (3) persons sitting at a nearby store ran towards
the house shouting, ‘[P]olice, raid, raid’ (Ibid., March 3, 1998, pp. 41, 43-44; April 23,
1998, p. 4). When the policemen were about ten (10) meters from the main gate of the
house, they were met by a rapid burst of gunfire coming from the second floor of the
house. There was also gunfire at the back of the house (Ibid., March 5, 1998, pp. 14-
16).
"SPO1 Mirasol, SPO2 Lacastesantos, PO3 Rivera, and PO3 Dela Peña who were with the
first group of policemen saw appellant fire an M14 rifle towards them. They all knew
appellant. When they were fired upon, the group, together with SPO2 Gaganting, PO3
Obut and Superintendent Soledad, sought cover at the concrete fence to observe the
movements at the second floor of the house while other policemen surrounded the
house (Ibid., March 4, 1998, pp. 50-51).
"In front of the house was an extension building connected to the concrete fence (Ibid.,
pp. 45-46, 57-59, 73-76). Gaganting, Mirasol, Lacastesantos, Gregorio, and Obut
entered the door of the extension building. Gaganting opened the main (steel) gate of
the house. The other members of the team then entered. Lacastesantos and Mirasol
entered the house through the main door and went inside the sala of the ground floor
while other policemen surrounded the house. Two (2) old women were in the sala
together with a young girl and three (3) children. One of the old women took the
children to the second floor while the young girl remained seated at the corner (Ibid.,
pp. 19-21).
"Lacastesantos and Mirasol proceeded to the second floor where they earlier saw
appellant firing an M14 rifle at them through the window. While they were going
upstairs, appellant noticed their presence. He went inside the bedroom and, after
breaking and removing the jalousies, jumped from the window to the roof of a
neighboring house. Seeing this, Mirasol rushed downstairs and asked help from the
other members of the raiding team to arrest appellant. Lacastesantos went to the
second floor and shouted to the policemen outside not to fire in the direction of the
second floor because there were children. Mirasol and SPO1 Cesar Rabuya arrested
appellant at the back of his house after a brief chase (Ibid., pp. 21-23).
"At the second floor, Lacastesantos saw an M14 rifle (Exh. B-3) with magazine on top of
the sofa at the sala on the second floor (Ibid., P. 27). The rifle bore Serial No. 1555225.
He removed the magazine from the rifle and the bullet inside the chamber of the rifle.
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He counted seventeen (17) live ammunition inside the magazine. He saw two (2) more
M14 rifle magazines on the sofa, one with twenty (20) live ammunition (Exh. G-3) and
another with twenty-one (21) live ammunition (Exh. G-4). He likewise saw three (3)
M16 rifle magazines (Exh. G-2) in a corner at the second floor (TSN, March 5, 1998, pp.
23-32, 53-57).
"After Lacastesantos and Mirasol entered appellant’s house, Rivera, Dela Peña, Gregorio
and Obut followed and entered the house. After identifying themselves as members of
the PNP Anti-Vice/Narcotics Unit, Obut presented to the old women a copy of the search
warrant. Dela Peña and Rivera then searched appellant’s room on the ground floor in the
presence of Punong Barangay Elhano (TSN, March 3, 1998, pp. 41-43). On top of a table
was a pencil case (Exh. J) with fifty (50) folded aluminum foils inside (Exhs. J-1 to J-50),
each containing methamphetamine hydrochloride or ‘shabu’.
"Other items were found during the search, namely, assorted coins in different
denominations (Exh. W; TSN, April 28, 1998, pp. 23-25), one (1) homemade .38 caliber
revolver (Exh. B-2) with five (5) live [ammunition], one (1) M79 single rifle with [a]
pouch containing five (5) empty shells of an M79 rifle (Exh. B-4), and one (1) empty
shell of an M14 rifle (TSN, April 23, 1998, pp. 30-32).
"Rino Bartolome Locson was an informer of the Anti-Vice/Narcotics Unit of the
Zamboanga Police. [O]n the morning of September 24, 1997, he was instructed by SPO2
Gaganting to go to appellant’s house to buy ‘shabu.’ Locson knew appellant as a seller of
‘shabu’ (TSN, April 22, 1998, p. 5) and had been to appellant’s house about fifteen (15)
times before. He went to Rio Hondo and arrived at appellant’s house at 3:20 p.m. He
bought P300.00 worth of ‘shabu’ from appellant. The latter got three (3) decks of shabu
from his waist bag. Appellant instructed Locson to go behind the curtain where there
was a table. There were six (6) persons already smoking. There was a lighted kerosene
lamp made of a medicine bottle placed on the table. They asked Locson to smoke
‘shabu’ and Locson obliged. He placed the three (3) decks of ‘shabu’ he bought on the
table (Ibid., pp. 8-15).
"While they were smoking ‘shabu,’ Locson heard gunfire coming from appellant’s house.
They all stood and entered appellant’s compound but were instructed to pass [through]
the other side. They met appellant at the back of his house. Appellant told them to
escape ‘because the police are already here.’ They scampered and ‘ran away because
there were already shots.’ Locson jumped over the fence and ran towards the seashore.
Upon reaching a place near the Fisheries School, he took a tricycle and went home
(Ibid., pp. 17-19).
"The following day, September 25, 1997, he went to the police station and executed an
affidavit (Exh. M) narrating what transpired at appellant’s house [o]n the afternoon of
September 24, 1997.
"After the search and before returning to the police station, P03 Dela Peña prepared a
‘Receipt for Property Seized’ (Exh. P & 3) listing the properties seized during the search.
The receipt was signed by Dela Peña as the seizure officer, and by Punong Barangay
Hadji Hussin Elhano and radio reporter Jun Cayona as witnesses. A copy of the receipt
was given to appellant but he refused to acknowledge the properties seized (TSN, April
23, 1998, pp. 11-12).
"An examination conducted by Police Inspector Mercedes D. Diestro, Forensic Chemist of
the PNP Crime Laboratory Service Office 9, on the paraffin casts taken from both hands
of appellant yielded positive for gunpowder nitrates (Exh. A-3), giving rise to the
possibility that appellant had fired a gun before the examination (TSN, March 3, 1998, p.
11). Gunpowder residue examinations conducted on September 26, 1997 showed that
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the following firearms ‘were fired’ (Exh. B-5): a .38 caliber revolver (homemade) with
Serial No. 311092 (Exh. B-1), another .38 caliber revolver (homemade) without a serial
number (Exh. B-2), a Cal. 7.62 mm M14 U.S. rifle with Serial No. 1555225 (Exh. B-3),
and an M79 rifle without a serial number (Exh. B-4). They were fired within five (5) days
prior to the examination (TSN, March 3, 1998, pp. 16-21).
"With respect to the crystalline substances, an examination conducted by Police
Inspector Susan M. Cayabyab, likewise a Forensic Chemist of the PNP Crime Laboratory
Service Office 9, on the fifty (50) pieces of folded aluminum foils each containing white
crystalline granules with a total weight of 1.7426 grams (Exh. J-1 to J-50) yielded
positive results for the presence of methamphetamine hydrochloride (shabu) (Exh. L).
However, the examination of one (1) crystalline stone weighing 83.2674 grams (Exh. K)
yielded negative results for the presence of methamphetamine hydrochloride (Exh. L).
"The records of the Regional Operation and Plans Division of the PNP Firearm and
Explosive Section show that appellant ‘had not applied/filed any application for license to
possess firearm and ammunition or x x x been given authority to carry [a] firearm
outside of his residence’ (Exh. X)"
Defense’s Version
Appellant Ladjaalam agrees with the narration of facts given by the lower court. Hence,
we quote the pertinent parts of the assailed Decision:
"Accused Walpan Ladjaalam y Mihajil a.k.a. ‘Warpan’, 30 years old, married, gave his
occupation as ‘smuggling’ (tsn, p. 2, May 4, 1998). He used to go to Labuan in Malaysia
and bring cigarettes to the Philippines without paying taxes (tsn, pp. 40-41, id). He said
that his true name [was] Abdul Nasser Abdurakman and that Warpan or Walpan
Ladjaalam [was] only his ‘alias’. However, he admitted that more people kn[e]w him as
Walpan Ladjaalam rather than Abdul Nasser Abdurakman (tsn. pp. 39-40; 46-47, id). He
testified that [o]n the afternoon of September 24, 1997, when he was arrested by the
police, he was sleeping in the house of Dandao, a relative of his wife. He was alone. He
slept in Dandao’s house and not in his house because they ha[d] ‘a sort of a conference’
as Dandao’s daughter was leaving for Saudi Arabia. He noticed the presence of
policemen in his neighborhood at Aplaya, Rio Hondo when he heard shots. He woke up
and went out of the house and that was the time that he was arrested. He said he was
arrested ‘xxx [at] the other side of my house; at the other side of the fence where I was
sleeping. xxx. At the back of my house’ (tsn, p. 7, id.). He does not know who arrested
him ‘considering that the one who arrested me does not have nameplate.’ He was
arrested by four (4) persons. Not one of those who arrested him testified in Court. He
was handcuffed and placed inside a jeep parked at Rio Hondo Elementary School.
According to him, he did not fire a gun at the policemen from [t]he second floor of his
house. He said the ‘policemen’ [were] ‘the one[s] who fire[d] at us’ (tsn, p. 5, id.). If he
fired a gun at the policemen for sure they [would] die ‘[b]ecause the door is very near x
x x the vicinity of my house’. He does not own the M14 rifle (Exh. ‘B-3’) which according
to policemen, he used in firing at them. The gun does not belong to him. He does not
have a gun like that (tsn, p. 15, id.). A policeman also owns an M14 rifle but he does not
know the policeman (tsn, pp. 16-17, id). He said that the M79 rifle (Exh. ‘B-4’), the
three (3) empty M16 rifle magazines (Exh. ‘G’; ‘G-1’ to ‘G-2’), the two (2) M14
magazines with live ammunition (Exh. ‘G-3’; ‘G-4’); the two (2) caliber .38 revolvers
(Exhs. ‘B-1’; ‘B-2’), the fifty (50) aluminum foils each containing shabu (Exhs. ‘J-1’ to ‘J-
50’) placed inside a pencil case (Exh. ‘J’, the assorted coins placed inside a blue bag
(Exh. ‘W’) and the white crystalline stone (Exh. ‘K’) all do not belong to him. He said
that the policemen just produced those things as their evidence. The firearms do not
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belong to him. They were brought by the policemen (tsn, p. 43, May 4, 1998).
Regarding the blue bag containing assorted coins, he said: ‘that is not ours, I think this
(is) theirs, xxx they just brought that as their evidence’ (tsn, pp. 15-24, id.)
"Walpan Ladjaalam declared there were occupants who were renting his extension
house. He affirmed that he owns that house. Four (4) persons were staying in the
extension house. He could only recognize the husband whose name is Momoy. They are
from Jolo. They left the place already because they were afraid when the police raided
the place. (tsn, pp. 8-10, May 4, 1998). He does not know prosecution witness Rino
Locson y Bartolome. Although Locson recognized him, in his case he does not know
Locson and he does not recognize him (tsn, p.11, id). He did not sell anything to Locson
and did not entertain him. He is not selling shabu but he knows ‘for a fact that there are
plenty of person who are engaged in selling shabu in that place’, in that area known as
Aplaya, Rio Hondo. One of them is Hadji Agbi (tsn, pp.11-14, id).
"After his arrest Walpan Ladjaalam was brought to the police station where he stayed for
one day and one night before he was transferred to the City jail. While at the police
station, he was not able to take a bath. He smokes two packs of cigarette a day. While
he was at the police station, he smoked [a] cigarette given to him by his younger sister.
He lighted the cigarettes with [a] match. From the police station, he was brought to the
PNP Regional Office at R.T. Lim Boulevard where he was subject to paraffin examination
(tsn, pp. 24-26, May 4, 1998).
"During the raid conducted on his house, his cousin Boy Ladjaalam, Ating Sapadi, and
Jecar (Sikkal) Usman, the younger brother of his wife were killed. Walpan Ladjaalam
said that he saw that ‘it was the policeman who shot them[,] only I do not know his
name." They were killed at the back of his house. He said that no charges were filed
against the one responsible for their death (tsn, pp. 30-33- May 4, 1998).
"Anilhawa Ahamad, more or less 80 years old, a widow was in the house of Walpan
Ladjaalam whom he calls ‘Hadji Id’ at the time the police raided the house. She is the
mother of Ahma Sailabbi. She was together with Babo Dandan, two small children and a
helper when ‘soldiers’ entered the house. ‘(W)hen they arrived, they kept on firing (their
guns) even inside the house’ (tsn, p.5, May 5, 1998). They were armed with short and
long firearms. They searched the house and scattered things and got what they wanted.
They entered the room of Walpan Ladjaalam. They tried to open a bag containing
jewelry. When Anilhawa tried to bring the bag outside the room, they grabbed the bag
from her and poked a gun at her. At that time Walpan Ladjaalam was not in the house.
Ahamad Sailabbi was also not in the house. A Search Warrant was shown to Anilhawa
after the search was conducted and just before the policemen left the place. Anilhawa
Ahamad said that ‘it was already late in the afternoon[;] before they left that was the
time the Search Warrant (was) given to us by xxx Barangay Captain Hussin Elhano’ (tsn,
pp.6-8, May 5, 1998). Barangay Chairman Elhano arrived ‘already late in the afternoon,
almost sundown’ (tsn, p. 9, id). Anilhaw declared that aside from a bag containing
jewelry and a bag full of money, she had not seen anything else that was taken from
Walpan Ladjaalam’s house (tsn, pp. 9-12, id).
"Akmad (Ahmad) Sailabbi, 37 years old, married testified that about 4:00 o’clock [o]n
the afternoon of September 24, 1997, ha was standing in front of his house when
policemen arrived and immediately arrested him. He was about to go to the City Proper
to buy articles he was intending to bring to Sabah. He had ‘around P50,000.00’ placed
inside a waist bag tied around his waist. The policemen told him to lie down in prone
position and a policeman searched his back. They pulled his waist bag and took his
DiaStar wrist watch. He was shot three times and was hit on the forehead leaving a
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scar. His injury was not treated. He was taken to the police station where he was
detained for one day and one night. He was detained at the City Jail for three months
and five days after which he was released (tsn, pp. 25-29, May 5, 1998).
"Melba Usma, 20 years old, a widow, testified that [o]n the afternoon of September 24,
1997, she was in the house of her parents lying together with her husband Sikkal Usma.
There is only one house between her parents’ house and the house of Walpan
Ladjaalam. Her husband Sikkal Usman is the brother of Nur-in Ladjaalam, Walpan’s wife.
When Melba heard shots, she went downstairs. A policeman was looking for her
husband. The policeman called her husband. When her husband went down, he was
instructed by the policeman to lie down in prone position. Then the policeman shot her
husband. The policeman had two other companions who also shot her husband while he
was lying down in prone position (tsn, pp.2-7, May 5, 1998).
"Murkisa Usman, 30 years old, married, declared that [o]n the afternoon of September
24, 1997, she was sitting at the door of her house watching her children playing when a
motorcyle, driven by a person, stopped near her house. The driver was Gaganting whom
she called a soldier. He went down from his motorcycle, pulled a gun and poked it at
Murkisa. Murkisa stood up and raised her hands. She got her children and when she was
about to enter the room of her house, Gaganting again poked a gun at her and ‘there
was a shot.’ As a result of firing, three persons died, namely, Sikkal Usman, Boy
Ladjaalam and Atip Sapali Sali (tsn, pp. 8-10, May 5, 1998).
"Barangay Captain Hadji Hussin Elhano, 51 years old, testified that about 4:00 o ‘clock
[o]n the afternoon of September 24, 1997, he was fetched by two policemen at
Catabangan where he was attending a seminar. Because of traffic along the way, they
arrived at the Rio Hondo already late in the afternoon. He saw policemen were already
inside the house. Upon entering the gate, he saw Walpan at the gate already
handcuffed. Walpan called him but the police advised him not to approach Walpan. The
search was already over and things were already taken inside the house. When he went
inside the house, he saw ‘the things that they (policemen) searched, the firearms and
the shabu‘ (tsn, p. 17. May 8, 1998). He did not see the Search Warrant. What was
shown to him were the things recovered during the search which were being listed. They
were being counted and placed on a table. ‘Upon seeing the things that were recovered
during the search, I just signed the receipt (Exh. "P"; "P-1") of the things x x x taken
during the search" (tsn, pp. 17-18. May 8, 1998). He saw three dead bodies at the side
of the fence when he went to the other side of the house. The three persons were killed
outside the fence of Walpan Ladjaalam (tsn, p. 18, id)."
The Trial Court’s Ruling
The trial court observed that the house of appellant was raided on September 24, 1997
by virtue of Search Warrant No. 20 issued on the same day. However, the lower court
nullified the said Warrant because it had been issued for more than one specific offense,
in violation of Section 3, Rule 126 of the Rules of Court. The court a quo ruled:
"It should be stated at the outset that Search Warrant No. 20 is totally ‘null and void’
because it was issued for more than one specific offense x x x contrary to Section 3,
Rule 1[2]6 of the Rules of Court which provides that ‘A search warrant shall not issue
but upon probable cause in connection with one specific offense xxx’. In Tambasan vs.
People, 246 SCRA 184 (1995), the Supreme Court ruled that a search warrant for more
than one offense - a ‘scatter shot warrant’ - violates Section 3, Rule 126 of the [R]evised
Rules of Court and is ‘totally null and void.’" (emphasis in the original)
Nevertheless, the trial court deemed appellant’s arrest as valid. It emphasized that he
had shot at the officers who were trying to serve the void search warrant. This fact was
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established by the testimonies of several police officers, who were participants in the
raid, and confirmed by the laboratory report on the paraffin tests conducted on the
firearms and appellant. Additionally, the judge noted that Appellant Ladjaalam, based on
his statements in his Counter Affidavit, impliedly contradicted his assertions in open
court that there had been no exchange of gunfire during the raid. The trial court
concluded that the testimonies of these officers must prevail over appellant’s narration
that he was not in his house when the raid was conducted.
Prescinding from this point, the court a quo validated the arrest of appellant, reasoning
thus:
"Under the circumstances, the policemen ‘had authority to pursue and arrest Walpan
Ladjaalam and confiscate the firearm he used in shooting at the policemen and to enter
his house to effect said arrest and confiscation of the firearm.’ Under Rule 113, Section 5
(a), of the Rules of Court, ‘A peace officer or a private person may, without a warrant,
arrest a person xxx (w)hen in his presence, the person to be arrested has committed, is
actually committing, or is attempting to commit an offense.’ An offense is committed in
the presence or within the view of an officer, within the meaning of the rule authorizing
an arrest without a warrant, when the officer sees the offense, although at a distance, or
hears the disturbances created thereby and proceeds at once to the scene thereof. At
the time the policemen entered the house of accused Walpan Ladjaalam after he had
fired shots at the policemen who intended to serve the Search Warrant to him, the
accused was engaged in the commission of a crime, and was pursued and arrested after
he committed the crime of shooting at the policemen who were about to serve the
Search Warrant."
As a consequence of the legal arrest, the seizure of the following was also deemed valid:
the M14 rifle (with a magazine containing seventeen live ammunition) used by appellant
against the police elements, two M14 magazines, and three other M16 rifle magazines.
The trial court observed that these items were in "plain view" of the pursuing police
officers. Moreover, it added that these same items were "evidence [of] the commission
of a crime and/or contraband and therefore, subject to seizure" since appellant "had not
applied for a license to possess firearm and had not been given authority to carry
firearm outside his residence."
For being incredible and unsupported by evidence, appellant’s claim that the items that
were seized by the police officers had been planted was disbelieved by the trial court. It
ruled that if the police officers wanted to plant evidence to incriminate him, they could
have done so during the previous raids or those conducted after his arrest. To its mind,
it was unbelievable that they would choose to plant evidence, when they were
accompanied by the barangay chairman and a radio reporter who might testify against
them. It then dismissed these allegations, saying that frame-up, like alibi, was an
inherently weak defense.
The trial court also convicted the accused of the crime of maintaining a drug den. It
reasoned as follows:
"The testimony of Rino Bartolome Locson, corroborated by SPO1 Ricardo Lacastesantos
and SPO1 Amado Mirasol, Jr. clearly established that Walpan Ladjaalam operated and
maintained a drug den in his extension house where shabu or methamphetamine
hydrochloride, a regulated drug, was sold, and where persons or customers bought and
used shabu or methamphetamine hydrochloride by burning the said regulated drug and
sniffing its smoke with the use of an aluminum foil tooter. A drug den is a lair or
hideaway where prohibited or regulated drugs are used in any form or are found. Its
existence [may be] proved not only by direct evidence but may also be established by
8
proof of facts and circumstances, including evidence of the general reputation of the
house, or its general reputation among police officers. The uncorroborated testimony of
accused Walpan Ladjaalam a.k.a. Warpan’ that he did not maintain an extension house
or a room where drug users who allegedly buy shabu from him inhales or smokes shabu
cannot prevail over the testimonies of Locson, SPO1 Lacastesantos, and SPO1 Mirasol.
He admitted that he is the owner of the extension house but he alleged that there were
four (4) occupants who rented that extension house. He knew the name of only one of
the four occupants who are allegedly from Jolo, a certain Momoy, the husband. Aside
from being uncorroborated, Walpan’s testimony was not elaborated by evidence as to
when or for how long was the extension house rented, the amount of rental paid, or by
any other document showing that the extension house was in fact rented. The defense
of denial put up by accused Walpan Ladjaalam a.k.a. 'Warpan’ is a weak defense. Denial
is the weakest defense and cannot prevail over the positive and categorical testimonies
of the prosecution witnesses. Denials, if unsubstantiated by clear and convincing
evidence, are negative and self-serving evidence which deserve no weight in law and
cannot be given evidentiary weight over the testimony of credible witnesses who testify
on affirmative matters. As between the positive declaration of the prosecution witnesses
and the negative statements of the accused, the former deserve more credence."
In conclusion, the trial court explained appellant’s liability in this manner:
"x x x. The act of the accused in firing an M14 rifle to the policemen who were about to
enter his house to serve a search warrant constitutes the crime of direct assault with
multiple attempted homicide[,] not multiple attempted murder with direct assault[,]
considering that no policeman was hit and injured by the accused and no circumstance
was proved to qualify the attempted killing to attempted murder.
"The accused Walpan Ladjaalam a.k.a. ‘Warpan’ cannot be held liable [for] the crime of
Violation of Section 16, Article III, in relation to Section 21, Article IV, of Republic Act
6425 otherwise known as the Dangerous Drugs Act of 1992, as amended, because the
fifty (50) pieces of folded aluminum foils having a total weight of 1.7426 grams all
containing methamphetamine hydrochloride or shabu allegedly found in his house are
inadmissible as evidence against him considering that they were seized after [a] search
conducted by virtue of Search Warrant No. 20 which is totally null and void as it was
issued for more than one offense, and were not found in ‘plain view’ of the police officers
who seized them. Neither could the accused be held liable for illegal possession of
firearms and ammunition except for the (1) M14 rifle with Serial Number 1555225 and
with magazine containing fifteen (15) live ammunition and two more M14 rifle
magazines with twenty (20) and twenty-one (21) live ammunition respectively
considering that the policemen who recovered or seized the other firearms and
ammunition did not testify in court. The blue bag containing assorted coins cannot be
returned to the accused Walpan Ladjaalam a.k.a. ‘Warpan’ because according to the
accused the blue bag and assorted coins do not belong to him[;] instead the said
assorted coins should be turned over to the National Treasury."
The Issues
In his Brief, appellant submits the following Assignment of Errors:
I
"The trial court erred when it concluded that appellant Walpan Ladjaalam y Mihajil [had]
fired first at the police officers who went to his house to serve a search warrant upon
him which led to an exchange of fire between Ladjaalam and the police officer.
II
9
"The trial court erred when it denied the appellant the right and opportunity for an
ocular inspection of the scene of the firefight and where the house of the appellant [was]
located.
III
"The trial court erred when it ruled that the presumption of regularity in the performance
of their duties [excluded] the claim of the appellant that the firearms and
methamphetamine hydrochloride (i.e. shabu) were planted by the police."
In the interest of simplicity, we shall take up these issues seriatim: (a) denial of the
request for ocular inspection, (b) credibility of the prosecution witnesses, and (c) the
defense of frame-up. In addition, we shall also discuss the proper crimes and penalties
to be imposed on appellant.
The Court’s Ruling
The appeal has no merit.
First Issue: Denial of Request for Ocular Inspection
Appellant insists that the trial court erred in denying his request for an ocular inspection
of the Ladjaalam residence. He argues that an ocular inspection would have afforded the
lower court "a better perspective and an idea with respect to the scene of the crime."
We do not agree.
We fail to see the need for an ocular inspection in this case, especially in the light of the
clear testimonies of the prosecution witnesses. We note in particular that the defense
had even requested SPO1 Amado Mirasol Jr. to sketch the subject premises to give the
lower court a fairly good idea of appellant’s house. Viewing the site of the raid would
have only delayed the proceedings. Moreover, the question whether to view the setting
of a relevant event has long been recognized to be within the discretion of the trial
judge. Here, there is no reason to disturb the exercise of that discretion.
Second Issue: Credibility of Prosecution Witnesses
Appellant, in essence, questions the credibility of the prosecution witnesses. Suffice it to
state that the trial court’s assessment of their credibility is generally accorded respect,
even finality. After carefully examining the records and finding no material
inconsistencies to support appellant’s claim, we cannot exempt this case from the
general rule. Quite the contrary, the testimonies of these witnesses positively showed
that appellant had fired upon the approaching police elements, and that he had
subsequently attempted to escape. SPO1 Amado Mirasol Jr. testified thus:
"PROSECUTOR NUVAL:
Q: And, this trail is towards the front of the house of the accused?
A: Yes.
Q: And it’s there where you were met by a volley of fire?
A: Yes, Your Honor.
COURT:
Q: How far were you from the concrete fen[c]e when you were met by a volley of fire?
... You said you were fired upon?
A: More or less, five (5) meters.
xxx xxx xxx
PROSECUTOR NUVAL:
Q: Now, you said you were able to enter the house after the gate was opened by your
colleague Felipe Gaganting ... I will reform that question.
Q: Who opened the gate Mr. Witness?
A: SPO2 Felipe Gaganting, Efren Gregorio and Allan Marcos Obut.
Q: And, at that time you were hiding at the concrete fence?
10
A: Yes.
Q: Now, when this gate was opened, you said you went inside the house, right?
A: Yes.
Q: What did you see inside the house?
A: I, together with SPO1 Ricardo Lacastesantos, entered the main door of the house of
Walfran [sic] Ladjaalam at the ground floor. We went inside the sala on the ground floor
of his house[;] I saw two old woman.
xxx xxx xxx
PROSECUTOR NUVAL:
Q: Now, what did you do with these two old women?
A: I did not mind those two old women because those two women were sitting on the
ground floor. I was concentrating on the second floor because Ladjaalam was firing
towards our group so, I, together with Ricardo Lacastesantos, went upstairs to the
second floor of the house.
Q: Were you able to go to the second floor of the house?
A: Yes.
Q: What happened when you were already on the second floor?
A: While we were proceeding to the second floor, Walfan [sic] Ladjaalam, noticed our
presence and immediately went inside the bedroom [o]n the second floor and he went
immediately and jumped from the window of his house x x x leading to the roof of the
neighbor’s house.
xxx xxx xxx
COURT:
Reform. That is leading
Q: What happened when you entered and he jumped to the roofing of the neighbor’s
house?
A: Immediately, I myself, we immediately went downstairs and asked the assistance of
the members of the raiding team to arrest Walfan Ladjaalam.
xxx xxx xxx
PROSECUTOR NUVAL:
Q: Were you able to go down?
A: Yes.
Q: What happened when you were there?
A: We immediately went out and I asked the assistance of the members of the raiding
team and the investigator of the unit especially SPO1 Cesar Rabuya. I was able to
manage to arrest Walfan Ladjaalam."
What happened thereafter was narrated by Senior Police Officer Ricardo Lacastesantos,
as follows:
"Q: What did you notice [o]n the second floor?
A: I went where the firing came from, so, I saw [an] M14 rifle and I shouted from the
outside, ‘do not fire at the second floor because there [are] a lot of children here.’
Q: Now, that rifle you said [was an] M14, where did you find this?
A: At the sala set.
Q: This sala set where is this located?
A: Located [on] the second floor of the house.
Q: Is there a sala [o]n the second floor?
A: Yes.
Q: Can you still identify that M14 rifle which you said you recovered from the sale set?
A: Yes.
11
Q: Why can you identify that?
A: The Serial No. of M14 is 1555225 and I marked it with my initial.
Q: Now, I have here M14 rifle[;] will you please tell us where is the Serial No. of this?
A: 1555225 and I put my initial, RJL.
FISCAL NUVAL:
This is already marked as our Exhibit ‘B-3’ with magazine, one magazine and seven
round [ammunition].
Q: After recovering this, what did you do with this firearm?
A: When I recovered it I removed the bullets inside the chamber[.] I removed the
magazine and I turned it over to the investigator.
Q: Where did you turn it over?
A: At the crime scene.
Q: Now, that magazine, can you still identify this?
A: Yes.
Q: Why?
A: I put x x x markings. x x x xxx xxx
COURT:
So, a[si]de from the magazine attached to the M14 rifle you found six more magazines?
A: Yes, so, all in all six magazines, three empty M16 rifle magazines and three M14.
Q: The M16 magazines [were] empty?
A: Empty.
Q: How about the M14?
A: Found with [ammunition]. x x x xxx xxx
Q: So, where are the three M16 magazines?
A: In the corner.
Q: What did you do with [these] three magazines of M16?
A: I turned [them] over to the investigator.
Q: Can you identify them?
A: Yes, because of my initials[.]
Q: Where are your initials?
A: On the magazines.
Q: RJL?
A: RJL."
These were confirmed by the results of the paraffin tests conducted on appellant and on
the weapons seized during the raid. Both of his hands as well as the weapons,
particularly the M-14 which he had used, were positive for gunpowder nitrate. Police
Inspector Mercedes Delfin-Diestro explained in open court:
"Q: Okay. Now, what was the result of your examination, Madam Witness?
A: The result of the examination [was] that both hands of the subject person, ha[d]
presence of gun powder nitrates.
Q: What do you mean Madam Witness, what does that indicate?
A: It indicates there is presence of powder nitrates.
Q: Can we conclude that he fired a gun?
A: I cannot conclude that he fired a gun because there are so many circumstances
[why] a person [would be] positive on his hands for gun powder nitrates.
Q: But, most likely, he fired a gun?
A: Yes. x x x xxx xxx
PROSECUTOR NUVAL:
12
Q: What about, Madam Witness this Exhibit ‘B-3’, which is the M14 rifle. What did you
do with this?
A: SPO3 Abu did the swabbing both in the chamber and the barrel wherein I observed
there [were] black and traces of brown residue on the bolt, chamber and in the barrel.
Q: And, that indicates Madam Witness...?
A: It indicates that the gun was fired.
Q: Recently?
A: Because of the traces of brown residue, it could be possible that the gun was fired
before the incident x x x.
COURT:
Q: There is also black residue?
A: Yes.
Q: What does it indicate?
A: It indicates that the firearm was recently fired.
Q: And, where is this swab used at the time of the swabbing of this Exhibit?
A: This one.
PROSECUTOR NUVAL:
May we ask that this be marked as Exhibit ‘B-3-A’.
COURT:
Q: The firing there indicates that the gun was recently fired, during the incident?
A: Yes.
Q: And also before the incident it was fired because of the brown residue?
A: Yes, Your Honor." (emphasis supplied)
Duly proven from the foregoing were the two elements of the crime of illegal possession
of firearms. Undoubtedly, the established fact that appellant had fired an M-14 rifle upon
the approaching police officers clearly showed the existence of the firearm or weapon
and his possession thereof. Sufficing to satisfy the second element was the prosecution’s
Certification stating that he had not filed any application for license to possess a firearm,
and that he had not been given authority to carry any outside his residence. Further, it
should be pointed out that his possession and use of an M-14 rifle were obviously
unauthorized because this weapon could not be licensed in favor of, or carried by, a
private individual.
Third Issue: Defense of Frame-up
From the convoluted arguments strewn before us by appellant, we gather that the main
defense he raises is frame-up. He claims that the items seized from his house were
"planted," and that the entire Zamboanga police force was out to get him at all cost.
This Court has invariably held that the defense of frame-up is inherently weak, since it is
easy to fabricate, but terribly difficult to disprove. Absent any showing of an improper
motive on the part of the police officers, coupled with the presumption of regularity in
the performance of their duty, such defense cannot be given much credence. Indeed,
after examining the records of this case, we conclude that appellant has failed to
substantiate his claim. On the contrary, his statements in his Counter Affidavit are
inconsistent with his testimony during the trial. He testified thus:
"Q Now, Mr. Witness, do you remember having executed an Affidavit/ a Counter-
Affidavit?
A I could not remember.
Q I have here a Counter-Affidavit and it was signed before this representation on the 8th
day of December 1997[;] tell us whose signature is this appearing above the typewritten
name
13
FISCAL NUVAL:
Q . . . . Walpan Ladjaalam, whose signature is this?
(Showing)
A Yes, Sir. This is mine.
Q Now, in paragraph[s] 1,2,3,4,5,6,7 and 8; you stated in this Counter-Affidavit which I
quote: ‘that I was resting and sleeping when I heard the gunshots and I noticed that the
shots were directed towards our house.. and I inspected and x x x we were attacked by
armed persons.. and I was apprehended by the persons who attacked x x x our house’;
[the] house you are referring to [in] this paragraph, whose house [are you] referring to,
is this [what] you are referring to [as] your house or the house of your neighbors [from]
which you said you heard gunshots?
A Our house.
Q Now, in paragraph 6 of your Counter-Affidavit you stated and I quote: ‘that [o]n that
afternoon of September 24, 1997, I was at home in my house Aplaya, Riohondo, Bo.
Campo Muslim, my companions in my house [were] the two old women and my
children, is this correct?
A They were not there.
Q Now, in that statement Mr. Witness, you said that you were at home in [your] house
at Aplaya, Riohondo, Bo. Campo Muslim[;] which is which now, you were in your house
or you were in your neighbors[‘] house at that time when you heard gunshots?
A I was in the house near my house.
Q So, your statement particularly paragraph 6 of your Counter-Affidavit that you were at
home in [your] house at Aplaya Riohondo Bo. Campo Muslim, is x x x not correct?
A Yes, Sir. This is not correct."
Crime and Punishment
The trial court convicted appellant of three crimes: (1) maintenance of a drug den, (2)
direct assault with attempted homicide, and (3) illegal possession of firearms. We will
discuss each of these.
Maintenance of a Drug Den
We agree with the trial court that appellant was guilty of maintenance of a drug den, an
offense for which he was correctly sentenced to reclusion perpetua. His guilt was clearly
established by the testimony of Prosecution Witness Rino Bartolome Locson, who himself
had used the extension house of appellant as a drug den on several occasions, including
the time of the raid. The former’s testimony was corroborated by all the raiding police
officers who testified before the court. That appellant did not deny ownership of the
house and its extension lent credence to the prosecution’s story.
Direct Assault with Multiple Attempted Homicide
The trial court was also correct in convicting appellant of direct assault55 with multiple
counts of attempted homicide. It found that "[t]he act of the accused [of] firing an M14
rifle [at] the policemen[,] who were about to enter his house to serve a search warrant x
x x" constituted such complex crime.
We note that direct assault with the use of a weapon carries the penalty of prision
correccional in its medium and maximum periods, while attempted homicide carries the
penalty of prision correccional. Hence, for the present complex crime, the penalty for
direct assault, which constitutes the "most serious crime," should be imposed and
applied in its maximum period.
Illegal Possession of Firearms
Aside from finding appellant guilty of direct assault with multiple attempted homicide,
the trial court convicted him also of the separate offense of illegal possession of firearms
14
under PD 1866, as amended by RA 8294, and sentenced him to 6 years of prision
correccional to 8 years of prision mayor.
The Office of the Solicitor General (OSG) disagrees, on the ground that the trial court
should not have applied the new law. It contends that under the facts of the case, the
applicable law should have been PD 1866, as worded prior to its amendment by RA
8294.
The trial court’s ruling and the OSG’s submission exemplify the legal community’s
difficulty in grappling with the changes brought about by RA 8294. Hence, before us now
are opposing views on how to interpret Section 1 of the new law, which provides as
follows:
"SECTION 1. Section 1 of Presidential Decree No. 1866, as amended, is hereby further
amended to read as follows:
"Section 1. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of
Firearms or Ammunition Instruments Used or Intended to be Used in the Manufacture of
Firearms or Ammunition. -- The penalty of prision correccional in its maximum period
and a fine of not less than Fifteen thousand pesos (₱15,000) shall be imposed upon any
person who shall unlawfully manufacture, deal in, acquire, dispose, or possess any low
powered firearm, such as rimfire handgun, .380 or .32 and other firearm of similar
firepower, part of firearm, ammunition, or machinery, tool or instrument used or
intended to be used in the manufacture of any firearm or ammunition: Provided, That no
other crime was committed.
"The penalty of prision mayor in its minimum period and a fine of Thirty thousand pesos
(₱30,000) shall be imposed if the firearm is classified as high powered firearm which
includes those with bores bigger in diameter than .30 caliber and 9 millimeter such as
caliber .40, .41, .44, .45 and also lesser calibered firearms but considered powerful such
as caliber .357 and caliber .22 centerfire magnum and other firearms with firing
capability of full automatic and by burst of two or three: Provided, however, That no
other crime was committed by the person arrested.
"If homicide or murder is committed with the use of an unlicensed firearm, such use of
an unlicensed firearm shall be considered as an aggravating circumstance.
"If the violation of this Section is in furtherance of or incident to, or in connection with
the crime of rebellion or insurrection, sedition, or attempted coup d’etat, such violation
shall be absorbed as an element of the crime of rebellion or insurrection, sedition, or
attempted coup d’etat.
"The same penalty 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 or willfully or knowingly allow any of them to use
unlicensed firearms or firearms without any legal authority to be carried outside of their
residence in the course of their employment.
"The penalty of arresto mayor shall be imposed upon any person who shall carry any
licensed firearm outside his residence without legal authority therefor."
Citing People v. Jayson, the OSG argues that the foregoing provision does not cover the
specific facts of this case. Since another crime -- direct assault with multiple unlawful
homicide -- was committed, appellant cannot be convicted of simple illegal possession of
firearms under the second paragraph of the aforecited provision. Furthermore, since
there was no killing in this case, illegal possession cannot be deemed as an aggravating
circumstance under the third paragraph of the provision. Based on these premises, the
15
OSG concludes that the applicable law is not RA 8294, but PD 1866 which, as worded
prior the new law, penalizes simple illegal possession of firearms even if another crime is
committed at the same time.
Applying a different interpretation, the trial court posits that appellant should be
convicted of illegal possession of firearms, in addition to direct assault with multiple
attempted homicide. It did not explain its ruling, however. Considering that it could not
have been ignorant of the proviso61 in the second paragraph, it seemed to have
construed "no other crime" as referring only to homicide and murder, in both of which
illegal possession of firearms is an aggravating circumstance. In other words, if a crime
other than murder or homicide is committed, a person may still be convicted of illegal
possession of firearms. In this case, the other crime committed was direct assault with
multiple attempted homicide; hence, the trial court found appellant guilty of illegal
possession of firearms.
We cannot accept either of these interpretations because they ignore the plain language
of the statute. A simple reading thereof shows that if an unlicensed firearm is used in
the commission of any crime, there can be no separate offense of simple illegal
possession of firearms. Hence, if the "other crime" is murder or homicide, illegal
possession of firearms becomes merely an aggravating circumstance, not a separate
offense. Since direct assault with multiple attempted homicide was committed in this
case, appellant can no longer be held liable for illegal possession of firearms.
Moreover, penal laws are construed liberally in favor of the accused. In this case, the
plain meaning of RA 8294’s simple language is most favorable to herein appellant.
Verily, no other interpretation is justified, for the language of the new law demonstrates
the legislative intent to favor the accused. Accordingly, appellant cannot be convicted of
two separate offenses of illegal possession of firearms and direct assault with attempted
homicide. Moreover, since the crime committed was direct assault and not homicide or
murder, illegal possession of firearms cannot be deemed an aggravating circumstance.
We reject the OSG’s contention that PD 1866, as worded prior to its amendment by RA
8294, should be applied in this case.1âwphi1 When the crime was committed on
September 24, 1997, the original language of PD 1866 had already been expressly
superseded by RA 8294 which took effect on July 6, 1997. In other words, no longer in
existence was the earlier provision of PD 1866, which justified a conviction for illegal
possession of firearms separate from any other crime. It was replaced by RA 8294
which, among other amendments to PD 1866, contained the specific proviso that "no
other crime was committed."
Furthermore, the OSG’s reliance on People v. Jayson is misplaced. True, this Court
sustained the conviction of appellant for illegal possession of firearms, although he had
also committed homicide. We explained, however, that "the criminal case for homicide
[was] not before us for consideration."
Just as unacceptable is the interpretation of the trial court. We find no justification for
limiting the proviso in the second paragraph to murder and homicide. The law is clear:
the accused can be convicted of simple illegal possession of firearms, provided that "no
other crime was committed by the person arrested." If the intention of the law in the
second paragraph were to refer only to homicide and murder, it should have expressly
said so, as it did in the third paragraph. Verily, where the law does not distinguish,
neither should we.
The Court is aware that this ruling effectively exonerates appellant of illegal possession
of an M-14 rifle, an offense which normally carries a penalty heavier than that for direct
assault. While the penalty for the first is prision mayor, for the second it is only prision
16
correccional. Indeed, the accused may evade conviction for illegal possession of firearms
by using such weapons in committing an even lighter offense, like alarm and scandal or
slight physical injuries, both of which are punishable by arresto menor. This
consequence, however, necessarily arises from the language of RA 8294, whose wisdom
is not subject to the Court’s review. Any perception that the result reached here appears
unwise should be addressed to Congress. Indeed, the Court has no discretion to give
statutes a new meaning detached from the manifest intendment and language of the
legislature. Our task is constitutionally confined only to applying the law and
jurisprudence to the proven facts, and we have done so in this case.
WHEREFORE, the appealed Decision is hereby AFFIRMED with the MODIFICATION that
appellant is found guilty only of two offenses: (1) direct assault and multiple attempted
homicide with the use of a weapon, for which he is sentenced to 2 years and 4 months
to 6 years of prision correccional; and (2) maintaining a drug den, for which he was
correctly sentenced by the trial court to reclusion perpetua. Costs against appellant.
Let a copy of this Decision be furnished the Congress of the Philippines for a possible
review, at its sound discretion, of RA 8294.
SO ORDERED.
x-----------------------------------------------------------------------------------------------x
USE OF “INFORMATION AND COMMUNICATION TECHNOLOGY” AS A
QUALIFYING AGGRAVATING CIRCUMSTANCE
G.R. No. 203335 February 11, 2014
JOSE JESUS M. DISINI, JR., ROWENA S. DISINI, LIANNE IVY P. MEDINA,
JANETTE TORAL and ERNESTO SONIDO, JR., Petitioners, vs. THE SECRETARY OF
JUSTICE, THE SECRETARY OF THE DEPARTMENT OF THE INTERIOR AND LOCAL
GOVERNMENT, THE EXECUTIVE DIRECTOR OF THE INFORMATION AND
COMMUNICATIONS TECHNOLOGY OFFICE, THE CHIEF OF THE PHILIPPINE
NATIONAL POLICE and THE DIRECTOR OF THE NATIONAL BUREAU OF
INVESTIGATION, Respondents.
x-----------------------x
G.R. No. 203299
LOUIS "BAROK" C. BIRAOGO, Petitioner, vs. NATIONAL BUREAU OF
INVESTIGATION and PHILIPPINE NATIONAL POLICE, Respondents.
x-----------------------x
G.R. No. 203306
ALAB NG MAMAMAHAYAG (ALAM), HUKUMAN NG MAMAMAYAN MOVEMENT,
INC., JERRY S. YAP, BERTENI "TOTO" CAUSING, HERNANI Q. CUARE, PERCY
LAPID, TRACY CABRERA, RONALDO E. RENTA, CIRILO P. SABARRE, JR., DERVIN
CASTRO, ET AL., Petitioners, vs. OFFICE OF THE PRESIDENT, represented by
President Benigno Simeon Aquino III, SENATE OF THE PHILIPPINES, and
HOUSE OF REPRESENTATIVES, Respondents.
x-----------------------x
G.R. No. 203359
SENATOR TEOFISTO DL GUINGONA III, Petitioner, vs. EXECUTIVE SECRETARY,
THE SECRETARY OF JUSTICE, THE SECRETARY OF THE DEPARTMENT OF
INTERIOR AND LOCAL GOVERNMENT, THE CHIEF OF THE PHILIPPINE
NATIONAL POLICE, and DIRECTOR OF THE NATIONAL BUREAU OF
INVESTIGATION, Respondents.
x-----------------------x
G.R. No. 203378
17
ALEXANDER ADONIS, ELLEN TORDESILLAS, MA. GISELA ORDENES-CASCOLAN,
H. HARRY L. ROQUE, JR., ROMEL R. BAGARES, and GILBERT T. ANDRES,
Petitioners, vs. THE EXECUTIVE SECRETARY, THE DEPARTMENT OF BUDGET
AND MANAGEMENT, THE DEPARTMENT OF JUSTICE, THE DEPARTMENT OF THE
INTERIOR AND LOCAL GOVERNMENT, THE NATIONAL BUREAU OF
INVESTIGATION, THE PHILIPPINE NATIONAL POLICE, AND THE INFORMATION
AND COMMUNICATIONS TECHNOLOGY OFFICE-DEPARTMENT OF SCIENCE AND
TECHNOLOGY, Respondents.
x-----------------------x
G.R. No. 203391
HON. RAYMOND V. PALATINO, HON. ANTONIO TINIO, VENCER MARI
CRISOSTOMO OF ANAKBAYAN, MA. KATHERINE ELONA OF THE PHILIPPINE
COLLEGIAN, ISABELLE THERESE BAGUISI OF THE NATIONAL UNION OF
STUDENTS OF THE PHILIPPINES, ET AL., Petitioners, vs.
PAQUITO N. OCHOA, JR., in his capacity as Executive Secretary and alter-ego of
President Benigno Simeon Aquino III, LEILA DE LIMA in her capacity as
Secretary of Justice, Respondents.
x-----------------------x
G.R. No. 203407
BAGONG ALYANSANG MAKABAYAN SECRETARY GENERAL RENATO M. REYES,
JR., National Artist BIENVENIDO L. LUMBERA, Chairperson of Concerned Artists
of the Philippines, ELMER C. LABOG, Chairperson of Kilusang Mayo Uno,
CRISTINA E. PALABAY, Secretary General of Karapatan, FERDINAND R. GAITE,
Chairperson of COURAGE, JOEL B. MAGLUNSOD, Vice President of Anakpawis
Party-List, LANA R. LINABAN, Secretary General Gabriela Women's Party,
ADOLFO ARES P. GUTIERREZ, and JULIUS GARCIA MATIBAG, Petitioners, vs.
BENIGNO SIMEON C. AQUINO III, President of the Republic of the Philippines,
PAQUITO N. OCHOA, JR., Executive Secretary, SENATE OF THE PHILIPPINES,
represented by SENATE PRESIDENT JUAN PONCE ENRILE, HOUSE OF
REPRESENTATIVES, represented by SPEAKER FELICIANO BELMONTE, JR., LEILA
DE LIMA, Secretary of the Department of Justice, LOUIS NAPOLEON C.
CASAMBRE, Executive Director of the Information and Communications
Technology Office, NONNATUS CAESAR R. ROJAS, Director of the National
Bureau of Investigation, D/GEN. NICANOR A. BARTOLOME, Chief of the
Philippine National Police, MANUEL A. ROXAS II, Secretary of the Department
of the Interior and Local Government, Respondents.
x-----------------------x
G.R. No. 203440
MELENCIO S. STA. MARIA, SEDFREY M. CANDELARIA, AMPARITA STA. MARIA,
RAY PAOLO J. SANTIAGO, GILBERT V. SEMBRANO, and RYAN JEREMIAH D.
QUAN (all of the Ateneo Human Rights Center), Petitioners, vs.
HONORABLE PAQUITO OCHOA in his capacity as Executive Secretary,
HONORABLE LEILA DE LIMA in her capacity as Secretary of Justice,
HONORABLE MANUEL ROXAS in his capacity as Secretary of the Department of
Interior and Local Government, The CHIEF of the Philippine National Police, The
DIRECTOR of the National Bureau of Investigation (all of the Executive
Department of Government), Respondents.
x-----------------------x
G.R. No. 203453
18
NATIONAL UNION OF JOURNALISTS OF THE PHILIPPINES (NUJP), PHILIPPINE
PRESS INSTITUTE (PPI), CENTER FOR MEDIA FREEDOM AND RESPONSIBILITY,
ROWENA CARRANZA PARAAN, MELINDA QUINTOS-DE JESUS, JOSEPH ALWYN
ALBURO, ARIEL SEBELLINO AND THE PETITIONERS IN THE e-PETITION
http://www.nujp.org/no-to-ra10175/, Petitioners, vs.
THE EXECUTIVE SECRETARY, THE SECRETARY OF JUSTICE, THE SECRETARY OF
THE INTERIOR AND LOCAL GOVERNMENT, THE SECRETARY OF BUDGET AND
MANAGEMENT, THE DIRECTOR GENERAL OF THE PHILIPPINE NATIONAL
POLICE, THE DIRECTOR OF THE NATIONAL BUREAU OF INVESTIGATION, THE
CYBERCRIME INVESTIGATION AND COORDINATING CENTER, AND ALL
AGENCIES AND INSTRUMENTALITIES OF GOVERNMENT AND ALL PERSONS
ACTING UNDER THEIR INSTRUCTIONS, ORDERS, DIRECTION IN RELATION TO
THE IMPLEMENTATION OF REPUBLIC ACT NO. 10175, Respondents.
x-----------------------x
G.R. No. 203454
PAUL CORNELIUS T. CASTILLO & RYAN D. ANDRES, Petitioners, vs.
THE HON. SECRETARY OF JUSTICE THE HON. SECRETARY OF INTERIOR AND
LOCAL GOVERNMENT, Respondents.
x-----------------------x
G.R. No. 203469
ANTHONY IAN M. CRUZ; MARCELO R. LANDICHO; BENJAMIN NOEL A. ESPINA;
MARCK RONALD C. RIMORIN; JULIUS D. ROCAS; OLIVER RICHARD V. ROBILLO;
AARON ERICK A. LOZADA; GERARD ADRIAN P. MAGNAYE; JOSE REGINALD A.
RAMOS; MA. ROSARIO T. JUAN; BRENDALYN P. RAMIREZ; MAUREEN A.
HERMITANIO; KRISTINE JOY S. REMENTILLA; MARICEL O. GRAY; JULIUS IVAN
F. CABIGON; BENRALPH S. YU; CEBU BLOGGERS SOCIETY, INC. PRESIDENT
RUBEN B. LICERA, JR; and PINOY EXPAT/OFW BLOG AWARDS, INC.
COORDINATOR PEDRO E. RAHON; Petitioners, vs.
HIS EXCELLENCY BENIGNO S. AQUINO III, in his capacity as President of the
Republic of the Philippines; SENATE OF THE PHILIPPINES, represented by HON.
JUAN PONCE ENRILE, in his capacity as Senate President; HOUSE OF
REPRESENTATIVES, represented by FELICIANO R. BELMONTE, JR., in his
capacity as Speaker of the House of Representatives; HON. PAQUITO N.
OCHOA, JR., in his capacity as Executive Secretary; HON. LEILA M. DE LIMA, in
her capacity as Secretary of Justice; HON. LOUIS NAPOLEON C. CASAMBRE, in
his capacity as Executive Director, Information and Communications
Technology Office; HON. NONNATUS CAESAR R. ROJAS, in his capacity as
Director, National Bureau of Investigation; and P/DGEN. NICANOR A.
BARTOLOME, in his capacity as Chief, Philippine National Police, Respondents.
x-----------------------x
G.R. No. 203501
PHILIPPINE BAR ASSOCIATION, INC., Petitioner, vs.
HIS EXCELLENCY BENIGNO S. AQUINO III, in his official capacity as President
of the Republic of the Philippines; HON. PAQUITO N. OCHOA, JR., in his official
capacity as Executive Secretary; HON. LEILA M. DE LIMA, in her official capacity
as Secretary of Justice; LOUIS NAPOLEON C. CASAMBRE, in his official capacity
as Executive Director, Information and Communications Technology Office;
NONNATUS CAESAR R. ROJAS, in his official capacity as Director of the National
19
Bureau of Investigation; and DIRECTOR GENERAL NICANOR A. BARTOLOME, in
his official capacity as Chief of the Philippine National Police, Respondents.
x-----------------------x
G.R. No. 203509
BAYAN MUNA REPRESENTATIVE NERI J. COLMENARES, Petitioner, vs.
THE EXECUTIVE SECRETARY PAQUITO OCHOA, JR., Respondent.
x-----------------------x
G.R. No. 203515
NATIONAL PRESS CLUB OF THE PHILIPPINES, INC. represented by BENNY D.
ANTIPORDA in his capacity as President and in his personal capacity,
Petitioner, vs.
OFFICE OF THE PRESIDENT, PRES. BENIGNO SIMEON AQUINO III,
DEPARTMENT OF JUSTICE, DEPARTMENT OF INTERIOR AND LOCAL
GOVERNMENT, PHILIPPINE NATIONAL POLICE, NATIONAL BUREAU OF
INVESTIGATION, DEPARTMENT OF BUDGET AND MANAGEMENT AND ALL OTHER
GOVERNMENT INSTRUMENTALITIES WHO HAVE HANDS IN THE PASSAGE
AND/OR IMPLEMENTATION OF REPUBLIC ACT 10175, Respondents.
x-----------------------x
G.R. No. 203518
PHILIPPINE INTERNET FREEDOM ALLIANCE, composed of DAKILA-PHILIPPINE
COLLECTIVE FOR MODERN HEROISM, represented by Leni Velasco, PARTIDO
LAKAS NG MASA, represented by Cesar S. Melencio, FRANCIS EUSTON R.
ACERO, MARLON ANTHONY ROMASANTA TONSON, TEODORO A. CASIÑO, NOEMI
LARDIZABAL-DADO, IMELDA ORALES, JAMES MATTHEW B. MIRAFLOR, JUAN
G.M. RAGRAGIO, MARIA FATIMA A. VILLENA, MEDARDO M. MANRIQUE, JR.,
LAUREN DADO, MARCO VITTORIA TOBIAS SUMAYAO, IRENE CHIA, ERASTUS
NOEL T. DELIZO, CRISTINA SARAH E. OSORIO, ROMEO FACTOLERIN, NAOMI L.
TUPAS, KENNETH KENG, ANA ALEXANDRA C. CASTRO, Petitioners, vs.
THE EXECUTIVE SECRETARY, THE SECRETARY OF JUSTICE, THE SECRETARY OF
INTERIOR AND LOCAL GOVERNMENT, THE SECRETARY OF SCIENCE AND
TECHNOLOGY, THE EXECUTIVE DIRECTOR OF THE INFORMATION TECHNOLOGY
OFFICE, THE DIRECTOR OF THE NATIONAL BUREAU OF INVESTIGATION, THE
CHIEF, PHILIPPINE NATIONAL POLICE, THE HEAD OF THE DOJ OFFICE OF
CYBERCRIME, and THE OTHER MEMBERS OF THE CYBERCRIME INVESTIGATION
AND COORDINATING CENTER, Respondents.
DECISION
ABAD, J.:
These consolidated petitions seek to declare several provisions of Republic Act (R.A.)
10175, the Cybercrime Prevention Act of 2012, unconstitutional and void.
The Facts and the Case
The cybercrime law aims to regulate access to and use of the cyberspace. Using his
laptop or computer, a person can connect to the internet, a system that links him to
other computers and enable him, among other things, to:
1. Access virtual libraries and encyclopedias for all kinds of information that he needs for
research, study, amusement, upliftment, or pure curiosity;
2. Post billboard-like notices or messages, including pictures and videos, for the general
public or for special audiences like associates, classmates, or friends and read postings
from them;
3. Advertise and promote goods or services and make purchases and payments;
20
4. Inquire and do business with institutional entities like government agencies, banks,
stock exchanges, trade houses, credit card companies, public utilities, hospitals, and
schools; and
5. Communicate in writing or by voice with any person through his e-mail address or
telephone.
This is cyberspace, a system that accommodates millions and billions of simultaneous
and ongoing individual accesses to and uses of the internet. The cyberspace is a boon to
the need of the current generation for greater information and facility of communication.
But all is not well with the system since it could not filter out a number of persons of ill
will who would want to use cyberspace technology for mischiefs and crimes. One of
them can, for instance, avail himself of the system to unjustly ruin the reputation of
another or bully the latter by posting defamatory statements against him that people
can read.
And because linking with the internet opens up a user to communications from others,
the ill-motivated can use the cyberspace for committing theft by hacking into or
surreptitiously accessing his bank account or credit card or defrauding him through false
representations. The wicked can use the cyberspace, too, for illicit trafficking in sex or
for exposing to pornography guileless children who have access to the internet. For this
reason, the government has a legitimate right to regulate the use of cyberspace and
contain and punish wrongdoings.
Notably, there are also those who would want, like vandals, to wreak or cause havoc to
the computer systems and networks of indispensable or highly useful institutions as well
as to the laptop or computer programs and memories of innocent individuals. They
accomplish this by sending electronic viruses or virtual dynamites that destroy those
computer systems, networks, programs, and memories. The government certainly has
the duty and the right to prevent these tomfooleries from happening and punish their
perpetrators, hence the Cybercrime Prevention Act.
But petitioners claim that the means adopted by the cybercrime law for regulating
undesirable cyberspace activities violate certain of their constitutional rights. The
government of course asserts that the law merely seeks to reasonably put order into
cyberspace activities, punish wrongdoings, and prevent hurtful attacks on the system.
Pending hearing and adjudication of the issues presented in these cases, on February 5,
2013 the Court extended the original 120-day temporary restraining order (TRO) that it
earlier issued on October 9, 2012, enjoining respondent government agencies from
implementing the cybercrime law until further orders.
The Issues Presented
Petitioners challenge the constitutionality of the following provisions of the cybercrime
law that regard certain acts as crimes and impose penalties for their commission as well
as provisions that would enable the government to track down and penalize violators.
These provisions are:
a. Section 4(a)(1) on Illegal Access;
b. Section 4(a)(3) on Data Interference;
c. Section 4(a)(6) on Cyber-squatting;
d. Section 4(b)(3) on Identity Theft;
e. Section 4(c)(1) on Cybersex;
f. Section 4(c)(2) on Child Pornography;
g. Section 4(c)(3) on Unsolicited Commercial Communications;
h. Section 4(c)(4) on Libel;
i. Section 5 on Aiding or Abetting and Attempt in the Commission of Cybercrimes;
21
j. Section 6 on the Penalty of One Degree Higher;
k. Section 7 on the Prosecution under both the Revised Penal Code (RPC) and R.A.
10175;
l. Section 8 on Penalties;
m. Section 12 on Real-Time Collection of Traffic Data;
n. Section 13 on Preservation of Computer Data;
o. Section 14 on Disclosure of Computer Data;
p. Section 15 on Search, Seizure and Examination of Computer Data;
q. Section 17 on Destruction of Computer Data;
r. Section 19 on Restricting or Blocking Access to Computer Data;
s. Section 20 on Obstruction of Justice;
t. Section 24 on Cybercrime Investigation and Coordinating Center (CICC); and
u. Section 26(a) on CICC’s Powers and Functions.
Some petitioners also raise the constitutionality of related Articles 353, 354, 361, and
362 of the RPC on the crime of libel.
The Rulings of the Court
Section 4(a)(1)
Section 4(a)(1) provides:
Section 4. Cybercrime Offenses. – The following acts constitute the offense of
cybercrime punishable under this Act:
(a) Offenses against the confidentiality, integrity and availability of computer data and
systems:
(1) Illegal Access. – The access to the whole or any part of a computer system without
right.
Petitioners contend that Section 4(a)(1) fails to meet the strict scrutiny standard
required of laws that interfere with the fundamental rights of the people and should thus
be struck down.
The Court has in a way found the strict scrutiny standard, an American constitutional
construct, useful in determining the constitutionality of laws that tend to target a class
of things or persons. According to this standard, a legislative classification that
impermissibly interferes with the exercise of fundamental right or operates to the
peculiar class disadvantage of a suspect class is presumed unconstitutional. The burden
is on the government to prove that the classification is necessary to achieve a
compelling state interest and that it is the least restrictive means to protect such
interest. Later, the strict scrutiny standard was used to assess the validity of laws
dealing with the regulation of speech, gender, or race as well as other fundamental
rights, as expansion from its earlier applications to equal protection.
In the cases before it, the Court finds nothing in Section 4(a)(1) that calls for the
application of the strict scrutiny standard since no fundamental freedom, like speech, is
involved in punishing what is essentially a condemnable act – accessing the computer
system of another without right. It is a universally condemned conduct.
Petitioners of course fear that this section will jeopardize the work of ethical hackers,
professionals who employ tools and techniques used by criminal hackers but would
neither damage the target systems nor steal information. Ethical hackers evaluate the
target system’s security and report back to the owners the vulnerabilities they found in
it and give instructions for how these can be remedied. Ethical hackers are the
equivalent of independent auditors who come into an organization to verify its
bookkeeping records.
22
Besides, a client’s engagement of an ethical hacker requires an agreement between
them as to the extent of the search, the methods to be used, and the systems to be
tested. This is referred to as the "get out of jail free card." Since the ethical hacker does
his job with prior permission from the client, such permission would insulate him from
the coverage of Section 4(a)(1).
Section 4(a)(3) of the Cybercrime Law
systems: x x x x
(3) Data Interference. – The intentional or reckless alteration, damaging, deletion or
deterioration of computer data, electronic document, or electronic data message,
without right, including the introduction or transmission of viruses.
Petitioners claim that Section 4(a)(3) suffers from overbreadth in that, while it seeks to
discourage data interference, it intrudes into the area of protected speech and
expression, creating a chilling and deterrent effect on these guaranteed freedoms.
Under the overbreadth doctrine, a proper governmental purpose, constitutionally subject
to state regulation, may not be achieved by means that unnecessarily sweep its subject
broadly, thereby invading the area of protected freedoms. But Section 4(a)(3) does not
encroach on these freedoms at all. It simply punishes what essentially is a form of
vandalism, the act of willfully destroying without right the things that belong to others,
in this case their computer data, electronic document, or electronic data message. Such
act has no connection to guaranteed freedoms. There is no freedom to destroy other
people’s computer systems and private documents.
All penal laws, like the cybercrime law, have of course an inherent chilling effect, an in
terrorem effect or the fear of possible prosecution that hangs on the heads of citizens
who are minded to step beyond the boundaries of what is proper. But to prevent the
State from legislating criminal laws because they instill such kind of fear is to render the
state powerless in addressing and penalizing socially harmful conduct. Here, the chilling
effect that results in paralysis is an illusion since Section 4(a)(3) clearly describes the
evil that it seeks to punish and creates no tendency to intimidate the free exercise of
one’s constitutional rights.
Besides, the overbreadth challenge places on petitioners the heavy burden of proving
that under no set of circumstances will Section 4(a)(3) be valid. Petitioner has failed to
discharge this burden.
Section 4(a)(6) of the Cybercrime Law
systems: x x x x
(6) Cyber-squatting. – The acquisition of domain name over the internet in bad faith to
profit, mislead, destroy the reputation, and deprive others from registering the same, if
such a domain name is:
(i) Similar, identical, or confusingly similar to an existing trademark registered with the
appropriate government agency at the time of the domain name registration;
(ii) Identical or in any way similar with the name of a person other than the registrant,
in case of a personal name; and
23
(iii) Acquired without right or with intellectual property interests in it.
Petitioners claim that Section 4(a)(6) or cyber-squatting violates the equal protection
clause in that, not being narrowly tailored, it will cause a user using his real name to
suffer the same fate as those who use aliases or take the name of another in satire,
parody, or any other literary device. For example, supposing there exists a well known
billionaire-philanthropist named "Julio Gandolfo," the law would punish for cyber-
squatting both the person who registers such name because he claims it to be his
pseudo-name and another who registers the name because it happens to be his real
name. Petitioners claim that, considering the substantial distinction between the two,
the law should recognize the difference.
But there is no real difference whether he uses "Julio Gandolfo" which happens to be his
real name or use it as a pseudo-name for it is the evil purpose for which he uses the
name that the law condemns. The law is reasonable in penalizing him for acquiring the
domain name in bad faith to profit, mislead, destroy reputation, or deprive others who
are not ill-motivated of the rightful opportunity of registering the same. The challenge to
the constitutionality of Section 4(a)(6) on ground of denial of equal protection is
baseless.
Section 4(b)(3) of the Cybercrime Law
Section 4(b)(3) provides:
xxxx
b) Computer-related Offenses:
xxxx
(3) Computer-related Identity Theft. – The intentional acquisition, use, misuse, transfer,
possession, alteration, or deletion of identifying information belonging to another,
whether natural or juridical, without right: Provided: that if no damage has yet been
caused, the penalty imposable shall be one (1) degree lower.
Petitioners claim that Section 4(b)(3) violates the constitutional rights to due process
and to privacy and correspondence, and transgresses the freedom of the press.
The right to privacy, or the right to be let alone, was institutionalized in the 1987
Constitution as a facet of the right protected by the guarantee against unreasonable
searches and seizures. But the Court acknowledged its existence as early as 1968 in
Morfe v. Mutuc, it ruled that the right to privacy exists independently of its identification
with liberty; it is in itself fully deserving of constitutional protection.
Relevant to any discussion of the right to privacy is the concept known as the "Zones of
Privacy." The Court explained in "In the Matter of the Petition for Issuance of Writ of
Habeas Corpus of Sabio v. Senator Gordon" the relevance of these zones to the right to
privacy:
Zones of privacy are recognized and protected in our laws. Within these zones, any form
of intrusion is impermissible unless excused by law and in accordance with customary
legal process. The meticulous regard we accord to these zones arises not only from our
conviction that the right to privacy is a "constitutional right" and "the right most valued
by civilized men," but also from our adherence to the Universal Declaration of Human
Rights which mandates that, "no one shall be subjected to arbitrary interference with his
privacy" and "everyone has the right to the protection of the law against such
interference or attacks."
Two constitutional guarantees create these zones of privacy: (a) the right against
unreasonable searches and seizures, which is the basis of the right to be let alone, and
24
(b) the right to privacy of communication and correspondence. In assessing the
challenge that the State has impermissibly intruded into these zones of privacy, a court
must determine whether a person has exhibited a reasonable expectation of privacy
and, if so, whether that expectation has been violated by unreasonable government
intrusion.
The usual identifying information regarding a person includes his name, his citizenship,
his residence address, his contact number, his place and date of birth, the name of his
spouse if any, his occupation, and similar data. The law punishes those who acquire or
use such identifying information without right, implicitly to cause damage. Petitioners
simply fail to show how government effort to curb computer-related identity theft
violates the right to privacy and correspondence as well as the right to due process of
law.
Also, the charge of invalidity of this section based on the overbreadth doctrine will not
hold water since the specific conducts proscribed do not intrude into guaranteed
freedoms like speech. Clearly, what this section regulates are specific actions: the
acquisition, use, misuse or deletion of personal identifying data of another. There is no
fundamental right to acquire another’s personal data.
Further, petitioners fear that Section 4(b)(3) violates the freedom of the press in that
journalists would be hindered from accessing the unrestricted user account of a person
in the news to secure information about him that could be published. But this is not the
essence of identity theft that the law seeks to prohibit and punish. Evidently, the theft of
identity information must be intended for an illegitimate purpose. Moreover, acquiring
and disseminating information made public by the user himself cannot be regarded as a
form of theft.
The Court has defined intent to gain as an internal act which can be established through
the overt acts of the offender, and it may be presumed from the furtive taking of useful
property pertaining to another, unless special circumstances reveal a different intent on
the part of the perpetrator. As such, the press, whether in quest of news reporting or
social investigation, has nothing to fear since a special circumstance is present to negate
intent to gain which is required by this Section.
Section 4(c)(1) of the Cybercrime Law
Section 4(c)(1) provides:
Sec. 4. Cybercrime Offenses.– The following acts constitute the offense of cybercrime
punishable under this Act:
xxxx
(c) Content-related Offenses:
(1) Cybersex.– The willful engagement, maintenance, control, or operation, directly or
indirectly, of any lascivious exhibition of sexual organs or sexual activity, with the aid of
a computer system, for favor or consideration.
Petitioners claim that the above violates the freedom of expression clause of the
Constitution. They express fear that private communications of sexual character
between husband and wife or consenting adults, which are not regarded as crimes under
the penal code, would now be regarded as crimes when done "for favor" in cyberspace.
In common usage, the term "favor" includes "gracious kindness," "a special privilege or
right granted or conceded," or "a token of love (as a ribbon) usually worn
conspicuously." This meaning given to the term "favor" embraces socially tolerated
trysts. The law as written would invite law enforcement agencies into the bedrooms of
married couples or consenting individuals.
25
But the deliberations of the Bicameral Committee of Congress on this section of the
Cybercrime Prevention Act give a proper perspective on the issue. These deliberations
show a lack of intent to penalize a "private showing x x x between and among two
private persons x x x although that may be a form of obscenity to some." The
understanding of those who drew up the cybercrime law is that the element of
"engaging in a business" is necessary to constitute the illegal cybersex. The Act actually
seeks to punish cyber prostitution, white slave trade, and pornography for favor and
consideration. This includes interactive prostitution and pornography, i.e., by webcam.
The subject of Section 4(c)(1)—lascivious exhibition of sexual organs or sexual activity—
is not novel. Article 201 of the RPC punishes "obscene publications and exhibitions and
indecent shows." The Anti-Trafficking in Persons Act of 2003 penalizes those who
"maintain or hire a person to engage in prostitution or pornography." The law defines
prostitution as any act, transaction, scheme, or design involving the use of a person by
another, for sexual intercourse or lascivious conduct in exchange for money, profit, or
any other consideration.
The case of Nogales v. People shows the extent to which the State can regulate
materials that serve no other purpose than satisfy the market for violence, lust, or
pornography. The Court weighed the property rights of individuals against the public
welfare. Private property, if containing pornographic materials, may be forfeited and
destroyed. Likewise, engaging in sexual acts privately through internet connection,
perceived by some as a right, has to be balanced with the mandate of the State to
eradicate white slavery and the exploitation of women.
In any event, consenting adults are protected by the wealth of jurisprudence delineating
the bounds of obscenity. The Court will not declare Section 4(c)(1) unconstitutional
where it stands a construction that makes it apply only to persons engaged in the
business of maintaining, controlling, or operating, directly or indirectly, the lascivious
exhibition of sexual organs or sexual activity with the aid of a computer system as
Congress has intended.
Sec. 4. Cybercrime Offenses. – The following acts constitute the offense of cybercrime
xxxx
xxxx
(2) Child Pornography. — The unlawful or prohibited acts defined and punishable by
Republic Act No. 9775 or the Anti-Child Pornography Act of 2009, committed through a
computer system: Provided, That the penalty to be imposed shall be (1) one degree
higher than that provided for in Republic Act No. 9775.
It seems that the above merely expands the scope of the Anti-Child Pornography Act of
2009 (ACPA) to cover identical activities in cyberspace. In theory, nothing prevents the
government from invoking the ACPA when prosecuting persons who commit child
pornography using a computer system. Actually, ACPA’s definition of child pornography
already embraces the use of "electronic, mechanical, digital, optical, magnetic or any
other means." Notably, no one has questioned this ACPA provision.
Of course, the law makes the penalty higher by one degree when the crime is committed
in cyberspace. But no one can complain since the intensity or duration of penalty is a
legislative prerogative and there is rational basis for such higher penalty. The potential
26
for uncontrolled proliferation of a particular piece of child pornography when uploaded in
the cyberspace is incalculable.
Petitioners point out that the provision of ACPA that makes it unlawful for any person to
"produce, direct, manufacture or create any form of child pornography" clearly relates to
the prosecution of persons who aid and abet the core offenses that ACPA seeks to
punish. Petitioners are wary that a person who merely doodles on paper and imagines a
sexual abuse of a 16-year-old is not criminally liable for producing child pornography but
one who formulates the idea on his laptop would be. Further, if the author bounces off
his ideas on Twitter, anyone who replies to the tweet could be considered aiding and
abetting a cybercrime.
The question of aiding and abetting the offense by simply commenting on it will be
discussed elsewhere below. For now the Court must hold that the constitutionality of
Section 4(c)(2) is not successfully challenged.
Sec. 4. Cybercrime Offenses. – The following acts constitute the offense of cybercrime
xxxx
xxx
(3) Unsolicited Commercial Communications. – The transmission of commercial
electronic communication with the use of computer system which seeks to advertise,
sell, or offer for sale products and services are prohibited unless:
(i) There is prior affirmative consent from the recipient; or
(ii) The primary intent of the communication is for service and/or administrative
announcements from the sender to its existing users, subscribers or customers; or
(iii) The following conditions are present:
(aa) The commercial electronic communication contains a simple, valid, and reliable way
for the recipient to reject receipt of further commercial electronic messages (opt-out)
from the same source;
(bb) The commercial electronic communication does not purposely disguise the source of
the electronic message; and
(cc) The commercial electronic communication does not purposely include misleading
information in any part of the message in order to induce the recipients to read the
message.
The above penalizes the transmission of unsolicited commercial communications, also
known as "spam." The term "spam" surfaced in early internet chat rooms and interactive
fantasy games. One who repeats the same sentence or comment was said to be making
a "spam." The term referred to a Monty Python’s Flying Circus scene in which actors
would keep saying "Spam, Spam, Spam, and Spam" when reading options from a menu.
The Government, represented by the Solicitor General, points out that unsolicited
commercial communications or spams are a nuisance that wastes the storage and
network capacities of internet service providers, reduces the efficiency of commerce and
technology, and interferes with the owner’s peaceful enjoyment of his property.
Transmitting spams amounts to trespass to one’s privacy since the person sending out
spams enters the recipient’s domain without prior permission. The OSG contends that
commercial speech enjoys less protection in law.
But, firstly, the government presents no basis for holding that unsolicited electronic ads
reduce the "efficiency of computers." Secondly, people, before the arrival of the age of
27
computers, have already been receiving such unsolicited ads by mail. These have never
been outlawed as nuisance since people might have interest in such ads. What matters
is that the recipient has the option of not opening or reading these mail ads. That is true
with spams. Their recipients always have the option to delete or not to read them.
To prohibit the transmission of unsolicited ads would deny a person the right to read his
emails, even unsolicited commercial ads addressed to him. Commercial speech is a
separate category of speech which is not accorded the same level of protection as that
given to other constitutionally guaranteed forms of expression but is nonetheless
entitled to protection. The State cannot rob him of this right without violating the
constitutionally guaranteed freedom of expression. Unsolicited advertisements are
legitimate forms of expression.
Articles 353, 354, and 355 of the Penal Code
Section 4(c)(4) of the Cyber Crime Law
Petitioners dispute the constitutionality of both the penal code provisions on libel as well
as Section 4(c)(4) of the Cybercrime Prevention Act on cyberlibel.
The RPC provisions on libel read:
Art. 353. Definition of libel. — A libel is public and malicious imputation of a crime, or of
a vice or defect, real or imaginary, or any act, omission, condition, status, or
circumstance tending to cause the dishonor, discredit, or contempt of a natural or
juridical person, or to blacken the memory of one who is dead.
Art. 354. Requirement for publicity. — Every defamatory imputation is presumed to be
malicious, even if it be true, if no good intention and justifiable motive for making it is
shown, except in the following cases:
1. A private communication made by any person to another in the performance of any
legal, moral or social duty; and
2. A fair and true report, made in good faith, without any comments or remarks, of any
judicial, legislative or other official proceedings which are not of confidential nature, or
of any statement, report or speech delivered in said proceedings, or of any other act
performed by public officers in the exercise of their functions.
Art. 355. Libel means by writings or similar means. — A libel committed by means of
writing, printing, lithography, engraving, radio, phonograph, painting, theatrical
exhibition, cinematographic exhibition, or any similar means, shall be punished by
prision correccional in its minimum and medium periods or a fine ranging from 200 to
6,000 pesos, or both, in addition to the civil action which may be brought by the
offended party.
The libel provision of the cybercrime law, on the other hand, merely incorporates to form
part of it the provisions of the RPC on libel. Thus Section 4(c)(4) reads:
Sec. 4. Cybercrime Offenses. — The following acts constitute the offense of cybercrime
xxxx
xxxx
(4) Libel. — The unlawful or prohibited acts of libel as defined in Article 355 of the
Revised Penal Code, as amended, committed through a computer system or any other
similar means which may be devised in the future.
Petitioners lament that libel provisions of the penal code and, in effect, the libel
provisions of the cybercrime law carry with them the requirement of "presumed malice"
even when the latest jurisprudence already replaces it with the higher standard of
"actual malice" as a basis for conviction.38 Petitioners argue that inferring "presumed
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malice" from the accused’s defamatory statement by virtue of Article 354 of the penal
code infringes on his constitutionally guaranteed freedom of expression.
Petitioners would go further. They contend that the laws on libel should be stricken down
as unconstitutional for otherwise good jurisprudence requiring "actual malice" could
easily be overturned as the Court has done in Fermin v. People even where the offended
parties happened to be public figures.
The elements of libel are: (a) the allegation of a discreditable act or condition concerning
another; (b) publication of the charge; (c) identity of the person defamed; and (d)
existence of malice.
There is "actual malice" or malice in fact when the offender makes the defamatory
statement with the knowledge that it is false or with reckless disregard of whether it was
false or not. The reckless disregard standard used here requires a high degree of
awareness of probable falsity. There must be sufficient evidence to permit the conclusion
that the accused in fact entertained serious doubts as to the truth of the statement he
published. Gross or even extreme negligence is not sufficient to establish actual malice.
The prosecution bears the burden of proving the presence of actual malice in instances
where such element is required to establish guilt. The defense of absence of actual
malice, even when the statement turns out to be false, is available where the offended
party is a public official or a public figure, as in the cases of Vasquez (a barangay
official) and Borjal (the Executive Director, First National Conference on Land
Transportation). Since the penal code and implicitly, the cybercrime law, mainly target
libel against private persons, the Court recognizes that these laws imply a stricter
standard of "malice" to convict the author of a defamatory statement where the
offended party is a public figure. Society’s interest and the maintenance of good
government demand a full discussion of public affairs.
Parenthetically, the Court cannot accept the proposition that its ruling in Fermin
disregarded the higher standard of actual malice or malice in fact when it found
Cristinelli Fermin guilty of committing libel against complainants who were public figures.
Actually, the Court found the presence of malice in fact in that case. Thus:
It can be gleaned from her testimony that petitioner had the motive to make defamatory
imputations against complainants. Thus, petitioner cannot, by simply making a general
denial, convince us that there was no malice on her part. Verily, not only was there
malice in law, the article being malicious in itself, but there was also malice in fact, as
there was motive to talk ill against complainants during the electoral campaign.
(Emphasis ours)
Indeed, the Court took into account the relatively wide leeway given to utterances
against public figures in the above case, cinema and television personalities, when it
modified the penalty of imprisonment to just a fine of ₱6,000.00.
But, where the offended party is a private individual, the prosecution need not prove the
presence of malice. The law explicitly presumes its existence (malice in law) from the
defamatory character of the assailed statement. For his defense, the accused must show
that he has a justifiable reason for the defamatory statement even if it was in fact true.
Petitioners peddle the view that both the penal code and the Cybercrime Prevention Act
violate the country’s obligations under the International Covenant of Civil and Political
Rights (ICCPR). They point out that in Adonis v. Republic of the Philippines, the United
Nations Human Rights Committee (UNHRC) cited its General Comment 34 to the effect
that penal defamation laws should include the defense of truth.
But General Comment 34 does not say that the truth of the defamatory statement
should constitute an all-encompassing defense. As it happens, Article 361 recognizes
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truth as a defense but under the condition that the accused has been prompted in
making the statement by good motives and for justifiable ends. Thus:
Art. 361. Proof of the truth. — In every criminal prosecution for libel, the truth may be
given in evidence to the court and if it appears that the matter charged as libelous is
true, and, moreover, that it was published with good motives and for justifiable ends,
the defendants shall be acquitted.
Proof of the truth of an imputation of an act or omission not constituting a crime shall
not be admitted, unless the imputation shall have been made against Government
employees with respect to facts related to the discharge of their official duties.
In such cases if the defendant proves the truth of the imputation made by him, he shall
be acquitted.
Besides, the UNHRC did not actually enjoin the Philippines, as petitioners urge, to
decriminalize libel. It simply suggested that defamation laws be crafted with care to
ensure that they do not stifle freedom of expression. Indeed, the ICCPR states that
although everyone should enjoy freedom of expression, its exercise carries with it
special duties and responsibilities. Free speech is not absolute. It is subject to certain
restrictions, as may be necessary and as may be provided by law.
The Court agrees with the Solicitor General that libel is not a constitutionally protected
speech and that the government has an obligation to protect private individuals from
defamation. Indeed, cyberlibel is actually not a new crime since Article 353, in relation
to Article 355 of the penal code, already punishes it. In effect, Section 4(c)(4) above
merely affirms that online defamation constitutes "similar means" for committing libel.
But the Court’s acquiescence goes only insofar as the cybercrime law penalizes the
author of the libelous statement or article. Cyberlibel brings with it certain intricacies,
unheard of when the penal code provisions on libel were enacted. The culture associated
with internet media is distinct from that of print.
The internet is characterized as encouraging a freewheeling, anything-goes writing
style.50 In a sense, they are a world apart in terms of quickness of the reader’s reaction
to defamatory statements posted in cyberspace, facilitated by one-click reply options
offered by the networking site as well as by the speed with which such reactions are
disseminated down the line to other internet users. Whether these reactions to
defamatory statement posted on the internet constitute aiding and abetting libel, acts
that Section 5 of the cybercrime law punishes, is another matter that the Court will deal
with next in relation to Section 5 of the law.
Section 5 of the Cybercrime Law
Section 5 provides:
Sec. 5. Other Offenses. — The following acts shall also constitute an offense:
(a) Aiding or Abetting in the Commission of Cybercrime. – Any person who willfully abets
or aids in the commission of any of the offenses enumerated in this Act shall be held
liable.
(b) Attempt in the Commission of Cybercrime. — Any person who willfully attempts to
commit any of the offenses enumerated in this Act shall be held liable.
Petitioners assail the constitutionality of Section 5 that renders criminally liable any
person who willfully abets or aids in the commission or attempts to commit any of the
offenses enumerated as cybercrimes. It suffers from overbreadth, creating a chilling and
deterrent effect on protected expression.
The Solicitor General contends, however, that the current body of jurisprudence and
laws on aiding and abetting sufficiently protects the freedom of expression of "netizens,"
the multitude that avail themselves of the services of the internet. He points out that
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existing laws and jurisprudence sufficiently delineate the meaning of "aiding or abetting"
a crime as to protect the innocent. The Solicitor General argues that plain, ordinary, and
common usage is at times sufficient to guide law enforcement agencies in enforcing the
law. The legislature is not required to define every single word contained in the laws
they craft.
Aiding or abetting has of course well-defined meaning and application in existing laws.
When a person aids or abets another in destroying a forest, smuggling merchandise into
the country, or interfering in the peaceful picketing of laborers, his action is essentially
physical and so is susceptible to easy assessment as criminal in character. These forms
of aiding or abetting lend themselves to the tests of common sense and human
experience.
But, when it comes to certain cybercrimes, the waters are muddier and the line of sight
is somewhat blurred. The idea of "aiding or abetting" wrongdoings online threatens the
heretofore popular and unchallenged dogmas of cyberspace use.
According to the 2011 Southeast Asia Digital Consumer Report, 33% of Filipinos have
accessed the internet within a year, translating to about 31 million users. Based on a
recent survey, the Philippines ranks 6th in the top 10 most engaged countries for social
networking. Social networking sites build social relations among people who, for
example, share interests, activities, backgrounds, or real-life connections.
Two of the most popular of these sites are Facebook and Twitter. As of late 2012, 1.2
billion people with shared interests use Facebook to get in touch. Users register at this
site, create a personal profile or an open book of who they are, add other users as
friends, and exchange messages, including automatic notifications when they update
their profile. A user can post a statement, a photo, or a video on Facebook, which can be
made visible to anyone, depending on the user’s privacy settings.
If the post is made available to the public, meaning to everyone and not only to his
friends, anyone on Facebook can react to the posting, clicking any of several buttons of
preferences on the program’s screen such as "Like," "Comment," or "Share." "Like"
signifies that the reader likes the posting while "Comment" enables him to post online
his feelings or views about the same, such as "This is great!" When a Facebook user
"Shares" a posting, the original "posting" will appear on his own Facebook profile,
consequently making it visible to his down-line Facebook Friends.
Twitter, on the other hand, is an internet social networking and microblogging service
that enables its users to send and read short text-based messages of up to 140
characters. These are known as "Tweets." Microblogging is the practice of posting small
pieces of digital content—which could be in the form of text, pictures, links, short videos,
or other media—on the internet. Instead of friends, a Twitter user has "Followers," those
who subscribe to this particular user’s posts, enabling them to read the same, and
"Following," those whom this particular user is subscribed to, enabling him to read their
posts. Like Facebook, a Twitter user can make his tweets available only to his Followers,
or to the general public. If a post is available to the public, any Twitter user can
"Retweet" a given posting. Retweeting is just reposting or republishing another person’s
tweet without the need of copying and pasting it.
In the cyberworld, there are many actors: a) the blogger who originates the assailed
statement; b) the blog service provider like Yahoo; c) the internet service provider like
PLDT, Smart, Globe, or Sun; d) the internet café that may have provided the computer
used for posting the blog; e) the person who makes a favorable comment on the blog;
and f) the person who posts a link to the blog site.60 Now, suppose Maria (a blogger)
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maintains a blog on WordPress.com (blog service provider). She needs the internet to
access her blog so she subscribes to Sun Broadband (Internet Service Provider).
One day, Maria posts on her internet account the statement that a certain married public
official has an illicit affair with a movie star. Linda, one of Maria’s friends who sees this
post, comments online, "Yes, this is so true! They are so immoral." Maria’s original post
is then multiplied by her friends and the latter’s friends, and down the line to friends of
friends almost ad infinitum. Nena, who is a stranger to both Maria and Linda, comes
across this blog, finds it interesting and so shares the link to this apparently defamatory
blog on her Twitter account. Nena’s "Followers" then "Retweet" the link to that blog site.
Pamela, a Twitter user, stumbles upon a random person’s "Retweet" of Nena’s original
tweet and posts this on her Facebook account. Immediately, Pamela’s Facebook Friends
start Liking and making Comments on the assailed posting. A lot of them even press the
Share button, resulting in the further spread of the original posting into tens, hundreds,
thousands, and greater postings.
The question is: are online postings such as "Liking" an openly defamatory statement,
"Commenting" on it, or "Sharing" it with others, to be regarded as "aiding or abetting?"
In libel in the physical world, if Nestor places on the office bulletin board a small poster
that says, "Armand is a thief!," he could certainly be charged with libel. If Roger, seeing
the poster, writes on it, "I like this!," that could not be libel since he did not author the
poster. If Arthur, passing by and noticing the poster, writes on it, "Correct!," would that
be libel? No, for he merely expresses agreement with the statement on the poster. He
still is not its author. Besides, it is not clear if aiding or abetting libel in the physical
world is a crime.
But suppose Nestor posts the blog, "Armand is a thief!" on a social networking site.
Would a reader and his Friends or Followers, availing themselves of any of the "Like,"
"Comment," and "Share" reactions, be guilty of aiding or abetting libel? And, in the
complex world of cyberspace expressions of thoughts, when will one be liable for aiding
or abetting cybercrimes? Where is the venue of the crime?
Except for the original author of the assailed statement, the rest (those who pressed
Like, Comment and Share) are essentially knee-jerk sentiments of readers who may
think little or haphazardly of their response to the original posting. Will they be liable for
aiding or abetting? And, considering the inherent impossibility of joining hundreds or
thousands of responding "Friends" or "Followers" in the criminal charge to be filed in
court, who will make a choice as to who should go to jail for the outbreak of the
challenged posting?
The old parameters for enforcing the traditional form of libel would be a square peg in a
round hole when applied to cyberspace libel. Unless the legislature crafts a cyber libel
law that takes into account its unique circumstances and culture, such law will tend to
create a chilling effect on the millions that use this new medium of communication in
violation of their constitutionally-guaranteed right to freedom of expression.
The United States Supreme Court faced the same issue in Reno v. American Civil
Liberties Union, a case involving the constitutionality of the Communications Decency
Act of 1996. The law prohibited (1) the knowing transmission, by means of a
telecommunications device, of
"obscene or indecent" communications to any recipient under 18 years of age; and (2)
the knowing use of an interactive computer service to send to a specific person or
persons under 18 years of age or to display in a manner available to a person under 18
years of age communications that, in context, depict or describe, in terms "patently
32
offensive" as measured by contemporary community standards, sexual or excretory
activities or organs.
Those who challenged the Act claim that the law violated the First Amendment’s
guarantee of freedom of speech for being overbroad. The U.S. Supreme Court agreed
and ruled:
The vagueness of the Communications Decency Act of 1996 (CDA), 47 U.S.C.S. §223, is
a matter of special concern for two reasons. First, the CDA is a content-based regulation
of speech. The vagueness of such a regulation raises special U.S. Const. amend. I
concerns because of its obvious chilling effect on free speech. Second, the CDA is a
criminal statute. In addition to the opprobrium and stigma of a criminal conviction, the
CDA threatens violators with penalties including up to two years in prison for each act of
violation. The severity of criminal sanctions may well cause speakers to remain silent
rather than communicate even arguably unlawful words, ideas, and images. As a
practical matter, this increased deterrent effect, coupled with the risk of discriminatory
enforcement of vague regulations, poses greater U.S. Const. amend. I concerns than
those implicated by certain civil regulations.
xxxx
The Communications Decency Act of 1996 (CDA), 47 U.S.C.S. § 223, presents a great
threat of censoring speech that, in fact, falls outside the statute's scope. Given the
vague contours of the coverage of the statute, it unquestionably silences some speakers
whose messages would be entitled to constitutional protection. That danger provides
further reason for insisting that the statute not be overly broad. The CDA’s burden on
protected speech cannot be justified if it could be avoided by a more carefully drafted
statute. (Emphasis ours)
Libel in the cyberspace can of course stain a person’s image with just one click of the
mouse. Scurrilous statements can spread and travel fast across the globe like bad news.
Moreover, cyberlibel often goes hand in hand with cyberbullying that oppresses the
victim, his relatives, and friends, evoking from mild to disastrous reactions. Still, a
governmental purpose, which seeks to regulate the use of this cyberspace
communication technology to protect a person’s reputation and peace of mind, cannot
adopt means that will unnecessarily and broadly sweep, invading the area of protected
freedoms.
If such means are adopted, self-inhibition borne of fear of what sinister predicaments
await internet users will suppress otherwise robust discussion of public issues.
Democracy will be threatened and with it, all liberties. Penal laws should provide
reasonably clear guidelines for law enforcement officials and triers of facts to prevent
arbitrary and discriminatory enforcement. The terms "aiding or abetting" constitute
broad sweep that generates chilling effect on those who express themselves through
cyberspace posts, comments, and other messages. Hence, Section 5 of the cybercrime
law that punishes "aiding or abetting" libel on the cyberspace is a nullity.
When a penal statute encroaches upon the freedom of speech, a facial challenge
grounded on the void-for-vagueness doctrine is acceptable. The inapplicability of the
doctrine must be carefully delineated. As Justice Antonio T. Carpio explained in his
dissent in Romualdez v. Commission on Elections, "we must view these statements of
the Court on the inapplicability of the overbreadth and vagueness doctrines to penal
statutes as appropriate only insofar as these doctrines are used to mount ‘facial’
challenges to penal statutes not involving free speech."
In an "as applied" challenge, the petitioner who claims a violation of his constitutional
right can raise any constitutional ground – absence of due process, lack of fair notice,
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lack of ascertainable standards, overbreadth, or vagueness. Here, one can challenge the
constitutionality of a statute only if he asserts a violation of his own rights. It prohibits
one from assailing the constitutionality of the statute based solely on the violation of the
rights of third persons not before the court. This rule is also known as the prohibition
against third-party standing.
But this rule admits of exceptions. A petitioner may for instance mount a "facial"
challenge to the constitutionality of a statute even if he claims no violation of his own
rights under the assailed statute where it involves free speech on grounds of
overbreadth or vagueness of the statute.
The rationale for this exception is to counter the "chilling effect" on protected speech
that comes from statutes violating free speech. A person who does not know whether his
speech constitutes a crime under an overbroad or vague law may simply restrain himself
from speaking in order to avoid being charged of a crime. The overbroad or vague law
thus chills him into silence.
As already stated, the cyberspace is an incomparable, pervasive medium of
communication. It is inevitable that any government threat of punishment regarding
certain uses of the medium creates a chilling effect on the constitutionally-protected
freedom of expression of the great masses that use it. In this case, the particularly
complex web of interaction on social media websites would give law enforcers such
latitude that they could arbitrarily or selectively enforce the law.
Who is to decide when to prosecute persons who boost the visibility of a posting on the
internet by liking it? Netizens are not given "fair notice" or warning as to what is criminal
conduct and what is lawful conduct. When a case is filed, how will the court ascertain
whether or not one netizen’s comment aided and abetted a cybercrime while another
comment did not?
Of course, if the "Comment" does not merely react to the original posting but creates an
altogether new defamatory story against Armand like "He beats his wife and children,"
then that should be considered an original posting published on the internet. Both the
penal code and the cybercrime law clearly punish authors of defamatory publications.
Make no mistake, libel destroys reputations that society values. Allowed to cascade in
the internet, it will destroy relationships and, under certain circumstances, will generate
enmity and tension between social or economic groups, races, or religions, exacerbating
existing tension in their relationships.
In regard to the crime that targets child pornography, when "Google procures, stores,
and indexes child pornography and facilitates the completion of transactions involving
the dissemination of child pornography," does this make Google and its users aiders and
abettors in the commission of child pornography crimes? Byars highlights a feature in
the American law on child pornography that the Cybercrimes law lacks—the exemption
of a provider or notably a plain user of interactive computer service from civil liability for
child pornography as follows:
No provider or user of an interactive computer service shall be treated as the publisher
or speaker of any information provided by another information content provider and
cannot be held civilly liable for any action voluntarily taken in good faith to restrict
access to or availability of material that the provider or user considers to be
obscene...whether or not such material is constitutionally protected.
When a person replies to a Tweet containing child pornography, he effectively
republishes it whether wittingly or unwittingly. Does this make him a willing accomplice
to the distribution of child pornography? When a user downloads the Facebook mobile
application, the user may give consent to Facebook to access his contact details. In this
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way, certain information is forwarded to third parties and unsolicited commercial
communication could be disseminated on the basis of this information. As the source of
this information, is the user aiding the distribution of this communication? The
legislature needs to address this clearly to relieve users of annoying fear of possible
criminal prosecution.
Section 5 with respect to Section 4(c)(4) is unconstitutional. Its vagueness raises
apprehension on the part of internet users because of its obvious chilling effect on the
freedom of expression, especially since the crime of aiding or abetting ensnares all the
actors in the cyberspace front in a fuzzy way. What is more, as the petitioners point out,
formal crimes such as libel are not punishable unless consummated. In the absence of
legislation tracing the interaction of netizens and their level of responsibility such as in
other countries, Section 5, in relation to Section 4(c)(4) on Libel, Section 4(c)(3) on
Unsolicited Commercial Communications, and Section 4(c)(2) on Child Pornography,
cannot stand scrutiny.
But the crime of aiding or abetting the commission of cybercrimes under Section 5
should be permitted to apply to Section 4(a)(1) on Illegal Access, Section 4(a)(2) on
Illegal Interception, Section 4(a)(3) on Data Interference, Section 4(a)(4) on System
Interference, Section 4(a)(5) on Misuse of Devices, Section 4(a)(6) on Cyber-squatting,
Section 4(b)(1) on Computer-related Forgery, Section 4(b)(2) on Computer-related
Fraud, Section 4(b)(3) on Computer-related Identity Theft, and Section 4(c)(1) on
Cybersex. None of these offenses borders on the exercise of the freedom of expression.
The crime of willfully attempting to commit any of these offenses is for the same reason
not objectionable. A hacker may for instance have done all that is necessary to illegally
access another party’s computer system but the security employed by the system’s
lawful owner could frustrate his effort. Another hacker may have gained access to
usernames and passwords of others but fail to use these because the system supervisor
is alerted. If Section 5 that punishes any person who willfully attempts to commit this
specific offense is not upheld, the owner of the username and password could not file a
complaint against him for attempted hacking. But this is not right. The hacker should not
be freed from liability simply because of the vigilance of a lawful owner or his supervisor.
Petitioners of course claim that Section 5 lacks positive limits and could cover the
innocent. While this may be true with respect to cybercrimes that tend to sneak past the
area of free expression, any attempt to commit the other acts specified in Section
4(a)(1), Section 4(a)(2), Section 4(a)(3), Section 4(a)(4), Section 4(a)(5), Section
4(a)(6), Section 4(b)(1), Section 4(b)(2), Section 4(b)(3), and Section 4(c)(1) as well
as the actors aiding and abetting the commission of such acts can be identified with
some reasonable certainty through adroit tracking of their works. Absent concrete proof
of the same, the innocent will of course be spared.
Section 6 provides:
Sec. 6. All crimes defined and penalized by the Revised Penal Code, as amended, and
special laws, if committed by, through and with the use of information and
communications technologies shall be covered by the relevant provisions of this Act:
Provided, That the penalty to be imposed shall be one (1) degree higher than that
provided for by the Revised Penal Code, as amended, and special laws, as the case may
be.
Section 6 merely makes commission of existing crimes through the internet a qualifying
circumstance. As the Solicitor General points out, there exists a substantial distinction
between crimes committed through the use of information and communications
35
technology and similar crimes committed using other means. In using the technology in
question, the offender often evades identification and is able to reach far more victims
or cause greater harm. The distinction, therefore, creates a basis for higher penalties for
cybercrimes.
Section 7 provides:
Sec. 7. Liability under Other Laws. — A prosecution under this Act shall be without
prejudice to any liability for violation of any provision of the Revised Penal Code, as
amended, or special laws.
The Solicitor General points out that Section 7 merely expresses the settled doctrine that
a single set of acts may be prosecuted and penalized simultaneously under two laws, a
special law and the Revised Penal Code. When two different laws define two crimes,
prior jeopardy as to one does not bar prosecution of the other although both offenses
arise from the same fact, if each crime involves some important act which is not an
essential element of the other. With the exception of the crimes of online libel and online
child pornography, the Court would rather leave the determination of the correct
application of Section 7 to actual cases.
Online libel is different. There should be no question that if the published material on
print, said to be libelous, is again posted online or vice versa, that identical material
cannot be the subject of two separate libels. The two offenses, one a violation of Article
353 of the Revised Penal Code and the other a violation of Section 4(c)(4) of R.A. 10175
involve essentially the same elements and are in fact one and the same offense. Indeed,
the OSG itself claims that online libel under Section 4(c)(4) is not a new crime but is one
already punished under Article 353. Section 4(c)(4) merely establishes the computer
system as another means of publication. Charging the offender under both laws would
be a blatant violation of the proscription against double jeopardy.
The same is true with child pornography committed online. Section 4(c)(2) merely
expands the ACPA’s scope so as to include identical activities in cyberspace. As
previously discussed, ACPA’s definition of child pornography in fact already covers the
use of "electronic, mechanical, digital, optical, magnetic or any other means." Thus,
charging the offender under both Section 4(c)(2) and ACPA would likewise be
tantamount to a violation of the constitutional prohibition against double jeopardy.
Section 8 provides:
Sec. 8. Penalties. — Any person found guilty of any of the punishable acts enumerated
in Sections 4(a) and 4(b) of this Act shall be punished with imprisonment of prision
mayor or a fine of at least Two hundred thousand pesos (Ph₱200,000.00) up to a
maximum amount commensurate to the damage incurred or both.
Any person found guilty of the punishable act under Section 4(a)(5) shall be punished
with imprisonment of prision mayor or a fine of not more than Five hundred thousand
pesos (Ph₱500,000.00) or both.
If punishable acts in Section 4(a) are committed against critical infrastructure, the
penalty of reclusion temporal or a fine of at least Five hundred thousand pesos
(Ph₱500,000.00) up to maximum amount commensurate to the damage incurred or
both, shall be imposed.
Any person found guilty of any of the punishable acts enumerated in Section 4(c)(1) of
this Act shall be punished with imprisonment of prision mayor or a fine of at least Two
hundred thousand pesos (Ph₱200,000.00) but not exceeding One million pesos
(Ph₱1,000,000.00) or both.
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Any person found guilty of any of the punishable acts enumerated in Section 4(c)(2) of
this Act shall be punished with the penalties as enumerated in Republic Act No. 9775 or
the "Anti-Child Pornography Act of 2009:" Provided, That the penalty to be imposed
shall be one (1) degree higher than that provided for in Republic Act No. 9775, if
committed through a computer system.
Any person found guilty of any of the punishable acts enumerated in Section 4(c)(3)
shall be punished with imprisonment of arresto mayor or a fine of at least Fifty thousand
pesos (Ph₱50,000.00) but not exceeding Two hundred fifty thousand pesos
(Ph₱250,000.00) or both.
Any person found guilty of any of the punishable acts enumerated in Section 5 shall be
punished with imprisonment one (1) degree lower than that of the prescribed penalty for
the offense or a fine of at least One hundred thousand pesos (Ph₱100,000.00) but not
exceeding Five hundred thousand pesos (Ph₱500,000.00) or both.
Section 8 provides for the penalties for the following crimes: Sections 4(a) on Offenses
Against the Confidentiality, Integrity and Availability of Computer Data and Systems;
4(b) on Computer-related Offenses; 4(a)(5) on Misuse of Devices; when the crime
punishable under 4(a) is committed against critical infrastructure; 4(c)(1) on Cybersex;
4(c)(2) on Child Pornography; 4(c)(3) on Unsolicited Commercial Communications; and
Section 5 on Aiding or Abetting, and Attempt in the Commission of Cybercrime.
The matter of fixing penalties for the commission of crimes is as a rule a legislative
prerogative. Here the legislature prescribed a measure of severe penalties for what it
regards as deleterious cybercrimes. They appear proportionate to the evil sought to be
punished. The power to determine penalties for offenses is not diluted or improperly
wielded simply because at some prior time the act or omission was but an element of
another offense or might just have been connected with another crime. Judges and
magistrates can only interpret and apply them and have no authority to modify or revise
their range as determined by the legislative department.
The courts should not encroach on this prerogative of the lawmaking body.
Section 12 provides:
Sec. 12. Real-Time Collection of Traffic Data. — Law enforcement authorities, with due
cause, shall be authorized to collect or record by technical or electronic means traffic
data in real-time associated with specified communications transmitted by means of a
computer system.
Traffic data refer only to the communication’s origin, destination, route, time, date, size,
duration, or type of underlying service, but not content, nor identities.
All other data to be collected or seized or disclosed will require a court warrant.
Service providers are required to cooperate and assist law enforcement authorities in the
collection or recording of the above-stated information.
The court warrant required under this section shall only be issued or granted upon
written application and the examination under oath or affirmation of the applicant and
the witnesses he may produce and the showing: (1) that there are reasonable grounds
to believe that any of the crimes enumerated hereinabove has been committed, or is
being committed, or is about to be committed; (2) that there are reasonable grounds to
believe that evidence that will be obtained is essential to the conviction of any person
for, or to the solution of, or to the prevention of, any such crimes; and (3) that there are
no other means readily available for obtaining such evidence.
Petitioners assail the grant to law enforcement agencies of the power to collect or record
traffic data in real time as tending to curtail civil liberties or provide opportunities for
37
official abuse. They claim that data showing where digital messages come from, what
kind they are, and where they are destined need not be incriminating to their senders or
recipients before they are to be protected. Petitioners invoke the right of every individual
to privacy and to be protected from government snooping into the messages or
information that they send to one another.
The first question is whether or not Section 12 has a proper governmental purpose since
a law may require the disclosure of matters normally considered private but then only
upon showing that such requirement has a rational relation to the purpose of the law,
that there is a compelling State interest behind the law, and that the provision itself is
narrowly drawn. In assessing regulations affecting privacy rights, courts should balance
the legitimate concerns of the State against constitutional guarantees.
Undoubtedly, the State has a compelling interest in enacting the cybercrime law for
there is a need to put order to the tremendous activities in cyberspace for public good.
To do this, it is within the realm of reason that the government should be able to
monitor traffic data to enhance its ability to combat all sorts of cybercrimes.
Chapter IV of the cybercrime law, of which the collection or recording of traffic data is a
part, aims to provide law enforcement authorities with the power they need for spotting,
preventing, and investigating crimes committed in cyberspace. Crime-fighting is a state
business. Indeed, as Chief Justice Sereno points out, the Budapest Convention on
Cybercrimes requires signatory countries to adopt legislative measures to empower
state authorities to collect or record "traffic data, in real time, associated with specified
communications." And this is precisely what Section 12 does. It empowers law
enforcement agencies in this country to collect or record such data.
But is not evidence of yesterday’s traffic data, like the scene of the crime after it has
been committed, adequate for fighting cybercrimes and, therefore, real-time data is
superfluous for that purpose? Evidently, it is not. Those who commit the crimes of
accessing a computer system without right, transmitting viruses, lasciviously exhibiting
sexual organs or sexual activity for favor or consideration; and producing child
pornography could easily evade detection and prosecution by simply moving the physical
location of their computers or laptops from day to day. In this digital age, the wicked
can commit cybercrimes from virtually anywhere: from internet cafés, from kindred
places that provide free internet services, and from unregistered mobile internet
connectors. Criminals using cellphones under pre-paid arrangements and with
unregistered SIM cards do not have listed addresses and can neither be located nor
identified. There are many ways the cyber criminals can quickly erase their tracks. Those
who peddle child pornography could use relays of computers to mislead law enforcement
authorities regarding their places of operations. Evidently, it is only real-time traffic data
collection or recording and a subsequent recourse to court-issued search and seizure
warrant that can succeed in ferreting them out.
Petitioners of course point out that the provisions of Section 12 are too broad and do not
provide ample safeguards against crossing legal boundaries and invading the people’s
right to privacy. The concern is understandable. Indeed, the Court recognizes in Morfe v.
Mutuc that certain constitutional guarantees work together to create zones of privacy
wherein governmental powers may not intrude, and that there exists an independent
constitutional right of privacy. Such right to be left alone has been regarded as the
beginning of all freedoms.
But that right is not unqualified. In Whalen v. Roe, the United States Supreme Court
classified privacy into two categories: decisional privacy and informational privacy.
Decisional privacy involves the right to independence in making certain important
38
decisions, while informational privacy refers to the interest in avoiding disclosure of
personal matters. It is the latter right—the right to informational privacy—that those
who oppose government collection or recording of traffic data in real-time seek to
protect.
Informational privacy has two aspects: the right not to have private information
disclosed, and the right to live freely without surveillance and intrusion. In determining
whether or not a matter is entitled to the right to privacy, this Court has laid down a
two-fold test. The first is a subjective test, where one claiming the right must have an
actual or legitimate expectation of privacy over a certain matter. The second is an
objective test, where his or her expectation of privacy must be one society is prepared
to accept as objectively reasonable.
Since the validity of the cybercrime law is being challenged, not in relation to its
application to a particular person or group, petitioners’ challenge to Section 12 applies to
all information and communications technology (ICT) users, meaning the large segment
of the population who use all sorts of electronic devices to communicate with one
another. Consequently, the expectation of privacy is to be measured from the general
public’s point of view. Without reasonable expectation of privacy, the right to it would
have no basis in fact.
As the Solicitor General points out, an ordinary ICT user who courses his communication
through a service provider, must of necessity disclose to the latter, a third person, the
traffic data needed for connecting him to the recipient ICT user. For example, an ICT
user who writes a text message intended for another ICT user must furnish his service
provider with his cellphone number and the cellphone number of his recipient,
accompanying the message sent. It is this information that creates the traffic data.
Transmitting communications is akin to putting a letter in an envelope properly
addressed, sealing it closed, and sending it through the postal service. Those who post
letters have no expectations that no one will read the information appearing outside the
envelope.
Computer data—messages of all kinds—travel across the internet in packets and in a
way that may be likened to parcels of letters or things that are sent through the posts.
When data is sent from any one source, the content is broken up into packets and
around each of these packets is a wrapper or header. This header contains the traffic
data: information that tells computers where the packet originated, what kind of data is
in the packet (SMS, voice call, video, internet chat messages, email, online browsing
data, etc.), where the packet is going, and how the packet fits together with other
packets. The difference is that traffic data sent through the internet at times across the
ocean do not disclose the actual names and addresses (residential or office) of the
sender and the recipient, only their coded internet protocol (IP) addresses. The packets
travel from one computer system to another where their contents are pieced back
together.
Section 12 does not permit law enforcement authorities to look into the contents of the
messages and uncover the identities of the sender and the recipient.
For example, when one calls to speak to another through his cellphone, the service
provider’s communication’s system will put his voice message into packets and send
them to the other person’s cellphone where they are refitted together and heard. The
latter’s spoken reply is sent to the caller in the same way. To be connected by the
service provider, the sender reveals his cellphone number to the service provider when
he puts his call through. He also reveals the cellphone number to the person he calls.
The other ways of communicating electronically follow the same basic pattern.
39
In Smith v. Maryland, cited by the Solicitor General, the United States Supreme Court
reasoned that telephone users in the ‘70s must realize that they necessarily convey
phone numbers to the telephone company in order to complete a call. That Court ruled
that even if there is an expectation that phone numbers one dials should remain private,
such expectation is not one that society is prepared to recognize as reasonable.
In much the same way, ICT users must know that they cannot communicate or
exchange data with one another over cyberspace except through some service providers
to whom they must submit certain traffic data that are needed for a successful
cyberspace communication. The conveyance of this data takes them out of the private
sphere, making the expectation to privacy in regard to them an expectation that society
is not prepared to recognize as reasonable.
The Court, however, agrees with Justices Carpio and Brion that when seemingly random
bits of traffic data are gathered in bulk, pooled together, and analyzed, they reveal
patterns of activities which can then be used to create profiles of the persons under
surveillance. With enough traffic data, analysts may be able to determine a person’s
close associations, religious views, political affiliations, even sexual preferences. Such
information is likely beyond what the public may expect to be disclosed, and clearly falls
within matters protected by the right to privacy. But has the procedure that Section 12
of the law provides been drawn narrowly enough to protect individual rights?
Section 12 empowers law enforcement authorities, "with due cause," to collect or record
by technical or electronic means traffic data in real-time. Petitioners point out that the
phrase "due cause" has no precedent in law or jurisprudence and that whether there is
due cause or not is left to the discretion of the police. Replying to this, the Solicitor
General asserts that Congress is not required to define the meaning of every word it
uses in drafting the law.
Indeed, courts are able to save vague provisions of law through statutory construction.
But the cybercrime law, dealing with a novel situation, fails to hint at the meaning it
intends for the phrase "due cause." The Solicitor General suggests that "due cause"
should mean "just reason or motive" and "adherence to a lawful procedure." But the
Court cannot draw this meaning since Section 12 does not even bother to relate the
collection of data to the probable commission of a particular crime. It just says, "with
due cause," thus justifying a general gathering of data. It is akin to the use of a general
search warrant that the Constitution prohibits.
Due cause is also not descriptive of the purpose for which data collection will be used.
Will the law enforcement agencies use the traffic data to identify the perpetrator of a
cyber attack? Or will it be used to build up a case against an identified suspect? Can the
data be used to prevent cybercrimes from happening?
The authority that Section 12 gives law enforcement agencies is too sweeping and lacks
restraint. While it says that traffic data collection should not disclose identities or content
data, such restraint is but an illusion. Admittedly, nothing can prevent law enforcement
agencies holding these data in their hands from looking into the identity of their sender
or receiver and what the data contains. This will unnecessarily expose the citizenry to
leaked information or, worse, to extortion from certain bad elements in these agencies.
Section 12, of course, limits the collection of traffic data to those "associated with
specified communications." But this supposed limitation is no limitation at all since,
evidently, it is the law enforcement agencies that would specify the target
communications. The power is virtually limitless, enabling law enforcement authorities to
40
engage in "fishing expedition," choosing whatever specified communication they want.
This evidently threatens the right of individuals to privacy.
The Solicitor General points out that Section 12 needs to authorize collection of traffic
data "in real time" because it is not possible to get a court warrant that would authorize
the search of what is akin to a "moving vehicle." But warrantless search is associated
with a police officer’s determination of probable cause that a crime has been committed,
that there is no opportunity for getting a warrant, and that unless the search is
immediately carried out, the thing to be searched stands to be removed. These
preconditions are not provided in Section 12.
The Solicitor General is honest enough to admit that Section 12 provides minimal
protection to internet users and that the procedure envisioned by the law could be better
served by providing for more robust safeguards. His bare assurance that law
enforcement authorities will not abuse the provisions of Section 12 is of course not
enough. The grant of the power to track cyberspace communications in real time and
determine their sources and destinations must be narrowly drawn to preclude abuses.
Petitioners also ask that the Court strike down Section 12 for being violative of the void-
for-vagueness doctrine and the overbreadth doctrine. These doctrines however, have
been consistently held by this Court to apply only to free speech cases. But Section 12
on its own neither regulates nor punishes any type of speech. Therefore, such analysis is
unnecessary.
This Court is mindful that advances in technology allow the government and kindred
institutions to monitor individuals and place them under surveillance in ways that have
previously been impractical or even impossible. "All the forces of a technological age x x
x operate to narrow the area of privacy and facilitate intrusions into it. In modern terms,
the capacity to maintain and support this enclave of private life marks the difference
between a democratic and a totalitarian society." The Court must ensure that laws
seeking to take advantage of these technologies be written with specificity and
definiteness as to ensure respect for the rights that the Constitution guarantees.
Sec. 13. Preservation of Computer Data. — The integrity of traffic data and subscriber
information relating to communication services provided by a service provider shall be
preserved for a minimum period of six (6) months from the date of the transaction.
Content data shall be similarly preserved for six (6) months from the date of receipt of
the order from law enforcement authorities requiring its preservation.
Law enforcement authorities may order a one-time extension for another six (6)
months: Provided, That once computer data preserved, transmitted or stored by a
service provider is used as evidence in a case, the mere furnishing to such service
provider of the transmittal document to the Office of the Prosecutor shall be deemed a
notification to preserve the computer data until the termination of the case.
The service provider ordered to preserve computer data shall keep confidential the order
and its compliance.
Petitioners in G.R. 20339197 claim that Section 13 constitutes an undue deprivation of
the right to property. They liken the data preservation order that law enforcement
authorities are to issue as a form of garnishment of personal property in civil forfeiture
proceedings. Such order prevents internet users from accessing and disposing of traffic
data that essentially belong to them.
No doubt, the contents of materials sent or received through the internet belong to their
authors or recipients and are to be considered private communications. But it is not
41
clear that a service provider has an obligation to indefinitely keep a copy of the same as
they pass its system for the benefit of users. By virtue of Section 13, however, the law
now requires service providers to keep traffic data and subscriber information relating to
communication services for at least six months from the date of the transaction and
those relating to content data for at least six months from receipt of the order for their
preservation.
Actually, the user ought to have kept a copy of that data when it crossed his computer if
he was so minded. The service provider has never assumed responsibility for their loss
or deletion while in its keep.
At any rate, as the Solicitor General correctly points out, the data that service providers
preserve on orders of law enforcement authorities are not made inaccessible to users by
reason of the issuance of such orders. The process of preserving data will not unduly
hamper the normal transmission or use of the same.
Sec. 14. Disclosure of Computer Data. — Law enforcement authorities, upon securing a
court warrant, shall issue an order requiring any person or service provider to disclose or
submit subscriber’s information, traffic data or relevant data in his/its possession or
control within seventy-two (72) hours from receipt of the order in relation to a valid
complaint officially docketed and assigned for investigation and the disclosure is
necessary and relevant for the purpose of investigation.
The process envisioned in Section 14 is being likened to the issuance of a subpoena.
Petitioners’ objection is that the issuance of subpoenas is a judicial function. But it is
well-settled that the power to issue subpoenas is not exclusively a judicial function.
Executive agencies have the power to issue subpoena as an adjunct of their
investigatory powers.
Besides, what Section 14 envisions is merely the enforcement of a duly issued court
warrant, a function usually lodged in the hands of law enforcers to enable them to carry
out their executive functions. The prescribed procedure for disclosure would not
constitute an unlawful search or seizure nor would it violate the privacy of
communications and correspondence. Disclosure can be made only after judicial
intervention.
Sec. 15. Search, Seizure and Examination of Computer Data. — Where a search and
seizure warrant is properly issued, the law enforcement authorities shall likewise have
the following powers and duties.
Within the time period specified in the warrant, to conduct interception, as defined in
this Act, and:
(a) To secure a computer system or a computer data storage medium;
(b) To make and retain a copy of those computer data secured;
(c) To maintain the integrity of the relevant stored computer data;
(d) To conduct forensic analysis or examination of the computer data storage medium;
and
(e) To render inaccessible or remove those computer data in the accessed computer or
computer and communications network.
Pursuant thereof, the law enforcement authorities may order any person who has
knowledge about the functioning of the computer system and the measures to protect
42
and preserve the computer data therein to provide, as is reasonable, the necessary
information, to enable the undertaking of the search, seizure and examination.
Law enforcement authorities may request for an extension of time to complete the
examination of the computer data storage medium and to make a return thereon but in
no case for a period longer than thirty (30) days from date of approval by the court.
Petitioners challenge Section 15 on the assumption that it will supplant established
search and seizure procedures. On its face, however, Section 15 merely enumerates the
duties of law enforcement authorities that would ensure the proper collection,
preservation, and use of computer system or data that have been seized by virtue of a
court warrant. The exercise of these duties do not pose any threat on the rights of the
person from whom they were taken. Section 15 does not appear to supersede existing
search and seizure rules but merely supplements them.
Sec. 17. Destruction of Computer Data. — Upon expiration of the periods as provided in
Sections 13 and 15, service providers and law enforcement authorities, as the case may
be, shall immediately and completely destroy the computer data subject of a
preservation and examination.
Section 17 would have the computer data, previous subject of preservation or
examination, destroyed or deleted upon the lapse of the prescribed period. The Solicitor
General justifies this as necessary to clear up the service provider’s storage systems and
prevent overload. It would also ensure that investigations are quickly concluded.
Petitioners claim that such destruction of computer data subject of previous preservation
or examination violates the user’s right against deprivation of property without due
process of law. But, as already stated, it is unclear that the user has a demandable right
to require the service provider to have that copy of the data saved indefinitely for him in
its storage system. If he wanted them preserved, he should have saved them in his
computer when he generated the data or received it. He could also request the service
provider for a copy before it is deleted.
Section 19 empowers the Department of Justice to restrict or block access to computer
data:
Sec. 19. Restricting or Blocking Access to Computer Data.— When a computer data is
prima facie found to be in violation of the provisions of this Act, the DOJ shall issue an
order to restrict or block access to such computer data.
Petitioners contest Section 19 in that it stifles freedom of expression and violates the
right against unreasonable searches and seizures. The Solicitor General concedes that
this provision may be unconstitutional. But since laws enjoy a presumption of
constitutionality, the Court must satisfy itself that Section 19 indeed violates the
freedom and right mentioned.
Computer data may refer to entire programs or lines of code, including malware, as well
as files that contain texts, images, audio, or video recordings. Without having to go into
a lengthy discussion of property rights in the digital space, it is indisputable that
computer data, produced or created by their writers or authors may constitute personal
property. Consequently, they are protected from unreasonable searches and seizures,
whether while stored in their personal computers or in the service provider’s systems.
Section 2, Article III of the 1987 Constitution provides that the right to be secure in
one’s papers and effects against unreasonable searches and seizures of whatever nature
and for any purpose shall be inviolable. Further, it states that no search warrant shall
43
issue except upon probable cause to be determined personally by the judge. Here, the
Government, in effect, seizes and places the computer data under its control and
disposition without a warrant. The Department of Justice order cannot substitute for
judicial search warrant.
The content of the computer data can also constitute speech. In such a case, Section 19
operates as a restriction on the freedom of expression over cyberspace. Certainly not all
forms of speech are protected. Legislature may, within constitutional bounds, declare
certain kinds of expression as illegal. But for an executive officer to seize content alleged
to be unprotected without any judicial warrant, it is not enough for him to be of the
opinion that such content violates some law, for to do so would make him judge, jury,
and executioner all rolled into one.
Not only does Section 19 preclude any judicial intervention, but it also disregards
jurisprudential guidelines established to determine the validity of restrictions on speech.
Restraints on free speech are generally evaluated on one of or a combination of three
tests: the dangerous tendency doctrine, the balancing of interest test, and the clear and
present danger rule. Section 19, however, merely requires that the data to be blocked
be found prima facie in violation of any provision of the cybercrime law. Taking Section 6
into consideration, this can actually be made to apply in relation to any penal provision.
It does not take into consideration any of the three tests mentioned above.
The Court is therefore compelled to strike down Section 19 for being violative of the
constitutional guarantees to freedom of expression and against unreasonable searches
and seizures.
Sec. 20. Noncompliance. — Failure to comply with the provisions of Chapter IV hereof
specifically the orders from law enforcement authorities shall be punished as a violation
of Presidential Decree No. 1829 with imprisonment of prision correctional in its
maximum period or a fine of One hundred thousand pesos (Php100,000.00) or both, for
each and every noncompliance with an order issued by law enforcement authorities.
Petitioners challenge Section 20, alleging that it is a bill of attainder. The argument is
that the mere failure to comply constitutes a legislative finding of guilt, without regard to
situations where non-compliance would be reasonable or valid.
But since the non-compliance would be punished as a violation of Presidential Decree
(P.D.) 1829, Section 20 necessarily incorporates elements of the offense which are
defined therein. If Congress had intended for Section 20 to constitute an offense in and
of itself, it would not have had to make reference to any other statue or provision.
P.D. 1829 states:
Section 1. The penalty of prision correccional in its maximum period, or a fine ranging
from 1,000 to 6,000 pesos, or both, shall be imposed upon any person who knowingly or
willfully obstructs, impedes, frustrates or delays the apprehension of suspects and the
investigation and prosecution of criminal cases by committing any of the following acts:
x x x.
Thus, the act of non-compliance, for it to be punishable, must still be done "knowingly or
willfully." There must still be a judicial determination of guilt, during which, as the
Solicitor General assumes, defense and justifications for non-compliance may be raised.
Thus, Section 20 is valid insofar as it applies to the provisions of Chapter IV which are
not struck down by the Court.
Sections 24 and 26(a) of the Cybercrime Law
Sections 24 and 26(a) provide:
44
Sec. 24. Cybercrime Investigation and Coordinating Center.– There is hereby created,
within thirty (30) days from the effectivity of this Act, an inter-agency body to be known
as the Cybercrime Investigation and Coordinating Center (CICC), under the
administrative supervision of the Office of the President, for policy coordination among
concerned agencies and for the formulation and enforcement of the national
cybersecurity plan.
Sec. 26. Powers and Functions.– The CICC shall have the following powers and
functions:
(a) To formulate a national cybersecurity plan and extend immediate assistance of real
time commission of cybercrime offenses through a computer emergency response team
(CERT); x x x.
Petitioners mainly contend that Congress invalidly delegated its power when it gave the
Cybercrime Investigation and Coordinating Center (CICC) the power to formulate a
national cybersecurity plan without any sufficient standards or parameters for it to
follow.
In order to determine whether there is undue delegation of legislative power, the Court
has adopted two tests: the completeness test and the sufficient standard test. Under the
first test, the law must be complete in all its terms and conditions when it leaves the
legislature such that when it reaches the delegate, the only thing he will have to do is to
enforce it. The second test mandates adequate guidelines or limitations in the law to
determine the boundaries of the delegate’s authority and prevent the delegation from
running riot.
Here, the cybercrime law is complete in itself when it directed the CICC to formulate and
implement a national cybersecurity plan. Also, contrary to the position of the petitioners,
the law gave sufficient standards for the CICC to follow when it provided a definition of
cybersecurity.
Cybersecurity refers to the collection of tools, policies, risk management approaches,
actions, training, best practices, assurance and technologies that can be used to protect
cyber environment and organization and user’s assets. This definition serves as the
parameters within which CICC should work in formulating the cybersecurity plan.
Further, the formulation of the cybersecurity plan is consistent with the policy of the law
to "prevent and combat such [cyber] offenses by facilitating their detection,
investigation, and prosecution at both the domestic and international levels, and by
providing arrangements for fast and reliable international cooperation." This policy is
clearly adopted in the interest of law and order, which has been considered as sufficient
standard. Hence, Sections 24 and 26(a) are likewise valid.
WHEREFORE, the Court DECLARES:
1. VOID for being UNCONSTITUTIONAL:
a. Section 4(c)(3) of Republic Act 10175 that penalizes posting of unsolicited commercial
communications;
b. Section 12 that authorizes the collection or recording of traffic data in real-time; and
c. Section 19 of the same Act that authorizes the Department of Justice to restrict or
block access to suspected Computer Data.
2. VALID and CONSTITUTIONAL:
a. Section 4(a)(1) that penalizes accessing a computer system without right;
b. Section 4(a)(3) that penalizes data interference, including transmission of viruses;
c. Section 4(a)(6) that penalizes cyber-squatting or acquiring domain name over the
internet in bad faith to the prejudice of others;
45
d. Section 4(b)(3) that penalizes identity theft or the use or misuse of identifying
information belonging to another;
e. Section 4(c)(1) that penalizes cybersex or the lascivious exhibition of sexual organs or
sexual activity for favor or consideration;
f. Section 4(c)(2) that penalizes the production of child pornography;
g. Section 6 that imposes penalties one degree higher when crimes defined under the
Revised Penal Code are committed with the use of information and communications
technologies;
h. Section 8 that prescribes the penalties for cybercrimes;
i. Section 13 that permits law enforcement authorities to require service providers to
preserve traffic data and subscriber information as well as specified content data for six
months;
j. Section 14 that authorizes the disclosure of computer data under a court-issued
warrant;
k. Section 15 that authorizes the search, seizure, and examination of computer data
under a court-issued warrant;
l. Section 17 that authorizes the destruction of previously preserved computer data after
the expiration of the prescribed holding periods;
m. Section 20 that penalizes obstruction of justice in relation to cybercrime
investigations;
n. Section 24 that establishes a Cybercrime Investigation and Coordinating Center
(CICC);
o. Section 26(a) that defines the CICC’s Powers and Functions; and
p. Articles 353, 354, 361, and 362 of the Revised Penal Code that penalizes libel.
Further, the Court DECLARES:
1. Section 4(c)(4) that penalizes online libel as VALID and CONSTITUTIONAL with
respect to the original author of the post; but VOID and UNCONSTITUTIONAL with
respect to others who simply receive the post and react to it; and
2. Section 5 that penalizes aiding or abetting and attempt in the commission of
cybercrimes as VA L I D and CONSTITUTIONAL only in relation to Section 4(a)(1) on
Illegal Access, Section 4(a)(2) on Illegal Interception, Section 4(a)(3) on Data
Interference, Section 4(a)(4) on System
Interference, Section 4(a)(5) on Misuse of Devices, Section 4(a)(6) on Cyber-squatting,
Section 4(b)(1) on Computer-related Forgery, Section 4(b)(2) on Computer-related
Fraud, Section 4(b)(3) on Computer-related Identity Theft, and Section 4(c)(1) on
Cybersex; but VOID and UNCONSTITUTIONAL with respect to Sections 4(c)(2) on Child
Pornography, 4(c)(3) on Unsolicited Commercial Communications, and 4(c)(4) on online
Libel.
Lastly, the Court RESOLVES to LEAVE THE DETERMINATION of the correct application of
Section 7 that authorizes prosecution of the offender under both the Revised Penal Code
and Republic Act 10175 to actual cases, WITH THE EXCEPTION of the crimes of:
1. Online libel as to which, charging the offender under both Section 4(c)(4) of Republic
Act 10175 and Article 353 of the Revised Penal Code constitutes a violation of the
proscription against double jeopardy; as well as
2. Child pornography committed online as to which, charging the offender under both
Section 4(c)(2) of Republic Act 10175 and Republic Act 9775 or the Anti-Child
Pornography Act of 2009 also constitutes a violation of the same proscription, and, in
respect to these, is VOID and UNCONSTITUTIONAL.
SO ORDERED.
46
x------------------------------------------------------------------------------------------------x
PRINCIPAL BY INDISPENSIBLE COOPERATION
G.R. Nos. 102361-62 May 14, 1993
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. RUDY FRONDA, defendant-
appellant.
The Solicitor General for plaintiff-appellee.
Juan T. Antonio for accused-appellant.
BIDIN, J.:
Appellant, Rudy Fronda, together with Reynaldo Agcaoili were charged with murder
before Branch 10 of the Regional Trial Court of Cagayan in two separate information,
Criminal Cases No. 10-304 and 10-308 alleged to have been committed in conspiracy
with several John Does. Appellant and his co-accused were accused of killing the
brothers Esminio and Edwin Balaan of Allacapan, Cagayan in the two identically worded
informations alleging the offense to have been committed as follows:
That on or about June 11, 1968, in the municipality of Allacapan, province of Cagayan,
and within the jurisdiction of this Honorable Court, the said accused, Reynaldo Agcaoili
and Rudy Fronda, together with several John Does who were not identified, armed with
guns and sharp-pointed instruments, conspiring together and helping one another, with
intent to kill, with evident premeditation, with treachery, inconsideration of a price or
reward and with the aid of armed men, forcibly took one Edwin Balaan from his
residence and brought him tothe mountains of Barangay Tulong, Allacapan,Cagayan,
and there and then, the accused, in pursuance of their conspiracy, did then and there
wilfully, unlawfully, and feloniously assault, attack torture and stabbed (sic) the said
Edwin Balaan/Esmenio Balaan inflicting upon him wounds on his body which cause his
death. (Rollo, pp. 122-123)
On May 29, 1989, Reynaldo Agcaoili was arrested but was subsequently released on bail
two days after. On June 2, 1989, appellant Rudy Fronda was arrested and detained.
Upon arraignment, both appellant and accused Reynaldo Agcaoili pleaded not guilty to
the charge of murder. Thereafter, trial ensued.
On August 7, 1991, the trial court promulgated its decision convicting appellant and
acquitting Reynaldo Agcaoili of the crime charged, the decretal portion of which reads:
WHEREFORE, under cool reflection and fortified by the balm of clear judicial conscience,
the Court enters a verdict of acquittal in favor of the accused Reynaldo Agcaoili for the
crime of murder as charged, in both Criminal Cases Nos. 10-304 and 10-308, with costs
de oficio. His bail bond is cancelled and the documents submitted in support thereof may
now be withdrawn from the records under proper receipt.
As against the accused Rudy Fronda, the Court finds him guilty beyond reasonable doubt
as principal by indispensable cooperation for the crime of murder as charged in both
Criminal Cases Nos. 10-304 and 10-308, and sentences him to suffer in each case, the
penalty of RECLUSION PERPETUA, with all the accessory penalties provided for by law
and to pay the costs. He is ordered to each pay (sic) the heirs of the deceased Edwin
(Eduardo) Balaan and Esminio Balaan, the amount of:
1. P50,000.00 — compensatory damages
2. P50,000.00 — death indemnity
3. P20,000.00 — moral damages
4. P30,000.00 — exemplary damages
5. P15,000.00 — expenses during the wake of Esmenio Balan
6. P10,000.00 — expenses during the wake of Edwin Balaan.
47
all for the grand total of Three Hundred Twenty Five Thousand (P325,000.00) Pesos, but
without subsidiary imprisonment in case of insolvency.
In the service hereof, the accused Rudy Fronda shall be entitled to the full length of
time, he underwent preventive imprisonment, provided he voluntarily agreed in writing
to abide by the same disciplinary rules imposed upon convicted prisoners, otherwise, he
shall be credited to only four fifth (4/5) thereof. (Art. 29, NCC, as amended by RA 617,
June 17, 1979; US vs. Ortencio; 38 Phil. 341; People vs. Chavez, 126 SCRA 1).
MORE, there being two (2) perpetual penalties imposed upon the accused Rudy Fronda
the maximum simultaneous service of his sentence shall in no case exceed forty (40)
years. (Art.70, RPC, amended by Com. Act No. 217, threefold rule).
xxx xxx xxx
SO ORDERED. (Rollo, pp. 76-77).
The antecedent facts, as found by the trial court are as follows:
At about 6:00 o'clock in the morning of June 11, 1986, the deceased Eduardo (Edwin)
Balaan And Esminio Balaan who are brothers, were take by seven (7) armed men in
fatigue uniform with long firearms, suspected to be NPA members, accompanied by
accused Rudy Fronda and Roderick Padua from the house of one Ferminio Balaan, at
Barangay Cataratan, Allacapan, Cagayan. The said Rudy Fronda and Roderick Padua are
residents of the same place. The armed men tied the hands of the deceased at their
back lying down face downward, in front of the house of Ferminio Balaan. The armed
men together with Roderick Padua and Rudy Fronda proceeded towards sitio Tulong,
Cataratan, Allacapan, Cagayan passing through the ricefields (taking along with them
the Balaan brothers). xxx xxx xxx
Accused Rudy Fronda testified that on the night of June 10, 1986, he was taken by the
NPA's from his house, accompanied by Robert Peralta, alias Ka Jun and Roderick Padua,
to look for the Balaan brothers. They were around nine (9) NPA's with then. They found
Edwin Balaan and Esmineo Balaan, at the house of Ferminio Balaan, a brother. They tied
their wrists/hands and brought them to the mountain at Sitio Tulong, Cataratan,
Allacapan, Cagayan. After that, the NPA's instructed them to go home, but in the
afternoon of the same day June 11, 1986, Robert Peralta, alias Ka Jun, sent Elmer
Martinez, Orlando Gonzales, George Peralta and Librado Duran to get him and further he
was ordered to get a spade and a crowbar. They were ordered to dig a hole in the
mountain, one (1) kilometer away from his house.
On March 21, 1989, the bodies or remains of the Balaan brothers were examined by the
17th Infantry Battalion, under Capt. Benedicto. After which, the remains, (bones) were
brought to the house of one Freddie Arevalo, a relative of the deceased, at Barangay
Cataratan, where they were laid in state for the wake. (Rollo, pp. 27-29)
In its decision, the trial court made a lengthy enumeration of established facts and
circumstances which was made the basis of the conviction of appellant, to wit :
1) Appellant and Roderick Padua, and NPA member were the ones who pointed the
house where the brothers Balaan were to be found, 2) appellant and Roderick Padua
accompanied the members of the armed group to said house, and tied the victims'
hands, 3) appellant was handed a hunting knife by one of the armed men when they left
the house, 4) appellant joined the members of the armed group in bringing the victims
to a forested area in the mountains, 5) it was appellant who provided the spade and
crowbar used in digging the hole where the Balaan brothers were buried, 6) appellant
was the one who pointed the location where the victms' bodies buried, 7) appellant, for
a period of more than three (3) years, failed to report the incident to the authorities,
48
and 8) appellant did not in any way object, when he was ordered to tie the hands of the
victims.
On the basis of the foregoing, the trial court declared:
In fine, all of these circumstances constitute a unbroken chain which leads to a fair
conclusion that accused Rudy Fronda is guilty as a principal by indispensable cooperation
(People vs. Colinares, 163 SCRA 313), even as the same circumstances are inconsistent
with each other, and at the same time inconsistent with any other hypothesis, except
that of guilty (People vs. Trinidad 162 SCRA 714), all cited in the recent case of People
vs. Tiongson, G.R. No. 89823, June 19, 1991).
It is crystal clear and conclusion is inescapable that his cooperation was indeed
indispensable in the consumation of the crime charged, without which it would not have
been accomplished, (Art. 17, No. 3, RPC).
Accused Rudy Fronda shared the guilty purpose and encouraged and abetted the crime
by his actuations as above illustrated, even though he may have taken no part in the
execution. The chain of circumstances as narrated above will show that he has rendered
the required assistance intentionally and knowingly, which led to the execution of the
felony. His external acts more than explain his participation as principal by indispensable
cooperation. Such external overt acts, are more than significant enough constittuting
convincing proof leading to the ineluctable finding that accused Rudy Fronda is guilty as
such. (Rollo, pp. 74-75)
Appellant assails the decision of the trial court, setting forth the following assignment of
errors:
I.
THE TRIAL COURT ERRED IN FINDING THE ACCUSED-APPELLANT GUILTY OF MURDER
IN TWO COUNTS AND SENTENCING HIM TO SUFFER THE PENALTY OF RECLUSION
PERPETUA IN EACH COUNT.
II.
THE TRIAL COURT ERRED IN FINDING THE ACCUSED-APPELLANT GUILTY BEYOND
REASONABLE DOUBT BY CIRCUMSTANTIAL EVIDENCE. (Appellant's Brief, p. 1)
Accused-appellant maintains that the prosecution was not able to present evidence to
prove his participation in the killing of the brothers Balaan. The defense submits that
appellant was merely taken by the armed men as a "pointer" and as such, he could not
be considered as a principal by indispensable cooperation for the reason that the armed
men could have taken other persons to perform the acts done by appellant.
Furthermore, appellant interposes the exempting circumstance of uncontrollable fear
(Art. 12 [6] RPC) claiming that all his acts were performed under the impulse of
uncontrollable fear and to save his life.
This case hinges on the issue of whether or not accused-appellant could be convicted as
a principal by indispensable cooperation through circumstantial evidence.
Paragraph 3, Article 17, of the Revised Penal Code considers as principals by
indispensable cooperation "those who cooperate in the commission of the offense by
another act without which it could not have been accomplished". Its requisites are (1)
participation of the subject accused in the criminal resolution and (2) performance by
him of another act indispensable to the accomplishment of the crime.
Records show that appellant's participation in the commission of the crime consisted of:
(1) leading the members of the armed group to the house where the victims were
found; (2) tying the victims' hands and (3) digging the grave where the victims were
buried. However, it has been established through the testimony of Alex Utrera, a former
member of the NPA, that appellant was only picked-up by the armed men for the
49
purpose of pointing the residence of the victims. The armed men never disclosed their
purpose in looking for the brothers Balaan who were former members of the Armed
Forces of the Philippines nor did the armed men inform appellant of their plan to abduct
and kill the two brothers.
Save for the open admission of appellant that he was an NPA "supporter", no
incontrovertible proof was adduced by the prosecution supporting the conclusion that
appellant agreed with the members of the armed group to kill the brothers Balaan.
Furthermore, prosecution witnesses Freddie Arevalo and Gilbert Viernes testified that the
members of the armed group were accompanied by, aside from appellant, another
barriomate, Roderick Padua, known to be a member of the NPA (Tsn p. 8 & 76).
Undoubtedly, ever without appelant's participation, the assailants could have easily
located the Balaan brothers thru the assistance of Roderick Padua. Taking account of the
number of the assailants alone, it is apparen that the armed men could have
nevertheless committed the crime easily without the appellant abetting the commission
thereof.
The acts performed by appellant are not, by themselves, indispensable to the killing of
the brothers Balaan. As aforesaid to be considered as a principal by indispensable
cooperation, there must be direct participation in the criminal design by another act
without which the crime could not have been committed. We note that the prosecution
failed to present any evidence tending to establish appellant's conspiracy with the evil
designs of the members of the NPA armed group. Neither was it established that
appellant's acts were of such importance that the crime would not have been committed
without him or that he participated in the actual killing.
Under the circumstances, appellant cannot therefore be considered as a principal by
indispensable cooperation. The trial court, therefore, erred when it found appellant guilty
as a principal by indispensable cooperation.
However, appellant's act of joining the armed men in going to the mountains, and his
failure to object to their unlawful orders, or show any reluctance in obeying the same,
may be considered as circumstances evincing his concurrence with the objectives of the
malefactors and had effectively supplied them with material and moral aid, thereby
making him as an accomplice. He cannot with candor, claim that he was unaware of the
evil intentions of the armed men which may have been the case had appellant merely
guided the group to locate the victims' abodes. On the contrary, appellant himself tied
the victims' hands and even joined the armed men in taking the victims to the hills.
Appellant's complicity is made more manifest by the fact that without any justifiable
reason he failed to report the incident to the authorities for a period of more than three
(3) years.
Article 18 of the Revised Penal Code provides that an accomplice is one who, not being a
principal, "cooperates in the execution of the offense by previous or simultaneous acts".
Under this provision, a person is considered as an accomplice if his role in the
perpetration of the crime is of a minor character. To be convicted as such, it is
necessary that he be aware to the criminal intent of the principal and thereby
cooperates knowingly or intentionally by supplying material or moral aid for the
efficacious execution of the crime.
It is well settled that if there is ample of criminal participation but a doubt exist as to the
nature of liability, courts should resolve to favor the milder form of responsibility, that of
an accomplice. (People vs. Doctolero, 193 SCRA 632, [1991] citing People vs. Torejas,
43 SCRA 158, [1972])
50
Appellant cannot claim the exempting circumstance of uncontrollable fear (Art. 12, par.
6, RPC). Fear in order to be valid should be based on a real, imminent or reasonable fear
for one's life or limb (People vs. Abanes, 73 SCRA 44, [1976]). In the case at bar,
records indicate that appellant was seen being handed by and receiving from one of the
armed men a hunting knife. Also, as afoesaid, appellant was not able to explain his
failure to report the incident to the explain his failure to report the incident to the
authorities for more than three (3) years. These circumstances, among others, establish
the fact that appellant consciously concurred with the acts of the assailants. In order
that the circumstance of uncontrollable fear may apply, it is necessary that the
compulsion be of such a character as to leave no opportunity to escape or self-defense
in equal combat. (People vs. Loreno, 130 SCRA 311, [1984]) Appellant had the
opportunity to escape when he was ordered by the armed men to go hoome after
bringing the victims the mountains. He did not. Instead he joined the armed men when
required to bring a spade with which he was ordered to dig the grave. Appellant also
chose to remain silent for more than three (3) years before reporting the killing to the
authorities. Based on these circumstances, We hold that the contemporaneous and
subsequent acts of appellant cannot be regarded as having been done under the impulse
of uncontrollable fear.
Appellant also argues that the trial court erred when it convicted him of the crime
charged, alleging that no evidence was presented to prove any circumstance that would
qualify the crime committed to murder. Appellant's argument is devoid of merit.
Paragraph 1, Article 248 of the Revised Penal Code provides that any person who kills
another, taking advantage of superior strength shall be guilty of murder, and shall be
punished by reclusion temporal in the maximum period to death. It is manifest that the
group of assailants composed of seven (7) armed men, and two (2) civilians including
appellant Fronda. It had been repeatedly held that the number of assailants, if armed,
may be considered as a qualifying circumstance of abuse of superior strength. It is
indubitable that assailants deliberately used superior force of such nature as to be
clearly out of proportion to the means or defense available to the victims People vs.
Tandoc (40 Phil. 954 [1920]) and People vs. Verzo (21 SCRA 1403 [1967]). The
assailants took advantage of their numbers in order to ensure that the brothers Balaan
who are said to be former members of the Armed Forces of the Philippines would not be
able to put up any defense. The crime thus committed is murder.
Be that as it may, and after considering the attendant circumstances, We hold that
appellant is guilty beyond reasonable doubt as accomplice to the crime charged i.e.
murder. As such, the proper imposable penalty is one degree lower than that prescribed
for murder (Art. 52, Revised Penal Code). The penalty for murder is reclusion temporal
in its maximum period to death (Art. 248, RPC). One degree lower is prision mayor in its
maximum period to reclusion temporal medium (Art. 61 (3), RPC). There being no
mitigating nor agravating circumstances which attended the commission of the crime,
the penalty impossable under the law should be applied in its medium period (Art. 64
[1], RPC) and applying the Indeterminate Sentence Law, appellant is hereby sentenced
in each case to suffer imprisonment ranging from eight (8) years and one (1) day of
prision mayor as minimum to fourteen (14) years eight (8) months and one (1) day of
reclusion temporal as maximum.
WHEREFORE, the appealed decision of the trial court is hereby MODIFIED to the extent
above indicated and AFFIRMED in all other aspects. Costs against appellant.
SO ORDERED.
X------------------------------------------------------------------------------------------------ X
51
G.R. No. 193854 September 24, 2012
PEOPLE OF THE PHILIPPINES, Appellee, vs. DINA DULAY y PASCUAL, Appellant.
DECISION
PERALTA, J.:
This is to resolve an appeal from the Decision dated August 4, 2010 of the Court of
Appeals (CA) in CA-G.R. CR-HC No. 03725 affirming with modification the Decision dated
October 8, 2008 of the Regional Trial Court (RTC), Branch 194, Parañaque City, finding
appellant Dina Dulay guilty beyond reasonable doubt of the crime of Rape under Article
266-A. No. 1 (a) of the Revised Penal Code (RPC) as amended by Republic Act (R.A.)
8353 as a co-principal by indispensable cooperation.
The records bear the following factual antecedents:
Private complainant AAA was 12 years old when the whole incident happened. AAA's
sister introduced the appellant to AAA as someone who is nice. Thereafter, appellant
convinced AAA to accompany her at a wake at GI San Dionisio, Parañaque City. Before
going to the said wake, they went to a casino to look for appellant's boyfriend, but since
he was not there, they went to Sto. Niño at Don Galo. However, appellant's boyfriend
was also not there. When they went to Bulungan Fish Port along the coastal road to ask
for some fish, they saw appellant's boyfriend. Afterwards, AAA, appellant and the latter's
boyfriend proceeded to the Kubuhan located at the back of the Bulungan Fish Port.
When they reached the Kubuhan, appellant suddenly pulled AAA inside a room where a
man known by the name "Speed" was waiting. AAA saw "Speed" give money to
appellant and heard "Speed" tell appellant to look for a younger girl. Thereafter, "Speed"
wielded a knife and tied AAA's hands to the papag and raped her. AAA asked for
appellant's help when she saw the latter peeping into the room while she was being
raped, but appellant did not do so. After the rape, "Speed" and appellant told AAA not to
tell anyone what had happened or else they would get back at her.
AAA went to San Pedro, Laguna after the incident and told her sister what happened and
the latter informed their mother about it. AAA, her sister and mother, filed a complaint
at Barangay San Dionisio. Thereafter, the barangay officials of San Dionisio referred the
complaint to the police station.
The Parañaque City Police Office (Women's and Children Concern Desk) asked the
assistance of the Child Protection Unit of the Philippine General Hospital, upon which the
latter assigned the case to Dr. Merle Tan. Consequently, with the consent of AAA and
her mother, and in the presence of a social worker of the Department of Social Welfare
and Development (DSWD), Dr. Tan conducted the requisite interview and physical
examination on AAA. Later on, Dr. Tan issued a Medico-Legal Report stating that there
was no evident injury in the body of AAA, but medical evaluation cannot exclude sexual
abuse. During her testimony, Dr. Tan explained that such impression or conclusion
pertains to the ano-genital examination and also stated that she found multiple
abrasions on the back portion of the body of AAA.
Thus, an Information was filed, which reads as follows:
That on or about the 3rd day of July 2005, in the City of Parañaque, Philippines and
within the jurisdiction of this Honorable Court, the above-named accused, conspiring and
confederating together with one alias "Speed," whose true name and identity and
present whereabouts is still unknown, and both of them mutually helping and aiding one
another, the herein accused Dina P. Dulay having delivered and offered for a fee
complainant AAA, 12 year old minor, to accused alias "Speed," who with lewd design
and by means of force and intimidation, did then and there willfully, unlawfully and
feloniously have carnal knowledge on said minor complainant AAA against her will and
52
without her consent, which act is prejudicial to the normal growth and development of
the said child.
CONTRARY TO LAW.
With the assistance of counsel de oficio, on August 3, 2005, appellant entered a plea of
not guilty. Therafter, trial on the merits ensued.
To support the above allegations, the prosecution presented the testimonies of AAA and
Dr. Merle Tan. On the other hand, the defense presented the sole testimony of appellant
which can be summarized as follows:
Appellant met AAA a few days before June 2005 when the latter was introduced to her
by her cousin Eglay Akmad during the wake of a relative of AAA at Palanyag. The cousin
of appellant was AAA's neighbor at Palanyag. Around 1 o'clock in the morning of July 3,
2005, appellant averred that she was at La Huerta, at the Bulungan Fish Port in
Parañaque City with her cousin Eglay and stayed there for about thirty (30) minutes.
They then proceeded to the house of appellant's cousin in Palanyag. In the said house,
appellant saw "Speed" and two (2) other male persons. She also saw AAA who was
engaged in a conversation with "Speed" and his two (2) companions. She asked AAA
what she was doing there and the latter said that it was none of her business ("wala
kang pakialam sa akin"). Because of the response of AAA, appellant left the house and
went home to General Trias, Cavite.
On October 8, 2008, the RTC found appellant guilty beyond reasonable doubt of the
crime of rape as co-principal by indispensable cooperation. The dispositive portion of the
decision reads:
WHEREFORE, finding Accused Danilo guilty beyond reasonable doubt for rape as a co-
principal by indispensable cooperation, she is hereby sentenced to suffer an
imprisonment of Reclusion Perpetua under Article 266-B of the Revised Penal Code and
to pay the offended party the amount of ₱ 50,000.00 by way of damages.
The period of her detention shall be considered part of the service of her sentence.
SO ORDERED.
Not satisfied with the judgment of the trial court, the appellant brought the case to the
CA. The latter, on August 4, 2010, promulgated its decision affirming the ruling of the
RTC with a modification on the award of damages, thus:
WHEREFORE, the appealed Decision of the court a quo is AFFIRMED with the
MODIFICATION that the accused-appellant is sentenced to suffer the penalty of reclusion
perpetua and ordered to indemnify the offended party the sum of Fifty Thousand Pesos
(₱ 50,000.00) as civil indemnity, Fifty Thousand Pesos (₱ 50,000.00) as moral damages
and Twenty-Five Thousand Pesos (₱ 25,000.00) as exemplary damages.
SO ORDERED.
Hence, the present appeal.
In her Brief, appellant assigned the following errors:
I
THE COURT A QUO GRAVELY ERRED IN FINDING THE ACCUSED-APPELLANT GUILTY OF
RAPE AS CO-PRINCIPAL BY INDISPENSABLE COOPERATION.
II
THE TRIAL COURT GRAVELY ERRED IN GIVING FULL WEIGHT AND CREDENCE TO THE
TESTIMONY OF THE PRIVATE COMPLAINANT AAA.
The Office of the Solicitor General, representing the appellee, refutes the above
assignment of errors by stating the following arguments:
I.
CONSPIRACY WAS CLEARLY ESTABLISHED IN THIS CASE.
53
II.
THE LOWER COURT DID NOT ERR IN BELIEVING THE TESTIMONY OF PRIVATE
COMPLAINANT.
III.
ACCUSED-APPELLANT'S DEFENSE OF DENIAL CANNOT BE GIVEN GREATER
EVIDENTIARY WEIGHT THAN THE POSITIVE TESTIMONY OF PRIVATE COMPLAINANT.
An appeal in a criminal case throws the whole case wide open for review and the
reviewing tribunal can correct errors, though unassigned in the appealed judgment, or
even reverse the trial court's decision on the basis of grounds other than those that the
parties raised as errors.
The appellant in this case was charged in the Information as having committed the
crime of Rape under Article 266-A, No. 1 (a) of the RPC, as amended by R.A. 8353 in
relation to Section 5 (b) of R.A. 7610. She was eventually convicted by the trial court of
the crime of rape as a co-principal by indispensable cooperation and was sentenced to
suffer imprisonment of reclusion perpetua as provided under Article 266-B of the RPC.
In sustaining the conviction of the appellant as co-principal by indispensable
cooperation, the CA, ratiocinated:
To cooperate means to desire or wish in common a thing. But that common will or
purpose does not necessarily mean previous understanding, for it can be explained or
inferred from the circumstances of each case. The cooperation must be indispensable,
that is, without which the commission of the crime would not have been accomplished. x
The proven facts and circumstances obtaining in this case fall squarely on the above-
cited example. It will be noted that the cooperation of the accused-appellant consisted in
performing an act which is different from the act of execution of the crime committed by
the rapist. Accused-appellant cooperated in the perpetration of the crime of rape
committed by "Speed" by acts without which the crime would not have been
consummated, since she prepared the way for the perpetration thereof, convinced the
victim to go with her under the guise of looking for her boyfriend and upon arrival at the
kubuhan, she pulled the victim inside a room where "Speed" was waiting, delivered the
victim to him, and then after receiving some amount of money from "Speed" she settled
in another room together with her boyfriend so that "Speed" might freely consummate
the rape with violence and intimidation, as he did.
However, this Court is of another view and does not subscribe to the findings of the trial
court, as sustained by the CA that appellant is guilty beyond reasonable doubt as co-
principal by indispensable cooperation in the crime of rape.
Under the Revised Penal Code, an accused may be considered a principal by direct
participation, by inducement, or by indispensable cooperation. To be a principal by
indispensable cooperation, one must participate in the criminal resolution, a conspiracy
or unity in criminal purpose and cooperation in the commission of the offense by
performing another act without which it would not have been accomplished. Nothing in
the evidence presented by the prosecution does it show that the acts committed by
appellant are indispensable in the commission of the crime of rape. The events narrated
by the CA, from the time appellant convinced AAA to go with her until appellant received
money from the man who allegedly raped AAA, are not indispensable in the crime of
rape. Anyone could have accompanied AAA and offered the latter's services in exchange
for money and AAA could still have been raped. Even AAA could have offered her own
services in exchange for monetary consideration and still end up being raped. Thus, this
disproves the indispensable aspect of the appellant in the crime of rape. It must be
remembered that in the Information, as well as in the testimony of AAA, she was
54
delivered and offered for a fee by appellant, thereafter, she was raped by "Speed."
Thus:
PROS. R. GARCIA: Now, what happened after you met this Dina Dulay?
WITNESS AAA: She invited me to go with her boyfriend, Sir.
xxxx
Q: You went to the bulungan, what happened when you reached the fish port or
bulungan, AAA?
A: Pumunta kami sa kubuhan, Sir.
Q: Where is this kubuhan located in relation to the fish port?
A: At the back portion, Sir.
Q: And, when you said pumunta kami, who was then your companion in going to that
kubuhan?
A: Dina Dulay and her boyfriend, Sir.
Q: Do you know the name of the boyfriend of Dina Dulay?
A: No, Sir.
xxxx
Q: All right. After reaching the kubuhan, what happened next?
A: Pina-rape po ako, Sir.
Q: What made you say AAA that accused here Dina Dulay had you raped at the
kubuhan?
A: Kasi po binayaran siya nung lalaki, Sir.
Q: Now, do you know how much this Dina Dulay was paid by that person who was you
said raped you?
A: No, Sir. I just saw them.
Q: And what did you see that was paid to Dina?
A: Pera, Sir.
Q: Aside from seeing a guy giving money to Dina Dulay, did you hear any conversation
between this Dina Dulay and that man who gave money to her?
A: Yes, sir.
Q: Can you tell this Honorable Court AAA, what was that conversation you heard
between this Dina Dulay and the person who gave money to her?
A: He said to look for a younger girl, Sir. x x x
PROS. R. GARCIA:
Q: Okay. After that conversation and the giving of money to Dina Dulay, what happened
to you and the man?
A: He raped me, Sir.
Q: Where were you raped?
A: At the Kubuhan, Sir. Q: Can you describe to this Honorable Court how you were
raped by that person?
A: He tied me up, Sir.
Q: How were you tied up as you said?
A: He tied up both my hands, Sir.
Q: Then after tying your hands what happened next?
A: He raped me and he pointed a knife at me, Sir.
Q: When you said you were raped, are you referring to the insertion of his penis into
your sex organ?
A: Yes, Sir.
Q: And, how did you feel at that time when the organ of this man was inserted into your
organ?
55
A: It was painful, Sir.
Q: And, how did you react when as you said you were being raped by this person?
A: I cannot talk. He put clothes in my mouth, Sir.
Q: For how long did you stay in that kubuhan with this man? May isang oras ba kayo
doon?
A: Yes, Sir.
Q: Now, tell us how AAA many times did this person insert his penis into your organ?
A: Only one (1) AAA, Sir.
It must be clear that this Court respects the findings of the trial court that AAA was
indeed raped by considering the credibility of the testimony of AAA. The rule is that
factual findings of the trial court and its evaluation of the credibility of witnesses and
their testimonies are entitled to great respect and will not be disturbed on appeal.18
However, the review of a criminal case opens up the case in its entirety. The totality of
the evidence presented by both the prosecution and the defense are weighed, thus,
avoiding general conclusions based on isolated pieces of evidence. In the case of rape, a
review begins with the reality that rape is a very serious accusation that is painful to
make; at the same time, it is a charge that is not hard to lay against another by one
with malice in her mind. Because of the private nature of the crime that justifies the
acceptance of the lone testimony of a credible victim to convict, it is not easy for the
accused, although innocent, to disprove his guilt. These realities compel this Court to
approach with great caution and to scrutinize the statements of a victim on whose sole
testimony conviction or acquittal depends.
In this light, while this Court does not find appellant to have committed the crime of
rape as a principal by indispensable cooperation, she is still guilty of violation of Section
5 (a) of R.A. 7610, or the Special Protection of Children Against Abuse, Exploitation and
Discrimination Act, which states that:
Section 5. Child Prostitution and Other Sexual Abuse. – Children, whether male or
female, who for money, profit, or any other consideration or due to the coercion or
influence of any adult, syndicate or group, indulge in sexual intercourse or lascivious
conduct, are deemed to be children exploited in prostitution and other sexual abuse.
The penalty of reclusion temporal in its medium period to reclusion perpetua shall be
imposed upon the following:
(a) Those who engage in or promote, facilitate or induce child prostitution which include,
but are not limited to, the following:
(1) Acting as a procurer of a child prostitute;
(2) Inducing a person to be a client of a child prostitute by means of written or oral
advertisements or other similar means;
(3) Taking advantage of influence or relationship to procure a child as a prostitute;
(4) Threatening or using violence towards a child to engage him as a prostitute; or
(5) Giving monetary consideration goods or other pecuniary benefit to a child with intent
to engage such child in prostitution.
The elements of paragraph (a) are:
1. the accused engages in, promotes, facilitates or induces child prostitution;
2. the act is done through, but not limited to, the following means:
a. acting as a procurer of a child prostitute;
b. inducing a person to be a client of a child prostitute by means of written or oral
advertisements or other similar means;
c. taking advantage of influence or relationship to procure a child as a prostitute;
d. threatening or using violence towards a child to engage him as a prostitute; or
56
e. giving monetary consideration, goods or other pecuniary benefit to a child with intent
to engage such child in prostitution;
3. the child is exploited or intended to be exploited in prostitution and
4. the child, whether male or female, is below 18 years of age.
Paragraph (a) essentially punishes acts pertaining to or connected with child
prostitution. It contemplates sexual abuse of a child exploited in prostitution. In other
words, under paragraph (a), the child is abused primarily for profit.
As alleged in the Information and proven through the testimony of AAA, appellant
facilitated or induced child prostitution. Children, whether male or female, who for
money, profit, or any other consideration or due to the coercion or influence of any
adult, syndicate or group, indulge in sexual intercourse or lascivious conduct, are
deemed to be children exploited in prostitution and other sexual abuse. Thus, the act of
apellant in convincing AAA, who was 12 years old at that time, to go with her and
thereafter, offer her for sex to a man in exchange for money makes her liable under the
above-mentioned law. The purpose of the law is to provide special protection to children
from all forms of abuse, neglect, cruelty, exploitation and discrimination, and other
conditions prejudicial to their development. A child exploited in prostitution may seem to
"consent" to what is being done to her or him and may appear not to complain.
However, we have held that a child who is "a person below eighteen years of age or
those unable to fully take care of themselves or protect themselves from abuse, neglect,
cruelty, exploitation or discrimination because of their age or mental disability or
condition" is incapable of giving rational consent to any lascivious act or sexual
intercourse.
It must be noted that in the Information, it was alleged that appellant was accused of
Rape under Article 266-A, No. 1 (a) of the RPC, as amended by R.A. 8353 in relation to
Section 5 (b) of R.A. 7610, and then went on to enumerate the elements of Section 5
(a) of R.A. 7610 in its body. The Information partly reads:
x x x the herein accused Dina P. Dulay having delivered and offered for a fee
complainant AAA, 12 year old minor, to accused alias "Speed," who with lewd design
and by means of force and intimidation, did then and there willfully, unlawfully and
feloniously have carnal knowledge on said minor complainant AAA against her will and
without her consent x x x
Undoubtedly, the above-quoted falls under Section 5 (a) of R.A. 7610, the appellant
acting as a procurer of a child and inducing the latter into prostitution. It must be
remembered that the character of the crime is not determined by the caption or
preamble of the information nor from the specification of the provision of law alleged to
have been violated, they may be conclusions of law, but by the recital of the ultimate
facts and circumstances in the complaint or information. The sufficiency of an
information is not negated by an incomplete or defective designation of the crime in the
caption or other parts of the information but by the narration of facts and circumstances
which adequately depicts a crime and sufficiently apprises the accused of the nature and
cause of the accusation against him.
To dispute the allegation and the evidence presented by the prosecution, appellant
merely interposes the defense of denial. It is well settled that denial is essentially the
weakest form of defense and it can never overcome an affirmative testimony,
particularly when it comes from the mouth of a credible witness.
Anent the penalty, for violation of the provisions of Section 5, Article III of R.A. 7610,
the penalty prescribed is reclusion temporal in its medium period to reclusion perpetua.
Therefore, in the absence of any mitigating or aggravating circumstance, the proper
57
imposable penalty is reclusion temporal in its maximum period, the medium of the
penalty prescribed by the law. Notwithstanding that R.A. 7610 is a special law, appellant
may enjoy the benefits of the Indeterminate Sentence Law. Since the penalty provided
in R.A. 7610 is taken from the range of penalties in the Revised Penal Code, it is covered
by the first clause of Section 1 of the Indeterminate Sentence Law. Thus, appellant is
entitled to a maximum term which should be within the range of the proper imposable
penalty of reclusion temporal in its maximum period (ranging from 17 years, 4 months
and 1 day to 20 years) and a minimum term to be taken within the range of the penalty
next lower to that prescribed by the law: prision mayor in its medium period to reclusion
temporal in its minimum period (ranging from 8 years and 1 day to 14 years and 8
months).
As to the award of damages, the same must be consistent with the objective of R.A.
7610 to afford children special protection against abuse, exploitation and discrimination
and with the principle that every person who contrary to law, willfully or negligently
causes damage to another shall indemnify the latter for the same.35 Therefore, civil
indemnity to the child is proper in a case involving violation of Section 5 (a), Article III
of R.A. 7610. This is also in compliance with Article 100 of the RPC which states that
every person criminally liable is civilly liable. Hence, the amount of ₱ 50,000.00 civil
indemnity ex delicto as awarded in cases of violation of Section 5 (b), Article III of R.A.
761036 shall also be the same in cases of violation of Section 5 (a), Article III of R.A.
7610.
WHEREFORE, the appeal of appellant Dina Dulay y Pascual is hereby DISMISSED.
However, the Decision of the CA is hereby MODIFIED as appellant is not guilty beyond
reasonable doubt of the crime of rape, but of violating Section 5 (a), Article III R.A.
7610, amended, for which she is sentenced to fourteen (14) years and eight (8) months
of reclusion temporal, as minimum, to twenty (20) years of reclusion temporal, as
maximum. Appellant is also ORDERED to pay AAA the amount of ₱ 50,000.00 as civil
indemnity.
SO ORDERED.
x------------------------------------------------------------------------------------------------x
PRINCIPAL BY INDUCEMENT
G.R. No. L-30912 April 30, 1980
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. AGAPITO DE LA CRUZ,
accused-appellant.
Segundo J. Martinez for accused-appellant.
Solicitor General-Antonio for a appellee.
MELENCIO-HERRERA, J.:
This is an automatic review of the Decision of the Court of First Instance of Basilan City
in Criminal Case No. 1903, finding AGAPITO de la Cruz guilty as principal by of the crime
of Kidnapping and Serious Illegal Detention, and sentencing him to death.
By way of factual backdrop, the evidence establishes that one Antonio Yu owned 200
hectares of rubber and coconut land in Lantawan, Isabela, Basilan City. The victim, Yu
Chi Chong, is his younger brother. The accused, AGAPITO de la Cruz, was an overseer of
Antonio Yu for no less than ten years.
For the kidnapping and slaying of Yu Chi Chong, the City Fiscal of Basilan City filed
against AGAPITO de la Cruz as Amended Information for Kidnapping with Robbery in
Band and Murder, reading:
AMENDED INFORMATION
58
The undersigned City Fiscal of Basilan amending his information on record, accuses
Agapito dela Cruz, Moros Asmad alias Busol Atib Akot, Kohotan alias Arip Alian, Angih
ahas Ayub Alian, Amil alias Iburahim Hambali, Baddih alias Rajah Abduraman, Ajah alias
Hajim Alian, Andali alias Ajing Akdam, Alih Itum alias Sayari Atib Akot, Jamas Jumaidi y
Andas and Oyong Asidin of the crime of kidnapping with robbery in band and murder,
committed as follows:
That on or about the 6th day of March, 1968, and within the jurisdiction of this
Honorable Court, viz., at Lantawan, Isabela, City of Basilan Philippines, the above
named accused, Agapito dela Cruz, as principal by inducement and his co-accused as co-
principal by direct participation, armed with carbine and garand rifles, they being all
private persons, conspiring and confederating together, aiding and assisting one with the
other, did then and there willfully, unlawfully and feloniously, and for the purpose of
extorting money for ransom, kidnap and deprive the liberty of one Yu Chi Chong and
demand the amount of P50,000. 00 as a consideration for, the release of Yu Chi Chong
and when Yu Chi Chong was already in the custody of the accused and taking advantage
of their superior force, take and steal a wrist watch (Rado) worth P150.00 and cash
money in the amount of P400.00, all worth the total amount of P550.00, Philippine
Currency, belonging to said Yu Chi Chong and on the way from Basilan to Sulu, the said
accused with treachery and evident premeditation, assault, attack and shoot Yu Chi
Chong, which caused his death and thereafter dumped the body into the sea.
Contrary to law.
xxx xxx xxx
Of the eleven charged in the Information, only AGAPITO de la Cruz. Jamas Jumaidi and
Oyong Asidin were apprehended. The rest have remained at large.
On September 24, 1968, the City Fiscal asked for the discharge of Jamas Jumaidi and
Oyong Asidin to be utilized as state witnesses. The trial Court granted the Motion.
The evidence of the prosecution rested mainly on the testimonies of the two discharged
witnesses and that of Mohamad Sagap Salip, who all pointed to AGAPITO de la Cruz as
the mastermind in the kidnapping of Yu Chi Chong.
Mohamad Sagap Salip testified that sometime in October, 1967, the accused AGAPITO
met with him, Alih Itum and a certain Asmad, at which he proposed to them the killing
of Antonio Yu and the kidnapping of the younger brother, Yu Chi Chong, for a ransom.
Apparently, Asmad subsequently contacted some people in Jolo, Sulu, for the purpose,
the accused herein among them.
The two discharged witnesses, Jamas Jumaidi and Oyong Asidin narrated what
transpired thereafter as follows: On March 5, 1968, with the other accused, they sailed
for Basilan City on board an outboard watercraft. The watercraft landed on the beach of
Look Sapi, Basilan City, where they met Mohamad Sagap Salip and Alih Itum. They
stayed in Look Sapi until 7:00 o'clock in the evening and then left in the boat for
Bangcao Sapa with Sagap Salip as their guide. (Bangcao Sapa is the landing place
nearest the residence of AGAPITO at Lantawan, Basilan City). They arrived at Bangcao
Sapa at about 7:30 in the evening, and from there walked towards Lantawan. Two of
the members of the group stayed in Bangcao Sapa to guard the motorboat. From
Lantawan, they proceeded to AGAPITO's house, still with Sagap Salip as their guide,
arriving there at about 3:00 o'clock in the morning.
AGAPITO met them when they arrived. He led them upstairs and gave them food. After
eating, AGAPITO informed them that the two Chinese brothers would go to Lantawan on
March 6, 1968 and that they were to kill Antonio Yu and kidnap Yu Chi Chong and
demand ransom of P50,000.00. They agreed that P20,000.00 would go to AGAPITO. and
59
P30,000.00 would be divided equally among the members of the group. After AGAPITO
gave them actions, they rested. He woke them up at 5:00 o'clock in the morning and led
them towards Lantawan to the place of ambush. Sagap Salip, who was through with his
job as the guide, was then gent home by the group, while AGAPITO proceeded to the
camp of Antonio Yu. Baddish a member of the group, was instructed to go to the copra
kiln of Antonio Yu, and hitch a ride in the truck of Yu Chi Chong. The rest of the group
waited in the ambush spot.
In the meantime, Antonio Yu and his brother Yu Chi Chong were preparing to leave
Isabela to go to their Lantawan plantation to take delivery of newly made copra. Their
departure was delayed due to engine trouble. Upon arrival of the truck at Lantawan, 40
to 50 sacks of copra were loaded to be taken back to Isabela. Antonio Yu had to go to
Tairan on some other business and instructed his brother to go back to Isabela and take
care of the copra cargo. Isabelo Mancenido accompanied Yu Chi Chong in the truck.
At around 1:00 o'clock p.m. as the truck neared the ambush spot, Baddish as instructed,
dropped his towel and requested Yu Chi Chong, who was driving, to stop the truck.
When the truck came to a halt, the ambushers approached it and dragged Yu Chi Chong
and Isabelo Mancenido therefrom. They shot at all of the tires with their assorted
firearms, mostly carbine and garand rifles, and left with their quarry. Shortly the group
released Mancenido upon the latter's pleas for mercy.
They led Yu Chi Chong, with hands tied in front of him, through the forest towards
Bangcao Sapa, passing through a house where they asked for water. Upon reaching
Bangcao Sapa, they found that the tide was low, rendering it impossible for them to
reach their boat. While waiting, Yu Chi Chong in an attempt to escape, struck Angih with
a piece of wood and tried to grab the gun of the latter but failed. Angih in anger, fired at
Yu Chi Chong several times, killing him.
The gunshots which killed Yu Chi Chong were heard by two Muslim villagers. The duo
walked in the direction of the source of the shots and saw the dead body. The
malefactors, in the meanwhile, hid in the mangrove swamp. The two Muslims left and
then came back with a group of villagers who viewed the body. Thereafter, the villagers
left, leaving the body where they saw it with the intention of returning the next day.
When the villagers had gone, the armed group immediately took the body of Yu Chi
Chong and left for Jolo. They dumped the body in the middle of the sea. The body of Yu
Chi Chong was never recovered.
The two Muslims, who heard the gunshots, were Identified as Hajijul Salip Alam and
Asadama Dansalan. They testified that during the night of March 6, 1968, they were on
their way to Bangcao Sapa to go finishing. Attracted by the gunshots, they saw a dead
man who appeared to be fair complexioned young, of regular build, wearing long khaki
pants and a pair of white rubber shoes. They Identified the deceased to be the same
man in Exhibit "A", the picture of Yu Chi Chong.
Asadama Dansalan and Hajijul Salip Alam reported the matter to Isam Dansalan, and
with a group of villagers, they went back to Bangcao Sapa to view the body. They
decided to leave the body where they found it, agreeing that they would call the police
the following day. When they returned to the place the next day, however, they found
that the body was no longer there.
Antonio Yu, the older brother of Yu Chi Chong testified as to the possible motive of
AGAPITO. He manifested that he hired AGAPITO in 1957 as an overseer in his farm in
Lantawan In 1964, the management and administration of the farm was transferred to
AGAPITO when Yu moved to Zamboanga to look after his hardware business there. In
1967, Yu returned to Basilan and took over the management of his farm. AGAPITO's job
60
became that of a mere supervisor. When Antonio Yu took over the farm, he noticed a
significant increase in the farm's production as compared to the yield during AGAPITO's
administration He also noticed that some of his cows were missing. This led him to be
strict with AGAPITO and practically stripped the latter of all his powers.
In his defense, AGAPITO claimed that on March 5,1968 he reported for work in the land
of Antonio Yu as usual; that in the evening he had dinner in the house of Alfonso Flores
and slept there that night. He strongly asserted that he never left that house from 7:30
in the evening after eating his supper until 6:00 in the morning when he woke up the
following day; after breakfast he went to the copra kiln and supervised the laborers
hauling coconuts; around noontime he and Antonio Yu had lunch in the house of Alfonso
Flores; thereafter Antonio Yu left for Tairan. Between 12:30 P.M. and 1:00 P.M. he heard
several shots. He became apprehensive and instructed his assistant to get his carbine.
On the way to the copra kiln he was informed by some laborers that the truck which
they had loaded with copra had been fired upon. He went towards the truck and
searched for Yu Chi Chong. When he shouted he heard an answer from Isabelo
Mancenido from up the hill. The latter related to him that Yu Chi Chong had been taken
by bandits but that he himself was released.
AGAPITO continued working in the plantation until October 25, 1968 when he stopped
because he wanted to actively engage in politics.
AGAPITO also claimed that Oyong Asidin, Jamas Jumaidi as well as the other witnesses
who testified against him were paid by Antonio Yu. In fact, he actually saw some
witnesses being paid. He maintained that he does not know any of the co-accused
except Alih Itum Asmad.
After a lengthy trial, a Decision was rendered by the trial Court on June 25, 1969, the
dispositive portion of which reads:
WHEREFORE, the Court finds the accused Agapito dela Cruz guilty beyond reasonable
doubt of the crime of kidnapping and serious illegal detention, as defined in Article 267
of the Revised Penal Code (amended by Republic Acts Nos. 18 and 1084). Finding that
the crime was attended by the following aggravating circumstances, namely, abuse of
confidence, commission of the offense in an uninhabited place, and abuse of superior
strength, the crime having been committed with the aid of an outlaw band armed with
unlicensed carbine and garand rifles in order to insure impunity, not offset by any
mitigating circumstance, the accused, Agapito dela Cruz, should according to law, be, as
he is, hereby sentenced to suffer the supreme penalty of death, with the accessories of
the law, and costs; to indemnify the heirs of the deceased, Yu Chi Chong, in the sum of
P12.000.00.
SO ORDERED.
xxx xxx xxx
From this Decision, AGAPITO, on appeal contends:
1. That the trial Court erred to discard the false testimony given by the discharged
accused Jamas Jumaidi and Oyong Asidin, by applying the maxim faisus in uno falsus in
omnibus;
2. That the trial Court erred to give credence to the testimony of Sagap Salip;
3. That the trial Court erred to convict the accused as master-mind or principal by
inducement in the absence of the elements of conspiracy to the crime charged.
4. That the trial Court erred to consider the defense of alibi of the accused.
1. In support of the first assigned error, appellant points out that while Jamas Jumaidi,
on direct examination, testified that, as he declared before the NBI, he saw the victim
killed and dumped into the sea, on cross examination, he also admitted that in the
61
statement to the NBI he answered that he did not know what had happened to the
Chinese victim.
This is not entirely accurate. The records show that James Jumaidi had executed two
Affidavits before the NBI. In the first (Exhibit 1), taken on July 8, 1968, he stated that
he did not know what had happened to the Chinese and that it was only when they were
back in Jolo that other companions told him that they had killed a Chinese. In his second
Affidavit, however, executed on July 22, 1968, also before the NBI (Exh. C), he stated
that while waiting for the tide to rise, Angih shot the Chinese and that they had dumped
his body into the sea on their way to Jolo. This was the same declaration that he gave
on the witness stand adding that the statement that he gave on July 8, 1968 was not
entirely true, and that it was the Statement executed on July 22, 1968 which reflected
the truth. When asked why he did not tell the truth right away, he replied that he did
not want to be pinpointed as among those who had gone with the Chinese; that he was
thinking of himself as he did not want to be involved in the kidnapping and killing; and
that neither did he want to incriminate his companions whom he feared.
While the two Statements are, indeed, at variance, the contradiction refers mainly to the
involvement of Jamas Jumaidi and Oyong Asidin in the criminal act. But more
importantly. the two Affidavits were invariably consistent on the crucial point of inquiry,
namely, the role of AGAPITO in the kidnapping plot, the details thereat, the ransom to
be demanded, and The distribution of the spoils.
Additionally, appellant claims that Oyong Asidin also admitted not having told the truth
to the NBI when placed under cross-examination, 8 for which reason, his testimony is
neither deserving of credence. But as far as this witness is concerned, he was similarly
situated as Jamas Jumaidi. He had executed two Affidavits of the same tenor as
Jumaidi's (Exhs. 3 and D). In the first he negated knowing what had happened to their
Chinese victim, but in the second, narrated it in full detail. In both Affidavits, however,
he too, consistently pointed to AGAPITO as the mastermind in whose house the criminal
scheme was hatched and plotted.
We find no error on the part of the trial Court. therefore. when it gave credence to the
testimonies of the two state witnesses. The rule "falsus in uno falsus in omnibus" is not
mandatory. lt does not apply where the declarants are motivated by a desire to
exculpate themselves and not really to pervert the truth as we find to be the case with
respect to the two state witnesses.
... The rule falsus in uno falsus in omnibus is not a mandatory rule of evidence, but
rather a permissible one which allows the jury or the court to draw the inference or not
to draw it as circumstances may best warrant. (70 C.J., 783). The rule has its
limitations, when the mistaken statement is consistent with good faith and is not
conclusively indicative of a deliberate perversion, the believable portion of the testimony
should be admitted. (III Wigmore secs. 1009-1015, pp. 674-683). There are, therefore,
these requirements for the application of the rule, i.e., that the false testimony is as to a
material point, and there should be a conscious and deliberate intention to falsify.
... The said rule should not apply where there is sufficient corroboration on many
grounds of the testimony; where the mistakes are not on the very material points;
where the errors do not arise from an apparent desire to pervert the truth but from
innocent mistakes and the desire of the witness to exculpate himself though not
completely.
Appellant, in the Reply Brief filed on November 13, 1972, argues that the statement of
Jamas Jumaidi, to the effect that he does not know what happened to Yu Chi Chong, is
material to the case as it refers to the body of the crime itself While it is true that this is
62
a material point, the death of Yu Chi Chong has been proven by evidence other than the
testimony of Jamas Jumaidi and Oyong Asidin. Empty shells and bloodstains were found
in the place where Yu Chi Chong was shot. Asadama Dansalan and Hajijul Salip Alam
also positively Identified the victim as the person in Exhibit "A", the picture of Yu Chi
Chong.
2. Further, it is the accused's contention that the testimony of Sagap Salip should not be
given credence. The trial Court, however, in its Decision, found that the testimony of
Sagap Salip was unassailed, and was in itself sufficient to support the accusation. A
close scrutiny of the records of the case will show that the testimony of the two
discharged witness corroborate on substantial points that of Sagap Salip. We, therefore,
do not find any reason to reverse the findings of the trial Court. It has been uniform
jurisprudence "that with respect to the credibility of witnesses, the trial Court's findings
and conclusions command great respect and weight," subject to certain exceptions
which are non-existent here.
3. AGAPITO further assails the conclusion of the trial Court finding him guilty as a
principal by inducement reasoning that "since he did not take part in the commission of
the crime, conspiracy does not exist and consequently he incurs no criminal liability.
This contention is untenable. The requisites necessary in order that a person may be
convicted as a principal by inducement are:
1. That the inducement be made directly with the intention of procuring the commission
of the crime; and
2. That such inducement be the determining cause of the commission of the crime by
the material executor.
The foregoing requisites are indubitably present in this case. The two discharged
witnesses testified that Asmad and Amil contacted them to go to Basilan to do a job for
AGAPITO. 14 When the group was brought face to face with him, he lost no time in
laying down the strategy for the killing of Antonio Yu and the kidnapping of Yu Chi
Chong for ransom. It was he who knew when the truck of the intended victims would go
to Lantawan to load the copra to be delivered to Isabela. He knew the route that the
truck would take and the approximate time that it was to pass by. He even selected the
ambush place. Clearly, he had the positive resolution to procure the commission of the
crime. He, too, presented the strongest kind of temptation, a pecuniary gain in the form
of ransom, which was the determining factor of the commission of the crime by his co-
accused.
Without him the crime would not have been conceived, much less committed. Clearly,
he was a principal by induction, with collective criminal responsibility with the material
executors, his co-accused.
One is induced to commit a crime either by a command (precepto) or for a consideration
(pacto) or by any other similar act which constitutes the real and moving cause of the
crime and which was done for the purpose of inducing such criminal act and was
sufficient for that purpose. The person who gives promises, or offers the consideration
and the one who actually commits the crime by reason of such promise, remuneration or
reward are both principals.
The inducer need not take part in the commission of the offense. One who induces
another to commit a crime is guilty as principal even though he might have taken no
part in its material execution.
4. Lastly, the accused seeks shelter behind his defense of alibi. He alleges that he was in
the house of Alfonso Flores in the night of March 5, 1968, and that he never left the
house from 7:30 in the evening up to 6:00 in the morning when he woke up the
63
following day. His defense was corroborated by Federico Hilay who testified that he was
with the accused that night; that they had supper together; and that he saw AGAPITO
again the next day in the kitchen eating breakfast. Alfonso Flores corroborated Hilay's
testimony.
The weakness of the accused's defense, however, lies in the tact that the house of
Alfonso Flores is only about a kilometer away from his own house, the place where the
meeting between him and his co- accused took place and where the criminal plans were
laid down. "The well-settled doctrine is that for alibi to be acceptable it must be shown
that the place where the accused was alleged to be when the offense was committed
must be located at such a distance that it was well-nigh impossible for him to be at the
scene of the crime." Since the distance between Agapito's house and that of Alfonso
Flores was only one kilometer, it was not impossible for the accused to have left Flores'
house to return to his own to confer with the group, assuming that he was, as he
alleged, in Flores' house.
The defense of alibi of the accused is further negated by the testimonies of Jamas
Jumaidi, Oyong Asidin and Sagap Salip, who categorically implicated the accused and
vividly described the details of the meeting. "The rule is settled that the defense of alibi
is worthless in the face of positive Identification by prosecution witnesses pointing to the
accused as particeps criminis. Moreover, the defense of alibi is an issue of fact the
resolution of which depends almost entirely on the credibility of witnesses who seek to
establish it. In this respect the relative weight which the trial Judge accords to the
testimony of the witnesses must, unless patently inconsistent with the evidence on
record, be accepted."
5. The final point for consideration is the nature of the crime or crimes that AGAPITO
should be held guilty of.
While the Information filed against all the accused charged them with the crime of
Kidnapping with Robbery in Band and Murder, the trial Court convicted AGAPITO only of
the crime of Kidnapping and Serious Illegal Detention as defined in Article 267 of the
Revised Penal Code, stating that:
We find that the original plan of the accused was to kidnap, not to rob or commit
murder. There is in fact no evidence as to the charge of robbery. The evidence does not
show that there was any intention to commit murder and the killing of the victim, Yu Chi
Chong, happened unexpectedly, that is, only in consequence of the outlaw band's effort
to prevent Yu Chi Chong's escape. Murder here may be said to have been absorbed in
the crime of kidnapping, for 'in kidnapping, it is immaterial whether or not the victim
was killed' (People vs. Suarez, 82 Phil. 484; People vs. Tan, 88 Phil. 152).
In this, we find reversible error. In the Suarez case cited by the trial Court, the Supreme
Court considered the killing of the victim of kidnapping as "immaterial" because the
appellants were prosecuted for the crime of Kidnapping only. This Court held in said
case:
Counsel for the appellants contends that these should be convicted only as accomplices.
He claims that, there being no evidence to show that they had taken part in a conspiracy
to kill Esteban Mungcal, - because, according to the evidence for the defense, after De
Hora, his companion and Fermin Suarez had hogtied Esteban Mungcal, the appellants
were left in a house and had nothing to do with the killing of Esteban, - they cannot be
held guilty as co-principals of the crime of kidnapping. This contention is, however,
based on the erroneous assumption that the fact of the killing of Esteban Mungcal
constituted the principal element of the offense for which the appellants were prosecuted
before, and found guilty by, the trial Court. But the appellants were not accused of the
64
murder or the killing of Esteban; they were accused of kidnapping, as defined and
punished under article 267, paragraph 1, of the Revised Penal Code. The essential
element or act which makes the offense of kidnapping is the deprivation of an offended
party's liberty under any of the four instances enumerated in said article, the illegal
detention of the victim for more than five days being one of such instances. The fact
that an accused person has directly participated in the kidnapping or illegal detention of
another is sufficient to make him guilty as co-principal in the crime of kidnapping it is
immaterial whether or not the victim was subsequently killed by any or all of them. In
the present case there is no doubt that the appellants had taken active part in the
kidnapping of Esteban Mungcal and that the acts committed by them have made them
guilty as co-principals. The fact that they may have not taken part in the subsequent
killing of Esteban Mungcal has only the effect of making them less guilty than those who
actually took part in the killing - but they are guilty just the same. As above stated, the
appellants should therefore be held liable as co-principals in the crime of kidnapping
penalized under article 267, paragraph 1, as amended, of the Revised Penal Code.
(Emphasis supplied)
The situation, however, is different in the case at bar where AGAPITO was charged in
the Information with the crime of Kidnapping with Robbery in Band and Murder. The
evidence is clear that the victim Yu Chi Chong was kidnapped, as planned, primarily for
the purpose of ransom in the amount of P50,000.00, and was murdered because he
attempted to escape his captors.
In the following cases, the Court convicted the accused of the complex crime of
Kidnapping with Murder: People vs. Ging Sam, et al., 94 Phil. 139 (1953); Parulan vs.
Rodas and Reyes, 78 Phil. 855 (1947) and People vs. Parulan, 88 Phil. 615 (1951);
People vs. Umali, et al., 100 Phil. 1095 (1957) Unreported case; People vs. Tulale, 97
Phil. 953 (1955), Unreported case; People vs. Escarda and Saliente, 88 Phil. 789 (1950),
Unpublished Decision; People vs. Francisco and Dasalla, 96 Phil. 976 (1955), Unreported
case; People vs. Joaquin, 89 Phil. 807 (1951), Unpublished Decision.
Having found that AGAPITO is a principal by inducement and conspiracy being evident,
he should, therefore, be held guilty of the same crime committed by the material
executors in furtherance of the offense which he induced them to commit.
The general rule is well settled that, where several parties conspire or combine together
to commit any unlawful act, each is criminally responsible for the acts of his associates
or confederates committed in furtherance of any prosecution of the common design for
which they combine. In contemplation of law the act of one is the act of all ... It is
immaterial, as affecting the question of co-equal responsibility, that one or more were
not actually present at the continuation of the preconceived design.
And although the nefarious scheme was to kill Antonio Yu and to kidnap for ransom his
brother Yu Chi Chong, considering the presence of conspiracy among the accused, the
actuality that it was the latter instead who was murdered makes AGAPITO liable as well
for all the consequences resulting from the carrying of the crime into effect.
If there was an understanding to commit an offense, all who participated in the
preconcerted crime are liable for the means which each of them employed to carry such
crime into effect and for the consequence thereof.
The crime committed is the complex crime of Kidnapping for ransom with Murder.
Pursuant to Article 48 of the Revised Penal Code, the penalty for the more serious crime,
or Kidnapping for ransom which under Article 267 of the same Code, as amended, is
death, should be imposed. The penalty, being single and indivisible, consideration of the
aggravating circumstances discussed by the trial Court need no longer be undertaken as
65
that penalty will have to be applied regardless of any mitigating or aggravating
circumstances that may have attended the commission of the deed (Article 63, Revised
Penal Code). However, for lack of the required number of votes for the imposition of the
capital punishment, the penalty to be imposed is the next lower in degree or reclusion
perpetua.
WHEREFORE, the accused-appellant, Agapito de la Cruz, is hereby sentenced to suffer
the penalty of reclusion perpetua; to indemnify the heirs of the deceased Yu Chi Chong
in the sum of P12,000.00; and to pay the costs.
SO ORDERED.
Separate Opinions
AQUINO, J, dissenting:
I dissent. In my opinion. the crime committed by Agapito de la Cruz, the disgruntled and
dismissed overseer of Antonio Yu, who induced and mastermind the kidnapping for
ransom of his brother, Yu Chi Chong, is either attempted serious illegal detention or
kidnapping for ransom or consummated slight illegal detention, both of which are
punished by reclusion temporal.
It is true that the plan was to commit kidnapping for ransom and that the kidnapping
was accomplished but since the evidence does not show that ransom was actually
demanded, an important element of kidnapping for ransom (qualified serious illegal
detention') is missing.
To consummate the kidnapping for ransom there should be an overt act of demanding
ransom from the victim or any other person (People vs. Ong, L-34497, January 30,
1975, 62 SCRA 174).
I believe that for a person to be guilty of kidnapping for ransom, a capital case par
excellence it is not sufficient that the kidnapping for ransom was planned and that the
kidnapping was implemented. It is necessary that there should be a demand for ransom
There is no complex crime of kidnapping with murder in this case because the
kidnapping was not deliberately resorted to as a means for the perpetration of the
murder. The killing was made on the spur of the moment when the victim assaulted his
guard and tried to escape.
This case is different or distinguishable from the typical cases of consummated
kidnapping for ransom with murder such as People vs. Sta. Maria, L-19929, October 30,
1965, 15 SCRA 222: People vs. Paras, L-23111, March 29, 1974, 56 SCRA 248; People
vs. Ging Sam, 94 Phil. 139 and Parulan vs. Rodas and Reyes, 78 Phil. 855 and People
vs. Parulan, 88 Phil. 615.
The fact that the kidnapping was accomplished and that the circumstances mentioned in
article 267 of the Revised Penal Code were not present means that the crime committed
may also be categorized as consummated slight illegal detention under article 268 of the
Revised Penal Code.
The killing of the kidnapped victim by Angih alias Ayub Allan (at large) was homicide
only. For the killing, which was not contemplated in the conspiracy or which was not
planned by the conspirators, only Angih the actual killer, is responsible.
De la Cruz, as a principal by inducement, cannot be held responsible for it. He was not
present at the scene of the killing. He did not induce it and he could not have prevented
it.
The rule in article 4 of the Revised Penal Code that a person is criminally liable although
the wrongful act done be different from that which he had intended or that an offender
is liable for all the natural consequences of his felonious acts cannot be invoked to hold
66
De la Cruz liable for the homicide. Being a principal by inducement, he is answerable
only for the crime which he induced which was kidnapping or illegal detention,
Considering the aggravating circumstances attending the attempted kidnapping for
ransom or the consummated crime of slight illegal detention, he should be sentenced to
twelve years of prision mayor as minimum to eighteen years of reclusion temporal as
maximum.
X------------------------------------------------------------------------------------------------ X
G.R. No. 188314 January 10, 2011
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs. KHADDAFY JANJALANI,
GAMAL B. BAHARAN a.k.a. Tapay, ANGELO TRINIDAD a.k.a. Abu Khalil, GAPPAL
BANNAH ASALI a.k.a. Maidan or Negro, JAINAL SALI a.k.a. Abu Solaiman,
ROHMAT ABDURROHIM a.k.a. Jackie or Zaky, and other JOHN and JANE DOES,
Accused, GAMAL B. BAHARAN a.k.a. Tapay, ANGELO TRINIDAD a.k.a. Abu
Khalil, and ROHMAT ABDURROHIM a.k.a. Abu Jackie or Zaky, Accused-
Appellants.
DECISION
SERENO, J.:
Before the Court is an appeal from the Decision of the Court of Appeals (CA) dated 30
June 2008, which affirmed the Decision of the Regional Trial Court of Makati City in
Criminal Case Nos. 05-476 and 05-4777 dated 18 October 2005. The latter Decision
convicted the three accused-appellants – namely, Gamal B. Baharan a.k.a. Tapay,
Angelo Trinidad a.k.a. Abu Khalil, and Rohmat Abdurrohim a.k.a. Abu Jackie or Zaky – of
the complex crime of multiple murder and multiple frustrated murder, and sentenced
them to suffer the penalty of death by lethal injection. The CA modified the sentence to
reclusion perpetua as required by Republic Act No. 9346 (Act Abolishing the Imposition
of Death Penalty).
Statement of Facts
The pertinent facts, as determined by the trial court, are as follows:
On 14 February 2005, an RRCG bus was plying its usual southbound route, from its
Navotas bus terminal towards its Alabang bus terminal via Epifanio de los Santos
Avenue (EDSA). Around 6:30 to 7:30 in the evening, while they were about to move out
of the Guadalupe-EDSA southbound bus stop, the bus conductor noticed two men
running after the bus. The two insisted on getting on the bus, so the conductor obliged
and let them in.
According to Elmer Andales, the bus conductor, he immediately became wary of the two
men, because, even if they got on the bus together, the two sat away from each other –
one sat two seats behind the driver, while the other sat at the back of the bus. At the
time, there were only 15 passengers inside the bus. He also noticed that the eyes of one
of the men were reddish. When he approached the person near the driver and asked him
whether he was paying for two passengers, the latter looked dumb struck by the
question. He then stuttered and said he was paying for two and gave PhP20. Andales
grew more concerned when the other man seated at the back also paid for both
passengers. At this point, Andales said he became more certain that the two were up to
no good, and that there might be a holdup.
Afterwards, Andales said he became more suspicious because both men kept on asking
him if the bus was going to stop at Ayala Avenue. The witness also noticed that the man
at the back appeared to be slouching, with his legs stretched out in front of him and his
arms hanging out and hidden from view as if he was tinkering with something. When
67
Andales would get near the man, the latter would glare at him. Andales admitted,
however, that he did not report the suspicious characters to the police.
As soon as the bus reached the stoplight at the corner of Ayala Avenue and EDSA, the
two men insisted on getting off the bus. According to Andales, the bus driver initially did
not want to let them off the bus, because a Makati ordinance prohibited unloading
anywhere except at designated bus stops. Eventually, the bus driver gave in and allowed
the two passengers to alight. The two immediately got off the bus and ran towards Ayala
Avenue. Moments after, Andales felt an explosion. He then saw fire quickly engulfing the
bus. He ran out of the bus towards a nearby mall. After a while, he went back to where
the bus was. He saw their bus passengers either lying on the ground or looking
traumatized. A few hours after, he made a statement before the Makati Police Station
narrating the whole incident.
The prosecution presented documents furnished by the Department of Justice,
confirming that shortly before the explosion, the spokesperson of the Abu Sayyaf Group
– Abu Solaiman – announced over radio station DZBB that the group had a Valentine’s
Day "gift" for former President Gloria Macapagal-Arroyo. After the bombing, he again
went on radio and warned of more bomb attacks.
As stipulated during pretrial, accused Trinidad gave ABS-CBN News Network an
exclusive interview sometime after the incident, confessing his participation in the
Valentine’s Day bombing incident. In another exclusive interview on the network,
accused Baharan likewise admitted his role in the bombing incident. Finally, accused
Asali gave a television interview, confessing that he had supplied the explosive devices
for the 14 February 2005 bombing. The bus conductor identified the accused Baharan
and Trinidad, and confirmed that they were the two men who had entered the RRCG bus
on the evening of 14 February.
Members of the Abu Sayyaf Group – namely Khaddafy Janjalani, Gamal B. Baharan,
Angelo Trinidad, Gappal Bannah Asali, Jainal Asali, Rohmat Abdurrohim a.k.a. Abu Jackie
or Zaky, and other "John" and "Jane Does" – were then charged with multiple murder
and multiple frustrated murder. Only Baharan, Trinidad, Asali, and Rohmat were
arrested, while the other accused remain at-large.
On their arraignment for the multiple murder charge (Crim. Case No. 05-476), Baharan,
Trinidad, and Asali all entered a plea of guilty. On the other hand, upon arraignment for
the multiple frustrated murder charge (Crim. Case No. 05-477), accused Asali pled
guilty. Accused Trinidad and Baharan pled not guilty. Rohmat pled not guilty to both
charges. During the pretrial hearing, the parties stipulated the following:
1.) The jurisdiction of this court over the offenses charged.
2.) That all three accused namely alias Baharan, Trinidad, and Asali admitted knowing
one another before February 14, 2005.
3.) All the same three accused likewise admitted that a bomb exploded in the RRCG bus
while the bus was plying the EDSA route fronting the MRT terminal which is in front of
the Makati Commercial Center.
4.) Accused Asali admitted knowing the other accused alias Rohmat whom he claims
taught him how to make explosive devices.
5.) The accused Trinidad also admitted knowing Rohmat before the February 14
bombing incident.
6.) The accused Baharan, Trinidad, and Asali all admitted to causing the bomb explosion
inside the RRCG bus which left four people dead and more or less forty persons injured.
68
7.) Both Baharan and Trinidad agreed to stipulate that within the period March 20-24
each gave separate interviews to the ABS-CBN news network admitting their
participation in the commission of the said crimes, subject of these cases.
8.) Accused Trinidad and Baharan also admitted to pleading guilty to these crimes,
because they were guilt-stricken after seeing a man carrying a child in the first bus that
they had entered.
9.) Accused Asali likewise admitted that in the middle of March 2005 he gave a
television news interview in which he admitted that he supplied the explosive devices
which resulted in this explosion inside the RRCG bus and which resulted in the filing of
these charges.
10.) Finally, accused Baharan, Trinidad, and Asali admitted that they are members of
the Abu Sayyaf.
In the light of the pretrial stipulations, the trial court asked whether accused Baharan
and Trinidad were amenable to changing their "not guilty" pleas to the charge of
multiple frustrated murder, considering that they pled "guilty" to the heavier charge of
multiple murder, creating an apparent inconsistency in their pleas. Defense counsel
conferred with accused Baharan and Trinidad and explained to them the consequences
of the pleas. The two accused acknowledged the inconsistencies and manifested their
readiness for re-arraignment. After the Information was read to them, Baharan and
Trinidad pled guilty to the charge of multiple frustrated murder.
After being discharged as state witness, accused Asali testified that while under training
with the Abu Sayyaf in 2004, Rohmat, a.k.a Abu Jackie or Zaky, and two other persons
taught him how to make bombs and explosives. The trainees were told that they were to
wage battles against the government in the city, and that their first mission was to plant
bombs in malls, the Light Railway Transit (LRT), and other parts of Metro Manila.
As found by the trial court, Asali, after his training, was required by the Abu Sayyaf
leadership, specifically Abu Solaiman and Rohmat, to secure eight kilos of TNT, a
soldering gun, aluminum powder, a tester, and Christmas lights, all of which he knew
would be used to make a bomb. He then recalled that sometime in November to
December 2004, Trinidad asked him for a total of 4 kilos of TNT – that is, 2 kilos on two
separate occasions. Rohmat allegedly called Asali to confirm that Trinidad would get TNT
from Asali and use it for their first mission. The TNT was allegedly placed in two buses
sometime in December 2004, but neither one of them exploded.
Asali then testified that the night before the Valentine’s Day bombing, Trinidad and
Baharan got another two kilos of TNT from him. Late in the evening of 14 February, he
received a call from Abu Solaiman. The latter told Asali not to leave home or go to
crowded areas, since the TNT taken by Baharan and Trinidad had already been exploded
in Makati. Thirty minutes later, Trinidad called Asali, repeating the warning of Abu
Solaiman. The next day, Asali allegedly received a call from accused Rohmat,
congratulating the former on the success of the mission. According to Asali, Abu Zaky
specifically said, "Sa wakas nag success din yung tinuro ko sayo."
Assignment of Errors
Accused-appellants raise the following assignment of errors:
I. The trial court gravely erred in accepting accused-appellants’ plea of guilt despite
insufficiency of searching inquiry into the voluntariness and full comprehension of the
consequences of the said plea.
II. The trial court gravely erred in finding that the guilt of accused-appellants for the
crimes charged had been proven beyond reasonable doubt.
First Assignment of Error
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Accused-appellants Baharan and Trinidad argue that the trial court did not conduct a
searching inquiry after they had changed their plea from "not guilty" to "guilty." The
transcript of stenographic notes during the 18 April 2005 re-arraignment before the
Makati Regional Trial Court is reproduced below:
Court : Anyway, I think what we should have to do, considering the stipulations that
were agreed upon during the last hearing, is to address this matter of pleas of not guilty
entered for the frustrated murder charges by the two accused, Mr. Trinidad and Mr.
Baharan, because if you will recall they entered pleas of guilty to the multiple murder
charges, but then earlier pleas of not guilty for the frustrated multiple murder charges
remain… [I]s that not inconsistent considering the stipulations that were entered into
during the initial pretrial of this case? [If] you will recall, they admitted to have caused
the bomb explosion that led to the death of at least four people and injury of about forty
other persons and so under the circumstances, Atty Peña, have you discussed this
matter with your clients?
Atty. Peña : Then we should be given enough time to talk with them. I haven’t conferred
with them about this with regard to the multiple murder case.
Court : Okay. So let us proceed now. Atty. Peña, can you assist the two accused
because if they are interested in withdrawing their [pleas], I want to hear it from your
lips.
Atty. Peña : Yes, your Honor.
(At this juncture, Atty. Peña confers with the two accused, namely Trinidad and
Baharan)
I have talked to them, your Honor, and I have explained to them the consequence of
their pleas, your Honor, and that the plea of guilt to the murder case and plea of not
guilty to the frustrated multiple murder actually are inconsistent with their pleas.
Court : With matters that they stipulated upon?
Atty. Peña : Yes, your Honor. So, they are now, since they already plead guilt to the
murder case, then they are now changing their pleas, your Honor, from not guilty to the
one of guilt. They are now ready, your Honor, for re-arraignment.
INTERPRETER: (Read again that portion [of the information] and translated it in Filipino
in a clearer way and asked both accused what their pleas are).
Your Honor, both accused are entering separate pleas of guilt to the crime charged.
COURT : All right. So after the information was re-read to the accused, they have
withdrawn their pleas of not guilty and changed it to the pleas of guilty to the charge of
frustrated murder. Thank you. Are there any matters you need to address at pretrial
now? If there are none, then I will terminate pretrial and accommodate…
As early as in People v. Apduhan, the Supreme Court has ruled that "all trial judges …
must refrain from accepting with alacrity an accused's plea of guilty, for while justice
demands a speedy administration, judges are duty bound to be extra solicitous in seeing
to it that when an accused pleads guilty, he understands fully the meaning of his plea
and the import of an inevitable conviction." Thus, trial court judges are required to
observe the following procedure under Section 3, Rule 116 of the Rules of Court:
SEC. 3. Plea of guilty to capital offense; reception of evidence. — When the accused
pleads guilty to a capital offense, the court shall conduct a searching inquiry into the
voluntariness and full comprehension of the consequences of his plea and shall require
the prosecution to prove his guilt and the precise degree of culpability. The accused may
also present evidence in his behalf. (Emphasis supplied)
The requirement to conduct a searching inquiry applies more so in cases of re-
arraignment. In People v. Galvez, the Court noted that since accused-appellant's original
70
plea was "not guilty," the trial court should have exerted careful effort in inquiring into
why he changed his plea to "guilty." According to the Court:
The stringent procedure governing the reception of a plea of guilt, especially in a case
involving the death penalty, is imposed upon the trial judge in order to leave no room
for doubt on the possibility that the accused might have misunderstood the nature of the
charge and the consequences of the plea.
Likewise, the requirement to conduct a searching inquiry should not be deemed satisfied
in cases in which it was the defense counsel who explained the consequences of a
"guilty" plea to the accused, as it appears in this case. In People v. Alborida, this Court
found that there was still an improvident plea of guilty, even if the accused had already
signified in open court that his counsel had explained the consequences of the guilty
plea; that he understood the explanation of his counsel; that the accused understood
that the penalty of death would still be meted out to him; and that he had not been
intimidated, bribed, or threatened.
We have reiterated in a long line of cases that the conduct of a searching inquiry
remains the duty of judges, as they are mandated by the rules to satisfy themselves
that the accused had not been under coercion or duress; mistaken impressions; or a
misunderstanding of the significance, effects, and consequences of their guilty plea. This
requirement is stringent and mandatory.
Nevertheless, we are not unmindful of the context under which the re-arraignment was
conducted or of the factual milieu surrounding the finding of guilt against the accused.
The Court observes that accused Baharan and Trinidad previously pled guilty to another
charge – multiple murder – based on the same act relied upon in the multiple frustrated
murder charge. The Court further notes that prior to the change of plea to one of guilt,
accused Baharan and Trinidad made two other confessions of guilt – one through an
extrajudicial confession (exclusive television interviews, as stipulated by both accused
during pretrial), and the other via judicial admission (pretrial stipulation). Considering
the foregoing circumstances, we deem it unnecessary to rule on the sufficiency of the
"searching inquiry" in this instance. Remanding the case for re-arraignment is not
warranted, as the accused’s plea of guilt was not the sole basis of the condemnatory
judgment under consideration.
Second Assignment of Error
In People v. Oden, the Court declared that even if the requirement of conducting a
searching inquiry was not complied with, "[t]he manner by which the plea of guilt is
made … loses much of great significance where the conviction can be based on
independent evidence proving the commission by the person accused of the offense
charged." Thus, in People v. Nadera, the Court stated:
Convictions based on an improvident plea of guilt are set aside only if such plea is the
sole basis of the judgment. If the trial court relied on sufficient and credible evidence to
convict the accused, the conviction must be sustained, because then it is predicated not
merely on the guilty plea of the accused but on evidence proving his commission of the
offense charged. (Emphasis supplied.)
In their second assignment of error, accused-appellants assert that guilt was not proven
beyond reasonable doubt. They pointed out that the testimony of the conductor was
merely circumstantial, while that of Asali as to the conspiracy was insufficient.
Insofar as accused-appellants Baharan and Trinidad are concerned, the evidence for the
prosecution, in addition to that which can be drawn from the stipulation of facts,
primarily consisted of the testimonies of the bus conductor, Elmer Andales, and of the
accused-turned-state-witness, Asali. Andales positively identified accused Baharan and
71
Trinidad as the two men who had acted suspiciously while inside the bus; who had
insisted on getting off the bus in violation of a Makati ordinance; and who had
scampered away from the bus moments before the bomb exploded. On the other hand,
Asali testified that he had given accused Baharan and Trinidad the TNT used in the
bombing incident in Makati City. The guilt of the accused Baharan and Trinidad was
sufficiently established by these corroborating testimonies, coupled with their respective
judicial admissions (pretrial stipulations) and extrajudicial confessions (exclusive
television interviews, as they both stipulated during pretrial) that they were indeed the
perpetrators of the Valentine’s Day bombing. Accordingly, the Court upholds the findings
of guilt made by the trial court as affirmed by the Court of Appeals.
Anent accused Rohmat, the evidence for the prosecution consisted of the testimony of
accused-turned-state-witness Asali. Below is a reproduction of the transcript of
stenographic notes on the state prosecutor’s direct examination of state-witness Asali
during the 26 May 2005 trial:
Q : You stated that Zaky trained you and Trinidad. Under what circumstances did he
train you, Mr. Witness, to assemble those explosives, you and Trinidad?
A : Abu Zaky, Abu Solaiman, Khadaffy Janjalani, the three of them, that Angelo Trinidad
and myself be the one to be trained to make an explosive, sir.
Q : Mr. witness, how long that training, or how long did it take that training?
A : If I am not mistaken, we were thought to make bomb about one month and two
weeks.
Q : Now, speaking of that mission, Mr. witness, while you were still in training at Mr.
Cararao, is there any mission that you undertook, if any, with respect to that mission?
A : Our first mission was to plant a bomb in the malls, LRT, and other parts of Metro
Manila, sir.
The witness then testified that he kept eight kilos of TNT for accused Baharan and
Trinidad.
Q : Now, going back to the bomb. Mr. witness, did you know what happened to the 2
kilos of bomb that Trinidad and Tapay took from you sometime in November 2004?
A : That was the explosive that he planted in the G-liner, which did not explode.
Q : How did you know, Mr. witness?
A : He was the one who told me, Mr. Angelo Trinidad, sir.
Q : What happened next, Mr. witness, when the bomb did not explode, as told to you by
Trinidad?
A : On December 29, Angelo Trinidad got 2 more kilos of TNT bombs.
Q : Did Trinidad tell you why he needed another amount of explosive on that date,
December 29, 2004? Will you kindly tell us the reason why?
A : He told me that Abu Solaiman instructed me to get the TNT so that he could
detonate a bomb
Q : Were there any other person, besides Abu Solaiman, who called you up, with respect
to the taking of the explosives from you?
A : There is, sir… Abu Zaky, sir, called up also.
Q : What did Abu Zaky tell you when he called you up?
A : He told me that "this is your first mission."
Q : Please enlighten the Honorable Court. What is that mission you are referring to?
A : That is the first mission where we can show our anger towards the Christians.
Q : The second time that he got a bomb from you, Mr. witness, do you know if the bomb
explode?
72
A : I did not know what happened to the next 2 kilos taken by Angelo Trinidad from me
until after I was caught, because I was told by the policeman that interviewed me after I
was arrested that the 2 kilos were planted in a bus, which also did not explode.
Q : So besides these two incidents, were there any other incidents that Angelo Trinidad
and Tapay get an explosive for you, Mr. witness?
A : If I am not mistaken, sir, on February 13, 2005 at 6:30 p.m.
Q : Who got from you the explosive Mr. witness?
A : It’s Angelo Trinidad and Tapay, sir.
Q : How many explosives did they get from you, Mr. witness, at that time?
A : They got 2 kilos TNT bomb, sir.
Q : Did they tell you, Mr. witness, where are they going to use that explosive?
A : No, sir.
Q : Do you know, Mr. witness, what happened to the third batch of explosives, which
were taken from you by Trinidad and Tapay?
A : That is the bomb that exploded in Makati, sir.
Q : Why did you know, Mr. witness?
A : Because I was called in the evening of February 14 by Abu Solaiman. He told me not
to leave the house because the explosive that were taken by Tapay and Angelo Trinidad
exploded.
Q : Was there any other call during that time, Mr. Witness?
A : I was told by Angelo Trinidad not to leave the house because the explosive that he
took exploded already, sir.
Q : How sure were you, Mr. witness, at that time, that indeed, the bomb exploded at
Makati, beside the call of Abu Solaiman and Trinidad?
A : It was told by Abu Solaiman that the bombing in Makati should coincide with the
bombing in General Santos.
A : He told it to me, sir… I cannot remember the date anymore, but I know it was
sometime in February 2005.
Q : Any other call, Mr. witness, from Abu Solaiman and Trinidad after the bombing
exploded in Makati, any other call?
A : There is, sir… The call came from Abu Zaky.
Q : What did Abu Zaky tell you, Mr. witness?
A : He just greeted us congratulations, because we have a successful mission.
A : He told me that "sa wakas, nag success din yung tinuro ko sayo."
Q : By the way, Mr. witness, I would just like to clarify this. You stated that Abu Zaky
called you up the following day, that was February 15, and congratulating you for the
success of the mission. My question to you, Mr. witness, if you know what is the relation
of that mission, wherein you were congratulated by Abu Zaky, to the mission, which
have been indoctrinated to you, while you were in Mt. Cararao, Mr. witness?
A : They are connected, sir.
Q : Connected in what sense, Mr. witness?
A : Because when we were undergoing training, we were told that the Abu Sayyaf
should not wage war to the forest, but also wage our battles in the city.
Q : Wage the battle against who, Mr. witness?
A : The government, sir.
What can be culled from the testimony of Asali is that the Abu Sayyaf Group was
determined to sow terror in Metro Manila, so that they could show their "anger towards
the Christians." It can also be seen that Rohmat, together with Janjalani and Abu
Solaiman, had carefully planned the Valentine’s Day bombing incident, months before it
73
happened. Rohmat had trained Asali and Trinidad to make bombs and explosives. While
in training, Asali and others were told that their mission was to plant bombs in malls, the
LRT, and other parts of Metro Manila. According to Asali, Rohmat called him on 29
December 2004 to confirm that Trinidad would get two kilos of TNT from Asali, as they
were "about to commence" their "first mission." They made two separate attempts to
bomb a bus in Metro Manila, but to no avail. The day before the Valentine’s Day
bombing, Trinidad got another two kilos of TNT from Asali. On Valentine’s Day, the Abu
Sayyaf Group announced that they had a gift for the former President, Gloria Macapagal-
Arroyo. On their third try, their plan finally succeeded. Right after the bomb exploded,
the Abu Sayyaf Group declared that there would be more bombings in the future. Asali
then received a call from Rohmat, praising the former: "Sa wakas nag success din yung
tinuro ko sayo."
In the light of the foregoing evidence, the Court upholds the finding of guilt against
Rohmat. Article 17 of the Revised Penal Code reads:
Art. 17. Principals. — The following are considered principals:
1. Those who take a direct part in the execution of the act
2. Those who directly force or induce others to commit it
3. Those who cooperate in the commission of the offense by another act without which it
would not have been accomplished
Accused Rohmat is criminally responsible under the second paragraph, or the provision
on "principal by inducement." The instructions and training he had given Asali on how to
make bombs – coupled with their careful planning and persistent attempts to bomb
different areas in Metro Manila and Rohmat’s confirmation that Trinidad would be getting
TNT from Asali as part of their mission – prove the finding that Rohmat’s co-inducement
was the determining cause of the commission of the crime. Such "command or advice
[was] of such nature that, without it, the crime would not have materialized."
Further, the inducement was "so influential in producing the criminal act that without it,
the act would not have been performed." In People v. Sanchez, et al., the Court ruled
that, notwithstanding the fact that Mayor Sanchez was not at the crime scene, evidence
proved that he was the mastermind of the criminal act or the principal by inducement.
Thus, because Mayor Sanchez was a co-principal and co-conspirator, and because the
act of one conspirator is the act of all, the mayor was rendered liable for all the resulting
crimes. The same finding must be applied to the case at bar.
The Court also affirms the finding of the existence of conspiracy involving accused
Baharan, Trinidad, and Rohmat. Conspiracy was clearly established from the "collective
acts of the accused-appellants before, during and after the commission of the crime." As
correctly declared by the trial court in its Omnibus Decision:
Asali’s clear and categorical testimony, which remains unrebutted on its major points,
coupled with the judicial admissions freely and voluntarily given by the two other
accused, are sufficient to prove the existence of a conspiracy hatched between and
among the four accused, all members of the terrorist group Abu Sayyaf, to wreak chaos
and mayhem in the metropolis by indiscriminately killing and injuring civilian victims by
utilizing bombs and other similar destructive explosive devices.
While said conspiracy involving the four malefactors has not been expressly admitted by
accused Baharan, Angelo Trinidad, and Rohmat, more specifically with respect to the
latter’s participation in the commission of the crimes, nonetheless it has been
established by virtue of the aforementioned evidence, which established the existence of
the conspiracy itself and the indispensable participation of accused Rohmat in seeing to
it that the conspirators’ criminal design would be realized.
74
It is well-established that conspiracy may be inferred from the acts of the accused,
which clearly manifests a concurrence of wills, a common intent or design to commit a
crime (People v. Lenantud, 352 SCRA 544). Hence, where acts of the accused
collectively and individually demonstrate the existence of a common design towards the
accomplishment of the same unlawful purpose, conspiracy is evident and all the
perpetrators will be held liable as principals (People v. Ellado, 353 SCRA 643).
In People v. Geronimo, the Court pronounced that it would be justified in concluding that
the defendants therein were engaged in a conspiracy "when the defendants by their acts
aimed at the same object, one performing one part and the other performing another
part so as to complete it, with a view to the attainment of the same object; and their
acts, though apparently independent, were in fact concerted and cooperative, indicating
closeness of personal association, concerted action and concurrence of sentiments."
Accused contend that the testimony of Asali is inadmissible pursuant to Sec. 30, Rule
130 of the Rules of Court. It is true that under the rule, statements made by a
conspirator against a co-conspirator are admissible only when made during the
existence of the conspiracy. However, as the Court ruled in People v. Buntag, if the
declarant repeats the statement in court, his extrajudicial confession becomes a judicial
admission, making the testimony admissible as to both conspirators. Thus, in People v.
Palijon, the Court held the following:
… [W]e must make a distinction between extrajudicial and judicial confessions. An
extrajudicial confession may be given in evidence against the confessant but not against
his co-accused as they are deprived of the opportunity to cross-examine him. A judicial
confession is admissible against the declarant’s co-accused since the latter are afforded
opportunity to cross-examine the former. Section 30, Rule 130 of the Rules of Court
applies only to extrajudicial acts or admissions and not to testimony at trial where the
party adversely affected has the opportunity to cross-examine the declarant. Mercene’s
admission implicating his co-accused was given on the witness stand. It is admissible in
evidence against appellant Palijon. Moreover, where several accused are tried together
for the same offense, the testimony of a co-accused implicating his co-accused is
competent evidence against the latter.
WHEREFORE, the Petition is DENIED. The Decision of the Regional Trial Court of Makati,
as affirmed with modification by the Court of Appeals, is hereby AFFIRMED.
SO ORDERD.
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CRIM - Use of Unlicensed Firearm - Principal by Inducement

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CRIM - Use of Unlicensed Firearm - Principal by Inducement

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USE OF UNLICENSED FIREARM IN THE COMMISSION OF THE CRIME

G.R. Nos. 136149-51 September 19, 2000

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