1. G.R. No.

154130 October 1, 2003

BENITO ASTORGA, petitioner,

vs.
PEOPLE OF THE PHILIPPINES, respondent.

DECISION

YNARES-SANTIAGO, J.:

This is a petition for review under Rule 45 of the Rules of Court, seeking the reversal of a Decision of the
Sandiganbayan in Criminal Case No. 24986, dated July 5, 2001,1 as well as its Resolutions dated September 28,
2001 and July 10, 2002.

On October 28, 1998, the Office of the Ombudsman filed the following Information against Benito Astorga, Mayor of
Daram, Samar, as well as a number of his men for Arbitrary Detention:

That on or about the 1st day of September, 1997, and for sometime subsequent thereto, at the Municipality of
Daram, Province of Samar, Philippines, and within the jurisdiction of this Honorable Court, the above-named
accused, a public officer, being the Municipal Mayor of Daram, Samar, in such capacity and committing the offense
in relation to office, conniving, confederating and mutually helping with unidentified persons, who are herein referred
to under fictitious names JOHN DOES, who were armed with firearms of different calibers, with deliberate intent, did
then and there willfully, unlawfully and feloniously detain Elpidio Simon, Moises dela Cruz, Wenifredo Maniscan,
Renato Militante and Crisanto Pelias, DENR Employees, at the Municipality of Daram, by not allowing them to leave
the place, without any legal and valid grounds thereby restraining and depriving them of their personal liberty for
nine (9) hours, but without exceeding three (3) days.

CONTRARY TO LAW.2

On September 1, 1997, Regional Special Operations Group (RSOG) of the Department of Environment and Natural
Resources (DENR) Office No. 8, Tacloban City sent a team to the island of Daram, Western Samar to conduct
intelligence gathering and forest protection operations in line with the government’s campaign against illegal logging.
The team was composed of Forester II Moises dela Cruz, Scaler Wenifredo Maniscan, Forest Ranger Renato
Militante, and Tree Marker Crisanto Pelias, with Elpidio E. Simon, Chief of the Forest Protection and Law
Enforcement Section, as team leader. The team was escorted by SPO3 Andres B. Cinco, Jr. and SPO1 Rufo
Capoquian.3

The team stopped at Brgy. Bagacay, Daram, Western Samar at 2:00 p.m., where they saw two yacht-like boats
being constructed. After consulting with the local barangay officials, the team learned that the boats belonged to a
certain Michael Figueroa. However, since Figueroa was not around at the time, the team left Brgy. Bagacay.4

En route to Brgy. Manungca, Sta. Rita, Samar, the team spotted two more boats being constructed in the vicinity of
Brgy. Lucob-Lucob, Daram, Samar, between 4:30-5:00 p.m., prompting them to stop and investigate. Thus,
Maniscan and Militante disembarked from the DENR’s service pump boat and proceeded to the site of the boat
construction. There, they met Mayor Astorga. After conversing with the mayor, Militante returned to their boat for the
purpose of fetching Simon, at the request of Mayor Astorga.5

When Simon, accompanied by dela Cruz, SPO3 Cinco, and SPO1 Capoquian, approached Mayor Astorga to try
and explain the purpose of their mission, Simon was suddenly slapped hard twice on the shoulder by Mayor
Astorga, who exclaimed, "Puwede ko kamo papaglanguyon pag-uli ha Tacloban. Ano, di ka maaram nga natupa
ako? Natupa baya ako. Diri kamo makauli yana kay puwede kame e charge ha misencounter." (I can make you
swim back to Tacloban. Don’t you know that I can box? I can box. Don’t you know that I can declare this a
misencounter?)6 Mayor Astorga then ordered someone to fetch "reinforcements," and forty-five (45) minutes later, or
between 5:00-6:00 p.m., a banca arrived bearing ten (10) men, some of them dressed in fatigue uniforms. The men
were armed with M-16 and M14 rifles, and they promptly surrounded the team, guns pointed at the team
members.7 At this, Simon tried to explain to Astorga the purpose of his team’s mission.8 He then took out his
handheld ICOM radio, saying that he was going to contact his people at the DENR in Catbalogan to inform them of
the team’s whereabouts. Suddenly, Mayor Astorga forcibly grabbed Simon’s radio, saying, "Maupay nga waray
kamo radio bis diri somabut an iyo opisina kon hain kamo, bis diri kamo maka aro hin bulig." (It’s better if you have
no radio so that your office would not know your whereabouts and so that you cannot ask for help).9 Mayor Astorga
again slapped the right shoulder of Simon, adding, "Kong siga kamo ha Leyte ayaw pagdad-a dinhi ha Samar kay
diri kamo puwede ha akon." (If you are tough guys in Leyte, do not bring it to Samar because I will not tolerate it
here.)10 Simon then asked Mayor Astorga to allow the team to go home, at which Mayor Astorga retorted that they
would not be allowed to go home and that they would instead be brought to Daram.11 Mayor Astorga then addressed
the team, saying, "Kon magdakop man la kamo, unahon an mga dagko. Kon madakop niyo an mga dagko, an kan
Figueroa dida ha Bagacay puwede ko liwat ipadakop an akon." (If you really want to confiscate anything, you start
with the big-time. If you confiscate the boats of Figueroa at Brgy. Bagacay, I will surrender mine.)12 Simon then tried
to reiterate his request for permission to leave, which just succeeded in irking Mayor Astorga, who angrily said, "Diri
kamo maka uli yana kay dad on ko kamo ha Daram, para didto kita mag uro istorya." (You cannot go home now
because I will bring you to Daram. We will have many things to discuss there.)13

The team was brought to a house where they were told that they would be served dinner. The team had dinner with
Mayor Astorga and several others at a long table, and the meal lasted between 7:00-8:00 p.m.14 After dinner,
Militante, Maniscan and SPO1 Capoquian were allowed to go down from the house, but not to leave the
barangay.15 On the other hand, SPO3 Cinco and the rest just sat in the house until 2:00 a.m. when the team was
finally allowed to leave.16
1awphi1.nét

Complainants filed a criminal complaint for arbitrary detention against Mayor Astorga and his men, which led to the
filing of the above-quoted Information.

Mayor Astorga was subsequently arraigned on July 3, 2000, wherein he pleaded not guilty to the offenses
charged.17 At the trial, the prosecution presented the testimonies of SPO1 Capoquian and SPO3 Cinco, as well as
their Joint Affidavit.18 However, the presentation of Simon’s testimony was not completed, and none of his fellow
team members came forward to testify. Instead, the members of the team sent by the DENR RSOG executed a
Joint Affidavit of Desistance.19

On July 5, 2001, the Sandiganbayan promulgated its Decision, disposing of the case as follows:

WHEREFORE, premises considered, judgment is hereby rendered finding accused BENITO ASTORGA Y
BOCATCAT guilty of Arbitrary Detention, and in the absence of any mitigating or aggravating circumstances,
applying the Indeterminate Sentence Law, he is hereby sentenced to suffer imprisonment of four (4) months of
arresto mayor as minimum to one (1) year and eight (8) months of prision correctional as maximum.

SO ORDERED.20

The accused filed a Motion for Reconsideration dated July 11, 200121 which was denied by the Sandiganabayan in a
Resolution dated September 28, 2001.22 A Second Motion for Reconsideration dated October 24, 200123 was also
filed, and this was similarly denied in a Resolution dated July 10, 2002.24

Hence, the present petition, wherein the petitioner assigns a sole error for review:

5.1. The trial court grievously erred in finding the accused guilty of Arbitrary Detention as defined and penalized
under Article 124 of the Revised Penal Code, based on mere speculations, surmises and conjectures and, worse,
notwithstanding the Affidavit of Desistance executed by the five (5) complaining witnesses wherein the latter
categorically declared petitioner’s innocence of the crime charged.25

Petitioner contends that the prosecution failed to establish the required quantum of evidence to prove the guilt of the
accused,26 especially in light of the fact that the private complainants executed a Joint Affidavit of
Desistance.27 Petitioner asserts that nowhere in the records of the case is there any competent evidence that could
sufficiently establish the fact that restraint was employed upon the persons of the team members.28 Furthermore, he
claims that the mere presence of armed men at the scene does not qualify as competent evidence to prove that fear
was in fact instilled in the minds of the team members, to the extent that they would feel compelled to stay in Brgy.
Lucob-Lucob.29
Arbitrary Detention is committed by any public officer or employee who, without legal grounds, detains a
person.30 The elements of the crime are:

1. That the offender is a public officer or employee.

2. That he detains a person.

3. That the detention is without legal grounds.31

That petitioner, at the time he committed the acts assailed herein, was then Mayor of Daram, Samar is not disputed.
Hence, the first element of Arbitrary Detention, that the offender is a public officer or employee, is undeniably
present.

Also, the records are bereft of any allegation on the part of petitioner that his acts were spurred by some legal
purpose. On the contrary, he admitted that his acts were motivated by his "instinct for self-preservation" and the
feeling that he was being "singled out."32 The detention was thus without legal grounds, thereby satisfying the third
element enumerated above.

What remains is the determination of whether or not the team was actually detained.

In the case of People v. Acosta,33 which involved the illegal detention of a child, we found the accused-appellant
therein guilty of kidnapping despite the lack of evidence to show that any physical restraint was employed upon the
victim. However, because the victim was a boy of tender age and he was warned not to leave until his godmother,
the accused-appellant, had returned, he was practically a captive in the sense that he could not leave because of
his fear to violate such instruction.34

In the case of People v. Cortez,35 we held that, in establishing the intent to deprive the victim of his liberty, it is not
necessary that the offended party be kept within an enclosure to restrict her freedom of locomotion. At the time of
her rescue, the offended party in said case was found outside talking to the owner of the house where she had been
taken. She explained that she did not attempt to leave the premises for fear that the kidnappers would make good
their threats to kill her should she do so. We ruled therein that her fear was not baseless as the kidnappers knew
where she resided and they had earlier announced that their intention in looking for her cousin was to kill him on
sight. Thus, we concluded that fear has been known to render people immobile and that appeals to the fears of an
individual, such as by threats to kill or similar threats, are equivalent to the use of actual force or violence.36

The prevailing jurisprudence on kidnapping and illegal detention is that the curtailment of the victim’s liberty need
not involve any physical restraint upon the victim’s person. If the acts and actuations of the accused can produce
such fear in the mind of the victim sufficient to paralyze the latter, to the extent that the victim is compelled to limit
his own actions and movements in accordance with the wishes of the accused, then the victim is, for all intents and
purposes, detained against his will.

In the case at bar, the restraint resulting from fear is evident. Inspite of their pleas, the witnesses and the
complainants were not allowed by petitioner to go home.37 This refusal was quickly followed by the call for and arrival
of almost a dozen "reinforcements," all armed with military-issue rifles, who proceeded to encircle the team,
weapons pointed at the complainants and the witnesses.38 Given such circumstances, we give credence to SPO1
Capoquian’s statement that it was not "safe" to refuse Mayor Astorga’s orders.39 It was not just the presence of the
armed men, but also the evident effect these gunmen had on the actions of the team which proves that fear was
indeed instilled in the minds of the team members, to the extent that they felt compelled to stay in Brgy. Lucob-
Lucob. The intent to prevent the departure of the complainants and witnesses against their will is thus clear.

Regarding the Joint Affidavit of Desistance executed by the private complainants, suffice it to say that the principles
governing the use of such instruments in the adjudication of other crimes can be applied here. Thus, in People v.
Ballabare, it was held that an affidavit of desistance is merely an additional ground to buttress the defenses of the
accused, not the sole consideration that can result in acquittal. There must be other circumstances which, when
coupled with the retraction or desistance, create doubts as to the truth of the testimony given by the witnesses at the
trial and accepted by the judge. Here, there are no such circumstances.40 Indeed, the belated claims made in the
Joint Affidavit of Desistance, such as the allegations that the incident was the result of a misunderstanding and that
the team acceded to Mayor Astorga’s orders "out of respect," are belied by petitioner’s own admissions to the
contrary.41 The Joint Affidavit of Desistance of the private complainants is evidently not a clear repudiation of the
material points alleged in the information and proven at the trial, but a mere expression of the lack of interest of
private complainants to pursue the case. This conclusion is supported by one of its latter paragraphs, which reads:
1aw phi 1.nét

11. That this affidavit was executed by us if only to prove our sincerity and improving DENR relations with the local
Chiefs Executive and other official of Daram, Islands so that DENR programs and project can be effectively
implemented through the support of the local officials for the betterment of the residence living conditions who are
facing difficulties and are much dependent on government support.42

Petitioner also assails the weight given by the trial court to the evidence, pointing out that the Sandiganbayan’s
reliance on the testimony of SPO1 Capoquian is misplaced, for the reason that SPO1 Capoquian is not one of the
private complainants in the case.43 He also makes much of the fact that prosecution witness SPO1 Capoquian was
allegedly "not exactly privy to, and knowledgeable of, what exactly transpired between herein accused and the
DENR team leader Mr. Elpidio E. Simon, from their alleged ‘confrontation,’ until they left Barangay Lucob-Lucob in
the early morning of 2 September 1997."44

It is a time-honored doctrine that the trial court’s factual findings are conclusive and binding upon appellate courts
unless some facts or circumstances of weight and substance have been overlooked, misapprehended or
misinterpreted.45 Nothing in the case at bar prompts us to deviate from this doctrine. Indeed, the fact that SPO1
Capoquian is not one of the private complainants is completely irrelevant. Neither penal law nor the rules of
evidence requires damning testimony to be exclusively supplied by the private complainants in cases of Arbitrary
Detention. Furthermore, Mayor Astorga’s claim that SPO1 Capoquian was "not exactly privy" to what transpired
between Simon and himself is belied by the evidence. SPO1 Capoquian testified that he accompanied Simon when
the latter went to talk to petitioner.46 He heard all of Mayor Astorga’s threatening remarks.47 He was with Simon when
they were encircled by the men dressed in fatigues and wielding M-16 and M-14 rifles.48 In sum, SPO1 Capoquian
witnessed all the circumstances which led to the Arbitrary Detention of the team at the hands of Mayor Astorga.

Petitioner submits that it is unclear whether the team was in fact prevented from leaving Brgy. Lucob-Lucob or
whether they had simply decided to "while away the time" and take advantage of the purported hospitality of the
accused.49 On the contrary, SPO3 Cinco clearly and categorically denied that they were simply "whiling away the
time" between their dinner with Mayor Astorga and their departure early the following morning.50 SPO1 Capoquian
gave similar testimony, saying that they did not use the time between their dinner with Mayor Astorga and their
departure early the following morning to "enjoy the place" and that, given a choice, they would have gone home.51

Petitioner argues that he was denied the "cold neutrality of an impartial judge", because the ponente of the assailed
decision acted both as magistrate and advocate when he propounded "very extensive clarificatory questions" on the
witnesses. Surely, the Sandiganbayan, as a trial court, is not an idle arbiter during a trial. It can propound
clarificatory questions to witnesses in order to ferret out the truth. The impartiality of the court cannot be assailed on
the ground that clarificatory questions were asked during the trial.52

Thus, we affirm the judgment of the Sandiganbayan finding petitioner guilty beyond reasonable doubt of Arbitrary
Detention. Article 124 (1) of the Revised Penal Code provides that, where the detention has not exceeded three
days, the penalty shall be arresto mayor in its maximum period to prision correccional in its minimum period, which
has a range of four (4) months and one (1) day to two (2) years and four (4) months. Applying the Indeterminate
Sentence Law, petitioner is entitled to a minimum term to be taken from the penalty next lower in degree, or arresto
mayor in its minimum and medium periods, which has a range of one (1) month and one (1) day to four (4) months.
Hence, the Sandiganbayan was correct in imposing the indeterminate penalty of four (4) months of arresto mayor,
as minimum, to one (1) year and eight (8) months of prision correccional, as maximum.

Before closing, it may not be amiss to quote the words of Justice Perfecto in his concurring opinion in Lino v.
Fugoso, wherein he decried the impunity enjoyed by public officials in committing arbitrary or illegal detention, and
called for the intensification of efforts towards bringing them to justice:

The provisions of law punishing arbitrary or illegal detention committed by government officers form part of our
statute books even before the advent of American sovereignty in our country. Those provisions were already in
effect during the Spanish regime; they remained in effect under American rule; continued in effect under the
Commonwealth. Even under the Japanese regime they were not repealed. The same provisions continue in the
statute books of the free and sovereign Republic of the Philippines. This notwithstanding, and the complaints often
heard of violations of said provisions, it is very seldom that prosecutions under them have been instituted due to the
fact that the erring individuals happened to belong to the same government to which the prosecuting officers belong.
It is high time that every one must do his duty, without fear or favor, and that prosecuting officers should not answer
with cold shrugging of the shoulders the complaints of the victims of arbitrary or illegal detention.

Only by an earnest enforcement of the provisions of articles 124 and 125 of the Revised Penal Code will it be
possible to reduce to its minimum such wanton trampling of personal freedom as depicted in this case. The
responsible officials should be prosecuted, without prejudice to the detainees’ right to the indemnity to which they
may be entitled for the unjustified violation of their fundamental rights.53

WHEREFORE, in view of the foregoing, the petition is hereby DENIED. The Decision of the Sandiganbayan in
Criminal Case No. 24986, dated July 5, 2001 finding petitioner BENITO ASTORGA guilty beyond reasonable doubt
of the crime of Arbitrary Detention and sentencing him to suffer the indeterminate penalty of four (4) months of
arresto mayor, as minimum, to one (1) year and eight (8) months of prision correccional, as maximum, is
AFFIRMED in toto.

Costs de oficio.

SO ORDERED.

Davide, Jr., C.J., (Chairman), Vitug, and Carpio, JJ., concur.

Azcuna, J., on leave.

Footnotes

Records, p. 255; penned by Associate Justice Rodolfo G. Palattao, concurred in by Associate Justices
1

Narciso S. Nario and Nicodemo T. Ferrer.

2
Records, p. 1 (italics and emphasis in the original).

3
TSN, August 14, 2000, p. 6; Exhibit B, p. 1.

4
Id., pp. 7-8; Exhibit B, p. 1.

5
Id., pp. 8-9; Exhibit B, p. 1.

6
Id., pp. 10-12; Exhibit B, p. 1; TSN, August 15, 2000, p. 6.

7
Id., pp. 14-16; Exhibit B, p. 1.

8
Exhibit B, p. 2.

9
TSN, August 14, 2000, p. 13; Exhibit B, p. 2.

10
Exhibit B, p. 2.

11
TSN, August 14, 2000, p. 19.

12
Exhibit B, p. 2.

13
Id.
14
TSN, August 15, 2000, pp. 7, 39.

15
Id., pp. 9, 22.

16
Id., pp. 25, 36.

17
Records, pp. 129, 135.

18
TSN, August 14-15, 2000; Exhibit B.

19
Records, p. 158.

20
Id., p. 265 (emphasis in the original).

21
Id., p. 271.

Id., p. 306; penned by Associate Justice Rodolfo G. Palattao, concurred in by Associate Justices Narciso
22

S. Nario and Nicodemo T. Ferrer.

23
Id., p. 315.

Id., p. 370; penned by Associate Justice Rodolfo G. Palattao, concurred in by Associate Justices Narciso
24

S. Nario and Nicodemo T. Ferrer.

25
Rollo, p. 18.

26
Id., pp. 18-19.

27
Id., p. 35; Records, p. 158.

28
Id., pp. 25-26.

29
Id., p. 27.

30
Revised Penal Code, art. 124.

II Reyes, The Revised Penal Code 43 (14th ed. 1998); citing U.S. v. Braganza, 10 Phil. 79 [1908] and Milo
31

v. Salanga, G.R. No. 37007, 20 July 1987, 152 SCRA 113 (emphasis in the original).

32
Rollo, pp. 30-31.

33
107 Phil. 360 [1960].

34
Id.; emphasis supplied.

35
381 Phil. 345 [2000]; citing People v. Dela Cruz, 342 Phil. 854 [1997] and People v. Ramos, 358 Phil. 261
[1998].

36
Id.; citing People v. Hope, 177 N.E. 402, 257 N.Y. 147.

37
TSN, August 14, 2000, pp. 19-20; TSN, August 15, 2000, p. 17.

38
Id., pp. 14-16; Exhibit B, p. 1.

39
TSN, August 15, 2000, pp. 19-20.
40
People v. Ballabare, 332 Phil. 384 [1996].

41
Records, p. 158; Rollo, pp. 27, 30-31, 32-33, 41.

42
Id., p. 159.

43
Rollo, pp. 28-29.

44
Id., p. 20.

People v. Torellos, G.R. No. 143084, 1 April 2003; citing People v. Daramay, G.R. Nos. 140235 & 142748,
45

9 May 2002.

46
TSN, August 14, 2000, p. 10; Exhibit B, p.1.

47
Id., pp. 10-14, Exhibit B, pp.1-2.

48
Id., p. 15; Exhibit B, p.1.

49
Rollo, pp. 24-25.

50
TSN, August 15, 2000, p. 36.

51
Id., p. 26.

52
People v. Pinuela, G.R. Nos. 140727-28, 31 January 2003.

53
Lino v. Fugoso, 77 Phil. 983 [1947]; concurring opinion of Justice Perfecto.
 2. G.R. No. 162808 April 22, 2008

FELICIANO GALVANTE, petitioner,

vs.
HON. ORLANDO C. CASIMIRO, Deputy Ombudsman for the Military and Other Law Enforcement Offices,
BIENVENIDO C. BLANCAFLOR, Director, DENNIS L. GARCIA, Graft Investigation and Prosecution Officer,
SPO4 RAMIL AVENIDO, PO1 EDDIE DEGRAN, PO1 VALENTINO RUFANO, and PO1 FEDERICO
BALOLOT, respondents.

DECISION

AUSTRIA-MARTINEZ, J.:

Assailed herein by Petition for Certiorari and Mandamus under Rule 65 of the Rules of Court are the October 30,
2003 Resolution1 of the Office of the Deputy Ombudsman for the Military and Other Law Enforcement Offices -
Office of the Ombudsman (Ombudsman) which dismissed for lack of probable cause the criminal complaint,
docketed as OMB-P-C-02-0109-B, filed by Feliciano Galvante2 (petitioner) against SPO4 Benjamin Conde, PO1
Ramil Avenido, PO1 Eddie Degran, PO1 Valentino Rufano, and PO1 Federico Balolot (private respondents) for
arbitrary detention, illegal search and grave threats; and the January 20, 2004 Ombudsman Order3 which denied his
motion for reconsideration.

The facts are of record.

In the afternoon of May 14, 2001 at Sitio Cahi-an, Kapatungan, Trento, Agusan del Sur, private respondents
confiscated from petitioner one colt pistol super .38 automatic with serial no. 67973, one short magazine, and nine
super .38 live ammunitions.4 The confiscated materials were covered by an expired Memorandum Receipt dated
September 2, 1999.5

Consequently, the Assistant Provincial Prosecutor filed against petitioner an Information6 for Illegal Possession of
Firearms and Ammunitions in Relation to Commission on Elections (Comelec) Resolution No. 3258, docketed as
Criminal Case No. 5047, before the Regional Trial Court (RTC), Prosperidad, Agusan del Sur.

Pending resolution of Criminal Case No. 5047, petitioner filed against private respondents an administrative case,
docketed as Administrative Case No. IASOB-020007 for Grave Misconduct, before the Internal Affairs Service (IAS),
Region XIII, Department of Interior and Local Government (DILG);7 and a criminal case, docketed as OMB-P-C-02-
0109-B for Arbitrary Detention, Illegal Search and Grave Threats, before the Ombudsman.8

In the June 21, 2001 Affidavit-Complaint he filed in both cases, petitioner narrated how, on May 14, 2001, private
respondents aimed their long firearms at him, arbitrarily searched his vehicle and put him in detention, thus:

1. That sometime on May 14, 2001 I left my house at around 1:00 o'clock in the afternoon after having lunch
for Sitio Cahi-an, Brgy. Kapatungan, Trento, Agusan del Sur to meet retired police Percival Plaza and
inquire about the retirement procedure for policemen;

2. That upon arrival at the house of retired police Percival Plaza, together with Lorenzo Sanoria, Delfin
Ramirez and Pedro Ramas who asked for a ride from the highway in going to Sitio Cahi-an, I immediately
went down of the jeep but before I could call Mr. Plaza, four policemen in uniform blocked my way;

3. That the four policemen were [private respondents] PO1 Romil Avenido PNP, PO1 Valentino Rufano,
PNP both member of 142nd Company, Regional Mobile Group and PO1 Eddie Degran PNP and PO1
Federico Balolot PNP members of 1403 Prov'l Mobile Group, all of Bunawan Brook, Bunawan, Agusan del
Sur; who all pointed their long firearms ready to fire [at] me, having heard the sound of the release of the
safety lock;

4. That raising my arms, I heard [private respondent] PO1 Avenido saying, "ANG IMONG PUSIL, IHATAG"
which means "Give me your firearm," to which I answered, "WALA MAN KO'Y PUSIL" translated as "I have
no firearm," showing my waistline when I raised my T-shirt;
 5. That my other companions on the jeep also went down and raised their arms and showed their waistline
when the same policemen and a person in civilian attire holding an armalite also pointed their firearms to
them to which Mr. Percival Plaza who came down from his house told them not to harass me as I am also a
former police officer but they did not heed Mr. Plaza's statements;

6. That while we were raising our arms [private respondent] SPO4 Benjamin Conde, Jr. went near my owner
type jeep and conducted a search. To which I asked them if they have any search warrant;

7. That after a while they saw my super .38 pistol under the floormat of my jeep and asked me of the MR of
the firearm but due to fear that their long arms were still pointed to us, I searched my wallet and gave the
asked [sic] document;

8. That immediately the policemen left me and my companions without saying anything bringing with them
the firearm;

9. That at about 2:30 p.m., I left Mr. Percival's house and went to Trento Police Station where I saw a person
in civilian attire with a revolver tucked on his waist, to which I asked the police officers including those who
searched my jeep to apprehend him also;

10. That nobody among the policemen at the station made a move to apprehend the armed civilian person
so I went to the office of Police Chief Rocacorba who immediately called the armed civilian to his office and
when already inside his office, the disarming was done;

11. That after the disarming of the civilian I was put to jail with the said person by Police Chief Rocacorba
and was released only at 4:00 o'clock in the afternoon of May 16, 2001 after posting a bailbond;

12. That I caused the execution of this document for the purpose of filing cases of Illegal Search, Grave
Misconduct and Abuse of Authority against SPO4 Benjamin Conde, Jr., of Trento Police Station; PO1 Ramil
Avenido, PO1 Velantino Rufano, PO1 Federico Balolot and PO1 Eddie Degran.9

Petitioner also submitted the Joint Affidavit10 of his witnesses, Lorenzo Sanoria and Percival Plaza.

Private respondent Conde filed a Counter-Affidavit dated March 20, 2002, where he interposed the following
defenses:

First, he had nothing to do with the detention of petitioner as it was Chief of Police/Officer-in-Charge Police
Inspector Dioscoro Mehos Rocacorba who ordered the detention. Petitioner himself admitted this fact in his own
Complaint-Affidavit;11 and

Second, he denies searching petitioner's vehicle,12 but admits that even though he was not armed with a warrant, he
searched the person of petitioner as the latter, in plain view, was committing a violation of Comelec Resolutions No.
3258 and No. 3328 by carrying a firearm in his person.

Private respondents Avenido, Degran, Rufano and Balolot filed their Joint-Affidavit dated March 25, 2002, which
contradicts the statements of private respondent Conde, viz:

1. that we executed a joint counter-affidavit dated August 28, 2001 where we stated among other things, that
"we saw Feleciano "Nani" Galvante armed with a handgun/pistol tucked on his waist;"

2. that this statement is not accurate because the truth of the matter is that the said handgun was taken by
SPO4 BENJAMIN CONDE, JR., who was acting as our team leader during the May 14, 2001 Elections, from
the jeep of Mr. Galvante after searching the same; and

3. that we noticed the aforementioned discrepancy in our affidavit dated August 28, 2001 after we have
already affixed our signatures thereon.13
Consequently, petitioner filed an Affidavit of Desistance dated March 25, 2002 with both the IAS and Ombudsman,
absolving private respondents Avenido, Degran, Rufano and Balolot, but maintaining that private respondent Conde
alone be prosecuted in both administrative and criminal cases.14

On July 17, 2002, the IAS issued a Decision in Administrative Case No. IASOB-020007, finding all private
respondents guilty of grave misconduct but penalized them with suspension only. The IAS noted however that
private respondents were merely being "[enthusiastic] in the conduct of the arrest in line of duty." 15

Meanwhile, in Criminal Case No. 5047, petitioner filed with the RTC a Motion for Preliminary Investigation and to
Hold in Abeyance the Issuance of or Recall the Warrant of Arrest.16 The RTC granted the same in an Order17 dated
August 17, 2001. Upon reinvestigation, Prosecutor II Eliseo Diaz, Jr. filed a "Reinvestigation with Motion to Dismiss"
dated November 22, 2001, recommending the dismissal of Criminal Case No. 5047 on the ground that "the action of
the policemen who conducted the warrantless search in spite of the absence of any circumstances justifying the
same intruded into the privacy of the accused and the security of his property."18 Officer-in-Charge Prosecutor II
Victoriano Pag-ong approved said recommendation.19

The RTC granted the prosecution's motion to dismiss in an Order20 dated January 16, 2003.

Apparently unaware of what transpired in Criminal Case No. 5047, Ombudsman Investigation & Prosecution Officer
Dennis L. Garcia issued in OMB-P-C-02-0109-B, the October 30, 2003 Resolution, to wit:

After a careful evaluation, the undersigned prosecutor finds no probable cause for any of the offenses
charged against above-named respondents.

The allegations of the complainant failed to establish the factual basis of the complaint, it appearing from
the records that the incident stemmed from a valid warrantless arrest. The subsequent execution of an
affidavit of desistance by the complainant rendered the complaint even more uncertain and subject to doubt,
especially so since it merely exculpated some but not all of the respondents. These circumstances, coupled
with the presumption of regularity in the performance of duty, negates any criminal liability on the part of the
respondents.

WHEREFORE, premises considered, it is hereby recommended that the above-captioned case be

dismissed for lack of probable cause.21 (Emphasis supplied)

Upon the recommendation of Director Bienvenido C. Blancaflor, Deputy Ombudsman for the Military Orlando C.
Casimiro (Deputy Ombudsman) approved the October 30, 2003 Resolution.22

In his Motion for Reconsideration,23 petitioner called the attention of the Ombudsman to the earlier IAS Decision, the
Reinvestigation with Motion to Dismiss of Prosecutor II Eliseo Diaz, Jr. and the RTC Order, all of which declared the
warrantless search conducted by private respondents illegal,24 which are contradicted by the October 30, 2003
Ombudsman Resolution declaring the warrantless search legal.

The Ombudsman denied petitioner's motion for reconsideration on the ground that the latter offered "no new
evidence or errors of law which would warrant the reversal or modification"25 of its October 30, 2003 Resolution.

Petitioner filed the present petition, attributing to Deputy Ombudsman Casimiro, Director Blancaflor and Prosecutor
Garcia (public respondents) the following acts of grave abuse of discretion:

I. Public respondents acted without or in excess of their jurisdiction and/or with grave abuse of discretion
amounting to lack or excess of jurisdiction when, in their Resolution dated October 30, 2003, public
respondents found that the incident upon which petitioner's criminal complaint was based stemmed from a
valid warrantless arrest and dismissed petitioner's complaint despite the fact that:

A. Petitioner has clearly shown that the search conducted by the private respondents was made
without a valid warrant, nor does it fall under any of the instances of valid warrantless searches.
 B. Notwithstanding the absence of a valid warrant, petitioner was arrested and detained by the
private respondents.

II. Public respondents acted without or in excess of their jurisdiction and/or with grave abuse of discretion
amounting to lack or excess of jurisdiction when, in their Order dated January 20, 2004, public respondents
denied the petitioner's motion for reconsideration in a capricious, whimsical, despotic and arbitrary
manner. 26

In its Memorandum,27 the Office of the Solicitor General argued that public respondents acted within the bounds of
their discretion in dismissing OMB-P-C-02-0109-B given that private respondents committed no crime in searching
petitioner and confiscating his firearm as the former were merely performing their duty of enforcing the law against
illegal possession of firearms and the Comelec ban against the carrying of firearms outside of one's residence.

Private respondent Conde filed a Comment28 and a Memorandum for himself.29 Private respondents Avenido,
Degran, Rufano and Balolot filed their separate Letter-Comment dated June 25, 2004.30

The petition lacks merit.

The Constitution vests in the Ombudsman the power to determine whether there exists reasonable ground to
believe that a crime has been committed and that the accused is probably guilty thereof and, thereafter, to file the
corresponding information with the appropriate courts.31 The Court respects the relative autonomy of the
Ombudsman to investigate and prosecute, and refrains from interfering when the latter exercises such powers either
directly or through the Deputy Ombudsman,32 except when the same is shown to be tainted with grave abuse of
discretion amounting to lack or excess of jurisdiction.33

Grave abuse of discretion is an evasion of a positive duty or a virtual refusal to perform a duty enjoined by law or to
act in contemplation of law as when judgment rendered is not based on law and evidence but on caprice, whim and
despotism.34 This does not obtain in the present case.

It is noted that the criminal complaint which petitioner filed with the Ombudsman charges private respondents with
warrantless search, arbitrary detention, and grave threats.

The complaint for warrantless search charges no criminal offense. The conduct of a warrantless search is not a
criminal act for it is not penalized under the Revised Penal Code (RPC) or any other special law. What the RPC
punishes are only two forms of searches:

Art. 129. Search warrants maliciously obtained and abuse in the service of those legally obtained. - In
addition to the liability attaching to the offender for the commission of any other offense, the penalty
of arresto mayor in its maximum period to prision correccional in its minimum period and a fine not
exceeding P1,000.00 pesos shall be imposed upon any public officer or employee who shall procure a
search warrant without just cause, or, having legally procured the same, shall exceed his authority or use
unnecessary severity in executing the same.

Art. 130. Searching domicile without witnesses. - The penalty of arresto mayor in its medium and maximum
periods shall be imposed upon a public officer or employee who, in cases where a search is proper, shall
search the domicile, papers or other belongings of any person, in the absence of the latter, any member of
his family, or in their default, without the presence of two witnesses residing in the same locality.

Petitioner did not allege any of the elements of the foregoing felonies in his Affidavit-Complaint; rather, he accused
private respondents of conducting a search on his vehicle without being armed with a valid warrant. This situation,
while lamentable, is not covered by Articles 129 and 130 of the RPC.

The remedy of petitioner against the warrantless search conducted on his vehicle is civil,35 under Article 32, in
relation to Article 221936 (6) and (10) of the Civil Code, which provides:
 Art. 32. Any public officer or employee, or any private individual, who directly or indirectly obstructs, defeats,
violates or in any manner impedes or impairs any of the following rights and liberties of another person shall
be liable to the latter for damages:

xxxx

(9) The right to be secure in one's person, house, papers, and effects against unreasonable searches and
seizures;

xxxx

The indemnity shall include moral damages. Exemplary damages may also be adjudicated.

and/or disciplinary and administrative, under Section 41 of Republic Act No. 6975.37

To avail of such remedies, petitioner may file against private respondents a complaint for damages with the regular
courts38 or an administrative case with the PNP/DILG,39 as petitioner did in Administrative Case No. IASOB-020007,
and not a criminal action with the Ombudsman.

Public respondents' dismissal of the criminal complaint for illegal search which petitioner filed with the Ombudsman
against private respondents was therefore proper, although the reasons public respondents cited for dismissing the
complaint are rather off the mark because they relied solely on the finding that the warrantless search conducted by
private respondents was valid and that the Affidavit of Desistance which petitioner executed cast doubt on the
veracity of his complaint.40 Public respondents completely overlooked the fact that the criminal complaint was not
cognizable by the Ombudsman as illegal search is not a criminal offense. Nevertheless, the result achieved is the
same: the dismissal of a groundless criminal complaint for illegal search which is not an offense under the RPC.
Thus, the Court need not resolve the issue of whether or not public respondents erred in their finding on the validity
of the search for that issue is completely hypothetical under the circumstance.

The criminal complaint for abitrary detention was likewise properly dismissed by public respondents. To sustain a
criminal charge for arbitrary detention, it must be shown that (a) the offender is a public officer or employee, (b) the
offender detained the complainant, and (c) the detention is without legal grounds.41 The second element was not
alleged by petitioner in his Affidavit-Complaint. As pointed out by private respondent Conde in his Comment42 and
Memorandum,43 petitioner himself identified in his Affidavit-Complaint that it was Police Chief Rocacorba who
caused his detention. Nowhere in said affidavit did petitioner allege that private respondents effected his detention,
or were in any other way involved in it.44 There was, therefore, no factual or legal basis to sustain the criminal
charge for arbitrary detention against private respondents.

Finally, on the criminal complaint for grave threats, the Solicitor General aptly pointed out that the same is based
merely on petitioner's bare allegation that private respondents aimed their firearms at him.45 Such bare allegation
stands no chance against the well-entrenched rule applicable in this case, that public officers enjoy a presumption of
regularity in the performance of their official function.46 The IAS itself observed that private respondents may have
been carried away by their "enthusiasm in the conduct of the arrest in line of duty."47 Petitioner expressed the same
view when, in his Affidavit of Desistance, he accepted that private respondents may have been merely following
orders when they pointed their long firearms at him.

All said, public respondents did not act with grave abuse of discretion in dismissing the criminal complaint against
private respondents.

WHEREFORE, the petition is DENIED.

No costs.

SO ORDERED.

Ynares-Santiago, Chairperson, Chico-Nazario, Nachura, Reyes, JJ., concur.

Footnotes

1Issued by Ombudsman Investigation and Prosecution Officer Dennis L. Garcia and approved by Deputy
Ombudsman for the Military Orlando C. Casimiro; rollo, p. 25.

2 A retired police officer accused in Criminal Case No. 5047 of illegal possession of firearms.

3 Rollo, p. 27.

4 Exhibit "R," id. at 186.

5 Exhibit "I," id. at 185.

6 Id. at 107.

7 Id. at 30.

8 Id. at 25.

9 Records, pp. 2-3.

10 Id. at 6.

11 March 20, 2002 Counter-Affidavit, p. 1; records, unnumbered page.

12 Id. at 2.

13 Rollo, p. 28.

14 Id. at 71.

15 Id. at 30.

16 Records, unnumbered page.

17 Id., unnumbered page.

18 Records, unnumbered page.

19 Id.

20 Rollo, p. 33.

21 Id. at 26.

22 Id.

23 Id. at 34.

24 Id. at 37-38.

25
Rollo, p. 27.
26 Id. at 13.

27 Id. at 137.

28 Rollo, p. 61.

29 Id. at 176.

30 Id. at 70.

31Section 13, Article XI (Accountability of Public Officers): The Office of the Ombudsman shall have the
following powers, functions, and duties: (1) Investigate on its own, or on complaint by any person, any act or
omission of any public official, employee, office or agency, when such act or omission appears to be illegal,
unjust, improper, or inefficient.

Salma v. Miro, G.R. No. 168362, January 25, 2007, 512 SCRA 724, 737; Brito v. Office of the Deputy
32

Ombudsman for Luzon, G.R. Nos. 167335, 167337 and 173152, July 10, 2007, 527 SCRA 215, 231.

33 Esquivel v. Ombudsman, 437 Phil. 702, 715 (2002); Salma v.Miro, supra note 32, at 738.

34Baviera v. Zoleta, G.R. No. 169098, October 12, 2006, 504 SCRA 281, 303; Soria v. Desierto, G.R. Nos.
153524-25, January 31, 2005, 450 SCRA 339, 345.

35 Silahis International Hotel, Inc. v. Soluta, G.R. No. 163087, February 20, 2006, 482 SCRA 660, 672.

36 Art. 2219. Moral damages may be recovered in the following and analogous cases: x x x (6) Illegal search;

x x x.

37 Department of the Interior and Local Government Act of 1990.

38 Lui v. Matillano, G.R. No. 141176, May 27, 2004, 429 SCRA 449, 475.

39 Cayago v. Lina, G.R. No. 149539, January 19, 2005, 449 SCRA 29, 42.

40 Rollo, p. 26.

41 Astorga v. People of the Philippines, 459 Phil. 140, 151 (2003).

42 Rollo, p. 62.

43 Id. at 180-181.

44 Affidavit-Complaint, p. 2; records, unnumbered page.

45 Rollo, p. 146.

Salma v. Miro, supra note 32, at 735, citing Rules of Court, Rule 131, Sec. 3(m); Ombudsman v. Court of
46

Appeals, G.R. No. 147762, October 12, 2006, 504 SCRA 321.

47 Rollo, p. 30.
 3. G.R. Nos. 172070-72 June 1, 2007

VICENTE P. LADLAD, NATHANAEL S. SANTIAGO, RANDALL B. ECHANIS, and REY CLARO C.

CASAMBRE, Petitioners,
vs.
SENIOR STATE PROSECUTOR EMMANUEL Y. VELASCO, SENIOR STATE PROSECUTOR JOSELITA C.
MENDOZA, SENIOR STATE PROSECUTOR AILEEN MARIE S. GUTIERREZ, STATE PROSECUTOR IRWIN A.
MARAYA, and STATE PROSECUTOR MERBA A. WAGA, in their capacity as members of the Department of
Justice panel of prosecutors investigating I.S. Nos. 2006-225, 2006-226 and 2006-234, JUSTICE SECRETARY
RAUL M. GONZALEZ, DIRECTOR GENERAL ARTURO C. LOMIBAO, in his capacity as Chief, Philippine
National Police, P/CSUPT. RODOLFO B. MENDOZA, JR., and P/SUPT. YOLANDA G. TANIGUE, Respondents.

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

G.R. Nos. 172074-76 June 1, 2007

LIZA L. MAZA, JOEL G. VIRADOR, SATURNINO C. OCAMPO, TEODORO A. CASIÑO, CRISPIN B. BELTRAN,
and RAFAEL V. MARIANO, Petitioners,
vs.
RAUL M. GONZALEZ, in his capacity as Secretary of the Department of Justice, JOVENCITO R. ZUÑO, in his
capacity as Chief State Prosecutor, the Panel of Investigating Prosecutors composed of EMMANUEL Y.
VELASCO, JOSELITA C. MENDOZA, AILEEN MARIE S. GUTIERREZ, IRWIN A. MARAYA and MERBA A.
WAGA (Panel), RODOLFO B. MENDOZA, in his capacity as Acting Deputy Director, Directorate for
Investigation and Detective Management (DIDM), YOLANDA G. TANIGUE, in her capacity as Acting
Executive Officer of DIDM, the DEPARTMENT OF JUSTICE (DOJ), and the PHILIPPINE NATIONAL POLICE
(PNP), Respondents.

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

G.R. No. 175013 June 1, 2007

CRISPIN B. BELTRAN, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES, SECRETARY RAUL M. GONZALEZ, in his capacity as the Secretary of
Justice and overall superior of the Public Prosecutors, HONORABLE ENCARNACION JAJA G. MOYA, in her
capacity as Presiding Judge of Regional Trial Court of Makati City, Branch 146, and HONORABLE ELMO M.
ALAMEDA, in his capacity as Presiding Judge of Regional Trial Court of Makati City, Branch
150, Respondents.

DECISION

CARPIO, J.:

The Case

These are consolidated petitions for the writs of prohibition and certiorari to enjoin petitioners’ prosecution for
Rebellion and to set aside the rulings of the Department of Justice (DOJ) and the Regional Trial Court of Makati City
(RTC Makati) on the investigation and prosecution of petitioners’ cases.

The Facts

Petitioner in G.R. No. 175013, Crispin B. Beltran (Beltran), and petitioners in G.R. Nos. 172074-76, Liza L. Maza
(Maza), Joel G. Virador (Virador), Saturnino C. Ocampo (Ocampo), Teodoro A. Casiño (Casiño), and Rafael V.
Mariano (Mariano),1 are members of the House of Representatives representing various party-list
groups.2 Petitioners in G.R. Nos. 172070-72 are private individuals. Petitioners all face charges for Rebellion under
Article 134 in relation to Article 135 of the Revised Penal Code in two criminal cases pending with the RTC Makati.
 G.R. No. 175013 (The Beltran Petition)

Following the issuance by President Gloria Macapagal-Arroyo of Presidential Proclamation No. 1017 on 24
February 2006 declaring a "State of National Emergency," police officers3 arrested Beltran on 25 February 2006,
while he was en route to Marilao, Bulacan, and detained him in Camp Crame, Quezon City. Beltran was arrested
without a warrant and the arresting officers did not inform Beltran of the crime for which he was arrested. On that
evening, Beltran was subjected to an inquest at the Quezon City Hall of Justice for Inciting to Sedition under Article
142 of the Revised Penal Code based on a speech Beltran allegedly gave during a rally in Quezon City on 24
February 2006, on the occasion of the 20th anniversary of the EDSA Revolution. The inquest was based on the joint
affidavit of Beltran’s arresting officers who claimed to have been present at the rally. The inquest
prosecutor4 indicted Beltran and filed the corresponding Information with the Metropolitan Trial Court of Quezon City
(MeTC).5

The authorities brought back Beltran to Camp Crame where, on 27 February 2006, he was subjected to a second
inquest, with 1st Lt. Lawrence San Juan (San Juan), this time for Rebellion. A panel of State prosecutors6 from the
DOJ conducted this second inquest. The inquest was based on two letters, both dated 27 February 2006, of
Yolanda Tanigue (Tanigue) and of Rodolfo Mendoza (Mendoza). Tanigue is the Acting Executive Officer of the
Criminal Investigation and Detection Group (CIDG), Philippine National Police (PNP), while Mendoza is the Acting
Deputy Director of the CIDG. The letters referred to the DOJ for appropriate action the results of the CIDG’s
investigation implicating Beltran, the petitioners in G.R. Nos. 172074-76, San Juan, and several others as "leaders
and promoters" of an alleged foiled plot to overthrow the Arroyo government. The plot was supposed to be carried
out jointly by members of the Communist Party of the Philippines (CPP) and the Makabayang Kawal ng Pilipinas
(MKP), which have formed a "tactical alliance."

On 27 February 2006, the DOJ panel of prosecutors issued a Resolution finding probable cause to indict Beltran
and San Juan as "leaders/promoters" of Rebellion. The panel then filed an Information with the RTC Makati. The
Information alleged that Beltran, San Juan, and other individuals "conspiring and confederating with each other, x x
x, did then and there willfully, unlawfully, and feloniously form a tactical alliance between the CPP/NPA, renamed as
Partidong Komunista ng Pilipinas (PKP) and its armed regular members as Katipunan ng Anak ng Bayan (KAB) with
the Makabayang Kawal ng Pilipinas (MKP) and thereby rise publicly and take up arms against the duly constituted
government, x x x."7 The Information, docketed as Criminal Case No. 06-452, was raffled to Branch 137 under
Presiding Judge Jenny Lind R. Aldecoa-Delorino (Judge Delorino).

Beltran moved that Branch 137 make a judicial determination of probable cause against him.8 Before the motion
could be resolved, Judge Delorino recused herself from the case which was re-raffled to Branch 146 under Judge
Encarnacion Jaja-Moya (Judge Moya).

In its Order dated 31 May 2006, Branch 146 sustained the finding of probable cause against Beltran.9 Beltran sought
reconsideration but Judge Moya also inhibited herself from the case without resolving Beltran’s motion. Judge Elmo
M. Alameda of Branch 150, to whom the case was re-raffled, issued an Order on 29 August 2006 denying Beltran’s
motion.

Hence, the petition in G.R. No. 175013 to set aside the Orders dated 31 May 2006 and 29 August 2006 and to
enjoin Beltran’s prosecution.

In his Comment to the petition, the Solicitor General claims that Beltran’s inquest for Rebellion was valid and that
the RTC Makati correctly found probable cause to try Beltran for such felony.

G.R. Nos. 172070-72 and 172074-76 (The Maza and Ladlad Petitions)

Based on Tanigue and Mendoza’s letters, the DOJ sent subpoenas to petitioners on 6 March 2006 requiring them to
appear at the DOJ Office on 13 March 2006 "to get copies of the complaint and its attachment." Prior to their receipt
of the subpoenas, petitioners had quartered themselves inside the House of Representatives building for fear of
being subjected to warrantless arrest.

During the preliminary investigation on 13 March 2006, the counsel for the CIDG presented a masked man, later
identified as Jaime Fuentes (Fuentes), who claimed to be an eyewitness against petitioners. Fuentes subscribed to
his affidavit before respondent prosecutor Emmanuel Velasco who then gave copies of the affidavit to media
members present during the proceedings. The panel of prosecutors10 gave petitioners 10 days within which to file
their counter-affidavits. Petitioners were furnished the complete copies of documents supporting the CIDG’s letters
only on 17 March 2006.

Petitioners moved for the inhibition of the members of the prosecution panel for lack of impartiality and
independence, considering the political milieu under which petitioners were investigated, the statements that the
President and the Secretary of Justice made to the media regarding petitioners’ case,11 and the manner in which the
prosecution panel conducted the preliminary investigation. The DOJ panel of prosecutors denied petitioners’ motion
on 22 March 2006. Petitioners sought reconsideration and additionally prayed for the dismissal of the cases.
However, the panel of prosecutors denied petitioners’ motions on 4 April 2006.

Petitioners now seek the nullification of the DOJ Orders of 22 March 2006 and 4 April 2006.

Acting on petitioners’ prayer for the issuance of an injunctive writ, the Court issued a status quo order on 5 June
2006. Prior to this, however, the panel of prosecutors, on 21 April 2006, issued a Resolution finding probable cause
to charge petitioners and 46 others with Rebellion. The prosecutors filed the corresponding Information with Branch
57 of the RTC Makati, docketed as Criminal Case No. 06-944 (later consolidated with Criminal Case No. 06-452 in
Branch 146), charging petitioners and their co-accused as "principals, masterminds, [or] heads" of a
Rebellion.12 Consequently, the petitioners in G.R. Nos. 172070-72 filed a supplemental petition to enjoin the
prosecution of Criminal Case No. 06-944.

In his separate Comment to the Maza petition, the Solicitor General submits that the preliminary investigation of
petitioners was not tainted with irregularities. The Solicitor General also claims that the filing of Criminal Case No.
06-944 has mooted the Maza petition.

The Issues

The petitions raise the following issues:

1. In G.R. No. 175013, (a) whether the inquest proceeding against Beltran for Rebellion was valid and (b) whether
there is probable cause to indict Beltran for Rebellion; and

2. In G.R. Nos. 172070-72 and 172074-76, whether respondent prosecutors should be enjoined from continuing with
the prosecution of Criminal Case No. 06-944.13

The Ruling of the Court

We find the petitions meritorious. On the Beltran Petition

The Inquest Proceeding against Beltran for Rebellion is Void.

Inquest proceedings are proper only when the accused has been lawfully arrested without warrant.14 Section 5, Rule
113 of the Revised Rules of Criminal Procedure provides the instances when such warrantless arrest may be
effected, thus:

Arrest without warrant; when lawful.— A peace officer or a private person may, without a warrant, arrest a person:

(a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to
commit an offense;

(b) When an offense has just been committed and he has probable cause to believe based on personal knowledge
of facts or circumstances that the person to be arrested has committed it; and

xxxx
In cases falling under paragraphs (a) and (b) above, the person arrested without a warrant shall be forthwith
delivered to the nearest police station or jail and shall be proceeded against in accordance with section 7 of Rule
112.

The joint affidavit of Beltran’s arresting officers15 states that the officers arrested Beltran, without a warrant,16 for
Inciting to Sedition, and not for Rebellion. Thus, the inquest prosecutor could only have conducted – as he did
conduct – an inquest for Inciting to Sedition and no other. Consequently, when another group of prosecutors
subjected Beltran to a second inquest proceeding for Rebellion, they overstepped their authority rendering the
second inquest void. None of Beltran’s arresting officers saw Beltran commit, in their presence, the crime of
Rebellion. Nor did they have personal knowledge of facts and circumstances that Beltran had just committed
Rebellion, sufficient to form probable cause to believe that he had committed Rebellion. What these arresting
officers alleged in their affidavit is that they saw and heard Beltran make an allegedly seditious speech on 24
February 2006.17

Indeed, under DOJ Circular No. 61, dated 21 September 1993, the initial duty of the inquest officer is to determine if
the arrest of the detained person was made "in accordance with the provisions of paragraphs (a) and (b) of Section
5, Rule 113."18 If the arrest was not properly effected, the inquest officer should proceed under Section 9 of Circular
No. 61 which provides:

Where Arrest Not Properly Effected.— Should the Inquest Officer find that the arrest was not made in accordance
with the Rules, he shall:

a) recommend the release of the person arrested or detained;

b) note down the disposition on the referral document;

c) prepare a brief memorandum indicating the reasons for the action taken; and

d) forward the same, together with the record of the case, to the City or Provincial Prosecutor for appropriate
action.

Where the recommendation for the release of the detained person is approved by the City or Provincial Prosecutor
but the evidence on hand warrant the conduct of a regular preliminary investigation, the order of release shall be
served on the officer having custody of said detainee and shall direct the said officer to serve upon the detainee the
subpoena or notice of preliminary investigation, together with the copies of the charge sheet or complaint, affidavit
or sworn statements of the complainant and his witnesses and other supporting evidence. (Emphasis supplied)

For the failure of Beltran’s panel of inquest prosecutors to comply with Section 7, Rule 112 in relation to Section 5,
Rule 113 and DOJ Circular No. 61, we declare Beltran’s inquest void.19 Beltran would have been entitled to a
preliminary investigation had he not asked the trial court to make a judicial determination of probable cause, which
effectively took the place of such proceeding.

There is No Probable Cause to Indict

Beltran for Rebellion.

Probable cause is the "existence of such facts and circumstances as would excite the belief in a reasonable mind,
acting on the facts within the knowledge of the prosecutor, that the person charged was guilty of the crime for which
he was prosecuted."20 To accord respect to the discretion granted to the prosecutor and for reasons of practicality,
this Court, as a rule, does not interfere with the prosecutor’s determination of probable cause for otherwise, courts
would be swamped with petitions to review the prosecutor’s findings in such investigations.21 However, in the few
exceptional cases where the prosecutor abused his discretion by ignoring a clear insufficiency of evidence to
support a finding of probable cause, thus denying the accused his right to substantive and procedural due process,
we have not hesitated to intervene and exercise our review power under Rule 65 to overturn the prosecutor’s
findings.22 This exception holds true here.

Rebellion under Article 134 of the Revised Penal Code is committed –

[B]y rising publicly and taking arms against the Government for the purpose of removing from the allegiance to said
Government or its laws, the territory of the Republic of the Philippines or any part thereof, or any body of land, naval,
or other armed forces or depriving the Chief Executive or the Legislature, wholly or partially, of any of their powers
or prerogatives.

The elements of the offense are:

1. That there be a (a) public uprising and (b) taking arms against the Government; and

2. That the purpose of the uprising or movement is either –

(a) to remove from the allegiance to said Government or its laws:

(1) the territory of the Philippines or any part thereof; or

(2) any body of land, naval, or other armed forces; or

(b) to deprive the Chief Executive or Congress, wholly or partially, of any of their powers and
prerogatives.23

Thus, by its nature, rebellion is a crime of the masses or multitudes involving crowd action done in furtherance of a
political end.24

The evidence before the panel of prosecutors who conducted the inquest of Beltran for Rebellion consisted of the
affidavits and other documents25 attached to the CIDG letters. We have gone over these documents and find merit
in Beltran’s contention that the same are insufficient to show probable cause to indict him for Rebellion. The bulk of
the documents consists of affidavits, some of which were sworn before a notary public, executed by members of the
military and some civilians. Except for two affidavits, executed by a certain Ruel Escala (Escala), dated 20 Febuary
2006,26 and Raul Cachuela (Cachuela), dated 23 February 2006,27 none of the affidavits mentions Beltran.28 In his
affidavit, Escala recounted that in the afternoon of 20 February 2006, he saw Beltran, Ocampo, Casiño, Maza,
Mariano, Virador, and other individuals on board a vehicle which entered a chicken farm in Bucal, Padre Garcia,
Batangas and that after the passengers alighted, they were met by another individual who looked like San Juan. For
his part, Cachuela stated that he was a former member of the CPP and that (1) he attended the CPP’s
"10th Plenum" in 1992 where he saw Beltran; (2) he took part in criminal activities; and (3) the arms he and the other
CPP members used were purchased partly from contributions by Congressional members, like Beltran, who
represent party-list groups affiliated with the CPP.

The allegations in these affidavits are far from the proof needed to indict Beltran for taking part in an armed public
uprising against the government. What these documents prove, at best, is that Beltran was in Bucal, Padre Garcia,
Batangas on 20 February 2006 and that 14 years earlier, he was present during the 1992 CPP Plenum. None of the
affidavits stated that Beltran committed specific acts of promoting, maintaining, or heading a rebellion as found in
the DOJ Resolution of 27 February 2006. None of the affidavits alleged that Beltran is a leader of a rebellion.
Beltran’s alleged presence during the 1992 CPP Plenum does not automatically make him a leader of a rebellion.

In fact, Cachuela’s affidavit stated that Beltran attended the 1992 CPP Plenum as "Chairman, Kilusang Mayo Uno
(KMU)." Assuming that Beltran is a member of the CPP, which Beltran does not acknowledge, mere membership in
the CPP does not constitute rebellion.29 As for the alleged funding of the CPP’s military equipment from Beltran’s
congressional funds, Cachuela’s affidavit merely contained a general conclusion without any specific act showing
such funding. Cachuela merely alleged that "ang mga ibang mga pondo namin ay galing sa mga party list na
naihalal sa Kongreso tulad ng BAYAN MUNA – pimumunuan nila SATUR OCAMPO at CRISPIN BELTRAN, x x
x."30 Such a general conclusion does not establish probable cause.

In his Comment to Beltran’s petition, the Solicitor General points to Fuentes’ affidavit, dated 25 February 2006,31 as
basis for the finding of probable cause against Beltran as Fuentes provided details in his statement regarding
meetings Beltran and the other petitioners attended in 2005 and 2006 in which plans to overthrow violently the
Arroyo government were allegedly discussed, among others.
The claim is untenable. Fuentes’ affidavit was not part of the attachments the CIDG referred to the DOJ on 27
February 2006. Thus, the panel of inquest prosecutors did not have Fuentes’ affidavit in their possession when they
conducted the Rebellion inquest against Beltran on that day. Indeed, although this affidavit is dated 25 February
2006, the CIDG first presented it only during the preliminary investigation of the other petitioners on 13 March 2006
during which Fuentes subscribed to his statement before respondent prosecutor Velasco.

Respondent prosecutors later tried to remedy this fatal defect by motu proprio submitting to Branch 137 of the RTC
Makati Fuentes’ affidavit as part of their Comment to Beltran’s motion for judicial determination of probable cause.
Such belated submission, a tacit admission of the dearth of evidence against Beltran during the inquest, does not
improve the prosecution’s case. Assuming them to be true, what the allegations in Fuentes’ affidavit make out is a
case for Conspiracy to Commit Rebellion, punishable under Article 136 of the Revised Penal Code, not Rebellion
under Article 134. Attendance in meetings to discuss, among others, plans to bring down a government is a mere
preparatory step to commit the acts constituting Rebellion under Article 134. Even the prosecution acknowledged
this, since the felony charged in the Information against Beltran and San Juan in Criminal Case No. 06-452 is
Conspiracy to Commit Rebellion and not Rebellion. The Information merely alleged that Beltran, San Juan, and
others conspired to form a "tactical alliance" to commit Rebellion. Thus, the RTC Makati erred when it nevertheless
found probable cause to try Beltran for Rebellion based on the evidence before it.

The minutes32 of the 20 February 2006 alleged meeting in Batangas between members of MKP and CPP, including
Beltran, also do not detract from our finding. Nowhere in the minutes was Beltran implicated. While the minutes
1a\^/phi1.net

state that a certain "Cris" attended the alleged meeting, there is no other evidence on record indicating that "Cris" is
Beltran. San Juan, from whom the "flash drive" containing the so-called minutes was allegedly taken, denies
knowing Beltran.

To repeat, none of the affidavits alleges that Beltran is promoting, maintaining, or heading a Rebellion. The
Information in Criminal Case No. 06-452 itself does not make such allegation. Thus, even assuming that the
Information validly charges Beltran for taking part in a Rebellion, he is entitled to bail as a matter of right since there
is no allegation in the Information that he is a leader or promoter of the Rebellion.33 However, the Information in fact
merely charges Beltran for "conspiring and confederating" with others in forming a "tactical alliance" to commit
rebellion. As worded, the Information does not charge Beltran with Rebellion but with Conspiracy to Commit
Rebellion, a bailable offense.34

On the Ladlad and Maza Petitions

The Preliminary Investigation was Tainted

With Irregularities.

As in the determination of probable cause, this Court is similarly loath to enjoin the prosecution of offenses, a
practice rooted on public interest as the speedy closure of criminal investigations fosters public safety.35 However,
such relief in equity may be granted if, among others, the same is necessary (a) to prevent the use of the strong arm
of the law in an oppressive and vindictive manner36 or (b) to afford adequate protection to constitutional rights.37 The
case of the petitioners in G.R. Nos. 172070-72 and 172074-76 falls under these exceptions.

The procedure for preliminary investigation of offenses punishable by at least four years, two months and one day is
outlined in Section 3, Rule 112 of the Revised Rules of Criminal Procedure, thus:

Procedure.—The preliminary investigation shall be conducted in the following manner:

(a) The complaint shall state the address of the respondent and shall be accompanied by the affidavits of
the complainant and his witnesses, as well as other supporting documents to establish probable cause.
They shall be in such number of copies as there are respondents, plus two (2) copies for the official file. The
affidavits shall be subscribed and sworn to before any prosecutor or government official authorized to
administer oath, or, in their absence or unavailability, before a notary public, each of whom must certify that
he personally examined the affiants and that he is satisfied that they voluntarily executed and understood
their affidavits.
 (b) Within ten (10) days after the filing of the complaint, the investigating officer shall either dismiss it if he
finds no ground to continue with the investigation, or issue a subpoena to the respondent attaching to it a
copy of the complaint and its supporting affidavits and documents.

The respondent shall have the right to examine the evidence submitted by the complainant which he may
not have been furnished and to copy them at his expense. If the evidence is voluminous, the complainant
may be required to specify those which he intends to present against the respondent, and these shall be
made available for examination or copying by the respondent at his expense.

Objects as evidence need not be furnished a party but shall be made available for examination, copying, or
photographing at the expense of the requesting party.

(c) Within ten (10) days from receipt of the subpoena with the complaint and supporting affidavits and
documents, the respondent shall submit his counter-affidavit and that of his witnesses and other supporting
documents relied upon for his defense. The counter-affidavits shall be subscribed and sworn to and certified
as provided in paragraph (a) of this section, with copies thereof furnished by him to the complainant. The
respondent shall not be allowed to file a motion to dismiss in lieu of a counter-affidavit.

(d) If the respondent cannot be subpoenaed, or if subpoenaed, does not submit counter-affidavits within the
ten (10) day period, the investigating officer shall resolve the complaint based on the evidence presented by
the complainant.

(e) The investigating officer may set a hearing if there are facts and issues to be clarified from a party or a
witness. The parties can be present at the hearing but without the right to examine or cross-examine. They
may, however, submit to the investigating officer questions which may be asked to the party or witness
concerned.

The hearing shall be held within ten (10) days from submission of the counter-affidavits and other
documents or from the expiration of the period for their submission. It shall be terminated within five (5)
days.

(f) Within ten (10) days after the investigation, the investigating officer shall determine whether or not there is
sufficient ground to hold the respondent for trial. (Emphasis supplied)

Instead of following this procedure scrupulously, as what this Court had mandated in an earlier ruling, "so that the
constitutional right to liberty of a potential accused can be protected from any material damage,"38 respondent
prosecutors nonchalantly disregarded it. Respondent prosecutors failed to comply with Section 3(a) of Rule 112
which provides that the complaint (which, with its attachment, must be of such number as there are respondents) be
accompanied by the affidavits of the complainant and his witnesses, subscribed and sworn to before any prosecutor
or government official authorized to administer oath, or, in their absence or unavailability, before a notary public.
Respondent prosecutors treated the unsubscribed letters of Tanigue and Mendoza of the CIDG, PNP as
complaints39 and accepted the affidavits attached to the letters even though some of them were notarized by a
notary public without any showing that a prosecutor or qualified government official was unavailable as required by
Section 3(a) of Rule 112.

Further, Section 3(b) of Rule 112 mandates that the prosecutor, after receiving the complaint, must determine if
there are grounds to continue with the investigation. If there is none, he shall dismiss the case, otherwise he shall
"issue a subpoena to the respondents." Here, after receiving the CIDG letters, respondent prosecutors peremptorily
issued subpoenas to petitioners requiring them to appear at the DOJ office on 13 March 2006 "to secure copies of
the complaints and its attachments." During the investigation, respondent prosecutors allowed the CIDG to present
a masked Fuentes who subscribed to an affidavit before respondent prosecutor Velasco. Velasco proceeded to
distribute copies of Fuentes’ affidavit not to petitioners or their counsels but to members of the media who covered
the proceedings. Respondent prosecutors then required petitioners to submit their counter-affidavits in 10 days. It
was only four days later, on 17 March 2006, that petitioners received the complete copy of the attachments to the
CIDG letters.1a\^/phi1.net

These uncontroverted facts belie respondent prosecutors’ statement in the Order of 22 March 2006 that the
preliminary investigation "was done in accordance with the Revised Rules o[f] Criminal Procedure."40 Indeed, by
peremptorily issuing the subpoenas to petitioners, tolerating the complainant’s antics during the investigation, and
distributing copies of a witness’ affidavit to members of the media knowing that petitioners have not had the
opportunity to examine the charges against them, respondent prosecutors not only trivialized the investigation but
also lent credence to petitioners’ claim that the entire proceeding was a sham.

A preliminary investigation is the crucial sieve in the criminal justice system which spells for an individual the
difference between months if not years of agonizing trial and possibly jail term, on the one hand, and peace of mind
and liberty, on the other hand. Thus, we have characterized the right to a preliminary investigation as not "a mere
formal or technical right" but a "substantive" one, forming part of due process in criminal justice.41 This especially
holds true here where the offense charged is punishable by reclusion perpetua and may be non-bailable for those
accused as principals.

Contrary to the submission of the Solicitor General, respondent prosecutors’ filing of the Information against
petitioners on 21 April 2006 with Branch 57 of the RTC Makati does not moot the petitions in G.R. Nos. 172070-72
and 172074-76. Our power to enjoin prosecutions cannot be frustrated by the simple filing of the Information with the
trial court.
1a\^/phi 1.net

On Respondent Prosecutors’ Lack of Impartiality

We find merit in petitioners’ doubt on respondent prosecutors’ impartiality. Respondent Secretary of Justice, who
exercises supervision and control over the panel of prosecutors, stated in an interview on 13 March 2006, the day of
the preliminary investigation, that, "We [the DOJ] will just declare probable cause, then it’s up to the [C]ourt to
decide x x x."42 Petitioners raised this issue in their petition,43 but respondents never disputed the veracity of this
statement. This clearly shows pre-judgment, a determination to file the Information even in the absence of probable
cause.

A Final Word

The obvious involvement of political considerations in the actuations of respondent Secretary of Justice and
respondent prosecutors brings to mind an observation we made in another equally politically charged case. We
reiterate what we stated then, if only to emphasize the importance of maintaining the integrity of criminal
prosecutions in general and preliminary investigations in particular, thus:

[W]e cannot emphasize too strongly that prosecutors should not allow, and should avoid, giving the impression that
their noble office is being used or prostituted, wittingly or unwittingly, for political ends, or other purposes alien to, or
subversive of, the basic and fundamental objective of observing the interest of justice evenhandedly, without fear or
favor to any and all litigants alike, whether rich or poor, weak or strong, powerless or mighty. Only by strict
adherence to the established procedure may be public’s perception of the impartiality of the prosecutor be
enhanced.44 1a\^/phi1.net

WHEREFORE, we GRANT the petitions. In G.R. No. 175013, we SET ASIDE the Order dated 31 May 2006 of the
Regional Trial Court, Makati City, Branch 146 and the Order dated 29 August 2006 of the Regional Trial Court,
Makati City, Branch 150. In G.R. Nos. 172070-72 and 172074-76, we SET ASIDE the Orders dated 22 March 2006
and 4 April 2006 issued by respondent prosecutors. We ORDER the Regional Trial Court, Makati City, Branch 150
to DISMISS Criminal Case Nos. 06-452 and 06-944.

SO ORDERED.

ANTONIO T. CARPIO
Associate Justice

WE CONCUR:

LEONARDO A. QUISUMBING
Associate Justice
Chairperson
 CONCHITA CARPIO MORALES DANTE O. TINGA
Associate Justice Asscociate Justice

PRESBITERO J. VELASCO, JR.

Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision had been reached in consultation before the case was assigned
to the writer of the opinion of the Court’s Division.

LEONARDO A. QUISUMBING
Associate Justice
Chairperson

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairperson’s Attestation, I certify that the
conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of
the opinion of the Court’s Division.

REYNATO S. PUNO
Chief Justice

Footnotes

1 Beltran is also one of the petitioners in G.R. Nos. 172074-76.

2Beltran and Mariano represent Anakpawis; Virador, Casiño, and Ocampo represent Bayan Muna; and
Maza represents Gabriela.

3 Police Chief Inspector Rino V. Corpuz, Police Inspector Honesto Gaton, and SPO1 Arnold J. Casumpang.

4 Atty. Ben V. Dela Cruz.

5During the inquest and in a motion filed with the MeTC, Beltran protested his detention, invoking his
parliamentary immunity from arrest under Section 11, Article VI of the 1987 Constitution since Inciting to
Sedition is punishable with a maximum penalty of less than six years. Finding merit in Beltran’s motion, the
MeTC ordered Beltran’s release in its Order of 13 March 2006. This ruling was never implemented.

6Composed of Attys. Emmanuel Y. Velasco, Rosalina P. Aquino, Aileen Marie S. Gutierrez, Irwin A.
Maraya, and Maria Cristina P. Rilloraza.

7 Rollo (G.R. No. 175013), pp. 84-85; Annex "I." The Information reads in full:

That prior to February 24, 2006 and dates subsequent thereto, in Makati City and within the
jurisdiction of this Honorable Court (and other parts of the Philippines) the above named accused
1Lt. LAWRENCE SAN JUAN, being then a member of the Philippine Army, CRISPIN BELTRAN y
BERTIZ, duly elected member of the House of Representatives, together with several other
JOHN/JANE DOES whose present identities and whereabouts are presently unknown, conspiring
and confederating with each other, did then and there willfully, unlawfully and feloniously, form a
tactical alliance between the CPP/NPA, renamed as Partidong Komunista and Pilipinas (PKP) and
its armed regular members as Katipunan ng Anak ng Bayan (KAB) with the Makabayang Kawal ng
 Pilipinas (MKP) and thereby rise publicly and take up arms against the duly constituted government,
such as, but not limited to, conducting bombing activities and liquidation of military and police
personnel, for the purpose of removing allegiance from the Government or its laws, the territory of
the Republic of the Philippines or any part thereof, of any body of land, naval or armed forces, or
depriving the Chief Executive or the Legislature, wholly or partially, of any of their powers and
prerogatives and ultimately to overthrow President Gloria Macapagal Arroyo and the present duly
constituted Government.

8 Pending resolution of Beltran’s motion, the DOJ sought leave from Branch 137 to file an Amended
Information in Criminal Case No. 06-452, impleading additional 46 defendants, including the petitioners in
G.R. Nos. 172074-76 and 172070-72 and encompassing crimes committed since the 1960s. On petitioners’
motion, Branch 137 expunged the Amended Information for being an entirely new Information.

9 Rollo (G.R. No. 175013), p. 59; Annex "A." The Order of 31 May 2006 pertinently reads: "After examining
the record of this case, the Court finds probable cause to believe that accused 1st Lt. Lawrence San Juan,
P.A. and Crispin Beltran y Bertiz committed the crime charged. Let a commitment order be issued."

Composed of Attys. Emmanuel Y. Velasco, Joselita C. Mendoza, Aileen Marie S. Gutierrez, Irwin A.
10

Maraya, and Merba A. Waga.

11Rollo (G.R. Nos. 172074-76), pp. 99-102; Annexes "K" and "L." The President was quoted by a daily, thus:
"They [petitioners in the Maza petition] have committed a crime. They are committing a continuing crime.
And we have laws to deal with that. x x x." (The Philippine Star, 12 March 2006, p. 1). Respondent Gonzalez
was also reported to have said: "We will just declare probable cause, then it’s up to the Court to decide. x x
x." (The Philippine Star, 14 March 2006, p. 6)

12 Rollo (G.R. Nos. 172070-72), pp. 540-541; Annex "11."

13The Solicitor General claims that the petitioners in the Maza petition (except Beltran) are guilty of forum-
shopping for having filed with the Court of Appeals a petition for certiorari and prohibition (docketed as CA
G.R. SP No. 93975) "demanding the conduct of preliminary investigation." However, the records show that
the petition in CA G.R. SP No. 93975 sought the nullification of a DOJ Order, dated 1 March 2006,
apparently relating to the warrantless arrest of Maza, Ocampo, Casiño, Mariano, and Virador. Also, the
Court of Appeals considered CA G.R. SP No. 93975 "closed and terminated" in its Resolution of 28 June
2006.

14Section 7, Rule 112 provides: "When accused lawfully arrested without warrant.— When a person is
lawfully arrested without a warrant involving an offense which requires a preliminary investigation, the
complaint or information may be filed by a prosecutor without need of such investigation provided an inquest
has been conducted in accordance with existing Rules. In the absence or unavailability of an inquest
prosecutor, the complaint may be filed by the offended party or a peace officer directly with the proper court
on the basis of the affidavit of the offended party or arresting officer or person.

Before the complaint or information is filed, the person arrested may ask for a preliminary
investigation in accordance with this Rule, but he must sign a waiver of the provisions of Article 125
of the Revised Penal Code, as amended, in the presence of his counsel. Notwithstanding the waiver,
he may apply for bail and the investigation must be terminated within fifteen (15) days from its
inception.

After the filing of the complaint or information in court without a preliminary investigation, the
accused may, within five (5) days from the time he learns of its filing, ask for a preliminary
investigation with the same right to adduce evidence in his defense as provided in this Rule."
(Emphasis supplied)

Rollo (G.R. No. 175013), pp. 540-541; Annex "PP-1." Beltran’s arrest was later declared illegal by the
15

MeTC for violating Beltran’s parliamentary immunity from arrest under Section 11, Article VI of the
Constitution. It appears the prosecution did not appeal from this ruling.
 Beltran also claims that on the night of his arrest, his jailors showed him a warrant of arrest, dated 7
16

October 1985, issued by the Regional Trial Court of Quezon City, Branch 84, in connection with Criminal
Case No. Q-21905 for "inciting to rebellion" which had been archived in October 1985.

17Even under the rulings in Garcia-Padilla v. Enrile (No. L-61388, 20 April 1983, 121 SCRA 472 also
reported as Parong v. Enrile, 206 Phil. 392) and Umil v. Ramos (G.R. No. 81567, 9 July 1990, 187 SCRA
811) where the Court characterized Rebellion as a "continuing offense" thus allowing the warrantless arrest
of its perpetrators, Beltran’s inquest for Rebellion remains void as he was not arrested for committing such
felony.

18"Section 8. Initial Duty of the Inquest Officer.— The Inquest Officer must first determine if the arrest of the
detained person was made in accordance with the provisions of paragraphs (a) and (b) of Section 5, Rule
113 of the Revised Rules on Criminal Procedure, as amended, x x x."

19Larranaga v. Court of Appeals, 346 Phil. 241 (1997); Go v. Court of Appeals, G.R. No. 101837, 11
February 1992, 206 SCRA 138.

20 Cruz, Jr. v. People, G.R. No. 110436, 27 June 1994, 233 SCRA 439.

21 Acuña v. Deputy Ombudsman for Luzon, G.R. No. 144692, 31 January 2005, 450 SCRA 232.

22See Allado v. Diokno, G.R. No. 113630, 5 May 1994, 232 SCRA 192; Salonga v. Cruz-Paño, No. L-59524,
18 February 1985, 134 SCRA 438.

23 II L. B. Reyes, The Revised Penal Code 84 (14th ed., 1998).

24 People v. Lovedioro, 320 Phil. 481 (1995).

25 Including official receipts, publications, articles, inventories, and photocopies of ID pictures.

26 Rollo (G.R. No. 175013), pp. 690-693; Annex "PP-27."

27 Id., pp. 605-615; Annex "PP-14."

28The affidavits mainly concern the organization and recruitment of members of MKP, the aborted
participation of MKP members in a rally on 24 February 2006, and the criminal activities of CPP members.

See Buscayno v. Military Commissions Nos. 1, 2, 6 and 25, 196 Phil. 41 (1981); People v. Hernandez, 120
29

Phil. 191 (1964).

30 Rollo (G.R. No. 175013), p. 613.

31
Rollo (G.R. Nos. 172070-72), pp. 59-67; Annex "D."

32 Rollo (G.R. No. 175013), pp. 657-674; Annex "PP-18."

33 Article 135 of the Revised Penal Code pertinently provides:

"Any person who promotes, maintains, or heads a rebellion or insurrection shall suffer the penalty of
reclusion perpetua.

Any person merely participating or executing the commands of others in rebellion, insurrection or
coup d’etat shall suffer the penalty of reclusion temporal."

34Under Article 136 of the Revised Penal Code, Conspiracy to Commit Rebellion is punishable by prision
correccional in its maximum period and a fine which shall not exceed five thousand pesos (P5,000).
35 Hernandez v. Albano, 125 Phil. 513 (1967).

36 Dimayuga v. Fernandez, 43 Phil. 304 (1922).

37 Hernandez v. Albano, supra.

38 Webb v. De Leon, 317 Phil. 758 (1995).

39Defined under Section 3, Rule 110 of the Revised Rules of Criminal Procedure as "sworn written
statement charging a person with an offense, subscribed by the offended party, any peace officer, or other
public officer charged with the enforcement of the law violated." (Emphasis supplied)

40 Rollo (G.R. Nos. 172074-76), pp. 61-62; Annex "A."

41 Go v. Court of Appeals, supra note 19.

42 Rollo (G.R. No. 172074-76), p. 102.

43 Id., pp. 16-17.

44 Tatad v. Sandiganbayan, No. L-72335-39, 21 March 1988, 159 SCRA 70, 81.
 4. G.R. No. 164007 August 10, 2006

LT. (SG) EUGENE GONZALES, LT. (SG) ANDY TORRATO, LT. (SG) ANTONIO TRILLANES IV, CPT. GARY
ALEJANO, LT. (SG) JAMES LAYUG, CPT. GERARDO GAMBALA, CPT. NICANOR FAELDON, LT. (SG)
MANUEL CABOCHAN, ENS. ARMAND PONTEJOS, LT. (JG) ARTURO PASCUA, and 1LT. JONNEL
SANGGALANG, Petitioners,
vs.
GEN. NARCISO ABAYA, in his capacity as Chief of Staff of the Armed Forces of the Philippines, and B.
GEN. MARIANO M. SARMIENTO, JR., in his capacity as the Judge Advocate General of the Judge Advocate
General’s Office (JAGO), Respondents.

DECISION

SANDOVAL-GUTIERREZ, J.:

For our resolution is the Petition for Prohibition (with prayer for a temporary restraining order) filed by the above-
named members of the Armed Forces of the Philippines (AFP), herein petitioners, against the AFP Chief of Staff
and the Judge Advocate General, respondents.

The facts are:

On July 26, 2003, President Gloria Macapagal Arroyo received intelligence reports that some members of the AFP,
with high-powered weapons, had abandoned their designated places of assignment. Their aim was to destabilize
the government. The President then directed the AFP and the Philippine National Police (PNP) to track and arrest
them.

On July 27, 2003 at around 1:00 a.m., more than 300 heavily armed junior officers and enlisted men of the AFP –
mostly from the elite units of the Army’s Scout Rangers and the Navy’s Special Warfare Group – entered the
premises of the Oakwood Premier Luxury Apartments on Ayala Avenue, Makati City. They disarmed the security
guards and planted explosive devices around the building.

Led by Navy Lt. (SG) Antonio Trillanes IV, the troops sported red armbands emblazoned with the emblem of
the "Magdalo" faction of the Katipunan. 1 The troops then, through broadcast media, announced their grievances
against the administration of President Gloria Macapagal Arroyo, such as the graft and corruption in the military, the
illegal sale of arms and ammunition to the "enemies" of the State, and the bombings in Davao City intended to
acquire more military assistance from the US government. They declared their withdrawal of support from their
Commander-in-Chief and demanded that she resign as President of the Republic. They also called for the
resignation of her cabinet members and the top brass of the AFP and PNP.

About noontime of the same day, President Arroyo issued Proclamation No. 427 declaring a state of rebellion,
followed by General Order No. 4 directing the AFP and PNP to take all necessary measures to suppress the
rebellion then taking place in Makati City. She then called the soldiers to surrender their weapons at five o’clock in
the afternoon of that same day.

In order to avoid a bloody confrontation, the government sent negotiators to dialogue with the soldiers. The aim was
to persuade them to peacefully return to the fold of the law. After several hours of negotiation, the government panel
succeeded in convincing them to lay down their arms and defuse the explosives placed around the premises of the
Oakwood Apartments. Eventually, they returned to their barracks.

A total of 321 soldiers, including petitioners herein, surrendered to the authorities.

The National Bureau of Investigation (NBI) investigated the incident and recommended that the military personnel
involved be charged with coup d’etat defined and penalized under Article 134-A of the Revised Penal Code, as
amended. On July 31, 2003, the Chief State Prosecutor of the Department of Justice (DOJ) recommended the filing
of the corresponding Information against them.
Meanwhile, on August 2, 2003, pursuant to Article 70 of the Articles of War, respondent General Narciso Abaya,
then AFP Chief of Staff, ordered the arrest and detention of the soldiers involved in the Oakwood incident and
directed the AFP to conduct its own separate investigation.

On August 5, 2003, the DOJ filed with the Regional Trial Court (RTC), Makati City an Information for coup
d’etat 2 against those soldiers, docketed as Criminal Case No. 03-2784 and eventually raffled off to Branch 61,
presided by Judge Romeo F. Barza. 3 Subsequently, this case was consolidated with Criminal Case No. 03-2678,
involving the other accused, pending before Branch 148 of the RTC, Makati City, presided by Judge Oscar B.
Pimentel.

On August 13, 2003, the RTC directed the DOJ to conduct a reinvestigation of Criminal Case No. 03-2784.

On the same date, respondent Chief of Staff issued Letter Order No. 625 creating a Pre-Trial Investigation Panel
tasked to determine the propriety of filing with the military tribunal charges for violations of the Articles of War under
Commonwealth Act No. 408, 4 as amended, against the same military personnel. Specifically, the charges are: (a)
violation of Article 63 for disrespect toward the President, the Secretary of National Defense, etc., (b) violation of
Article 64 for disrespect toward a superior officer, (c) violation of Article 67 for mutiny or sedition, (d) violation of
Article 96 for conduct unbecoming an officer and a gentleman, and (e) violation of Article 97 for conduct prejudicial
to good order and military discipline.

Of the original 321 accused in Criminal Case No. 03-2784, only 243 (including petitioners herein) filed with the RTC,
Branch 148 an Omnibus Motion praying that the said trial court assume jurisdiction over all the charges filed with the
military tribunal. They invoked Republic Act (R.A.) No. 7055. 5

On September 15, 2003, petitioners filed with the Judge Advocate General’s Office (JAGO) a motion praying for the
suspension of its proceedings until after the RTC shall have resolved their motion to assume jurisdiction.

On October 29, 2003, the Pre-Trial Investigation Panel submitted its Initial Report to the AFP Chief of Staff
recommending that the military personnel involved in the Oakwood incident be charged before a general court
martial with violations of Articles 63, 64, 67, 96, and 97 of the Articles of War.

Meanwhile, on November 11, 2003, the DOJ, after conducting a reinvestigation, found probable cause against only
31 (petitioners included) of the 321 accused in Criminal Case No. 03-2784. Accordingly, the prosecution filed with
the RTC an Amended Information. 6

In an Order dated November 14, 2003, the RTC admitted the Amended Information and dropped the charge of coup
d’etat against the 290 accused.

Subsequently, or on December 12, 2003, the Pre-Trial Investigation Panel submitted its Final Pre-Trial Investigation
Report 7 to the JAGO, recommending that, following the "doctrine of absorption," those charged with coup
d’etat before the RTCshould not be charged before the military tribunal for violation of the Articles of War.

For its part, the RTC, on February 11, 2004, issued an Order 8 stating that "all charges before the court martial
against the accused…are hereby declared not service-connected, but rather absorbed and in furtherance of the
alleged crime of coup d’etat." The trial court then proceeded to hear petitioners’ applications for bail.

In the meantime, Colonel Julius A. Magno, in his capacity as officer-in-charge of the JAGO, reviewed the findings of
the Pre-Trial Investigation Panel. He recommended that 29 of the officers involved in the Oakwood incident,
including petitioners, be prosecuted before a general court martial for violation of Article 96 (conduct unbecoming an
officer and a gentleman) of the Articles of War.

On June 17, 2004, Colonel Magno’s recommendation was approved by the AFP top brass. The AFP Judge
Advocate General then directed petitioners to submit their answer to the charge. Instead of complying, they filed
with this Court the instant Petition for Prohibition praying that respondents be ordered to desist from charging them
with violation of Article 96 of the Articles of War in relation to the Oakwood incident. 9
Petitioners maintain that since the RTC has made a determination in its Order of February 11, 2004 that the offense
for violation of Article 96 (conduct unbecoming an officer and a gentleman) of the Articles of War is not service-
connected, but is absorbed in the crime of coup d’etat, the military tribunal cannot compel them to submit to its
jurisdiction.

The Solicitor General, representing the respondents, counters that R.A. No. 7055 specifies which offenses covered
by the Articles of War areservice-connected. These are violations of Articles 54 to 70, 72 to 92, and 95 to 97. The
law provides that violations of these Articles are properly cognizable by the court martial. As the charge against
petitioners is violation of Article 96 which, under R.A. No. 7055 is a service-connected offense, then it falls under the
jurisdiction of the court martial.

Subsequently, petitioners filed with this Court a Supplemental Petition raising the additional issue that the offense
charged before the General Court Martial has prescribed. Petitioners alleged therein that during the pendency of
their original petition, respondents proceeded with the Pre-Trial Investigation for purposes of charging them with
violation of Article 96 (conduct unbecoming an officer and a gentleman) of the Articles of War; that the Pre-Trial
Investigation Panel then referred the case to the General Court Martial; that "almost two years since the Oakwood
incident on July 27, 2003, only petitioner Lt. (SG) Antonio Trillanes was arraigned, and this was done under
questionable circumstances;" 10 that in the hearing of July 26, 2005, herein petitioners moved for the dismissal of the
case on the ground that they were not arraigned within the prescribed period of two (2) years from the date of the
commission of the alleged offense, in violation of Article 38 of the Articles of War; 11 that "the offense charged
prescribed on July 25, 2005;" 12 that the General Court Martial ruled, however, that "the prescriptive period shall end
only at 12:00 midnight of July 26, 2005;" 13 that "(a)s midnight of July 26, 2005 was approaching and it was
becoming apparent that the accused could not be arraigned, the prosecution suddenly changed its position and
asserted that 23 of the accused have already been arraigned;" 14 and that petitioners moved for a reconsideration
but it was denied by the general court martial in its Order dated September 14, 2005. 15

In his Comment, the Solicitor General prays that the Supplemental Petition be denied for lack of merit. He alleges
that "contrary to petitioners’ pretensions, all the accused were duly arraigned on July 13 and 18, 2005." 16 The
"(r)ecords show that in the hearing on July 13, 2005, all the 29 accused were present" and, "(o)n that day, Military
Prosecutor Captain Karen Ong Jags read the Charges and Specifications from the Charge Sheet in open court (pp.
64, TSN, July 13, 2005)." 17

The sole question for our resolution is whether the petitioners are entitled to the writ of prohibition.

There is no dispute that petitioners, being officers of the AFP, are subject to military law. Pursuant to Article 1 (a) of
Commonwealth Act No. 408, as amended, otherwise known as the Articles of War, the term "officer" is "construed to
refer to a commissioned officer." Article 2 provides:

Art. 2. Persons Subject to Military Law. – The following persons are subject to these articles and shall be understood
as included in the term "any person subject to military law" or "persons subject to military law," whenever used in
these articles:

(a) All officers and soldiers in the active service of the Armed Forces of the Philippines or of the Philippine
Constabulary, all members of the reserve force, from the dates of their call to active duty and while on such active
duty; all trainees undergoing military instructions; and all other persons lawfully called, drafted, or ordered into, or to
duty or for training in the said service, from the dates they are required by the terms of the call, draft, or order to
obey the same.

Upon the other hand, Section 1 of R.A. No. 7055 reads:

SEC. 1. Members of the Armed Forces of the Philippines and other persons subject to military law, including
members of the Citizens Armed Forces Geographical Units, who commit crimes or offenses penalized under the
Revised Penal Code, other special penal laws, or local government ordinances, regardless of whether or not
civilians are co-accused, victims, or offended parties, which may be natural or juridical persons, shall be tried by the
proper civil court, except when the offense, as determined before arraignment by the civil court, is service-
connected, in which case, the offense shall be tried by court-martial, Provided, That the President of the Philippines
may, in the interest of justice, order or direct at any time before arraignment that any such crimes or offenses be
tried by the proper civil courts.
As used in this Section, service-connected crimes or offenses shall be limited to those defined in Articles 54 to 70,
Articles 72 to 92, and Articles 95 to 97 of Commonwealth Act No. 408, as amended.

In imposing the penalty for such crimes or offenses, the court-martial may take into consideration the penalty
prescribed therefor in the Revised Penal Code, other special laws, or local government ordinances.

Section 1 of R.A. No. 7055, quoted above, is clear and unambiguous. First, it lays down the general rule that
members of the AFP and other persons subject to military law, including members of the Citizens Armed Forces
Geographical Units, who commit crimes or offenses penalized under the Revised Penal Code (like coup d’etat),
other special penal laws, or local ordinances shall be tried by the proper civil court. Next, it provides the exception to
the general rule, i.e., where the civil court, before arraignment, has determined the offense to be service-connected,
then the offending soldier shall be tried by a court martial. Lastly, the law states an exception to the exception, i.e.,
where the President of the Philippines, in the interest of justice, directs before arraignment that any such crimes or
offenses be tried by the proper civil court.

The second paragraph of the same provision further identifies the "service-connected crimes or offenses" as
"limited to those defined in Articles 54 to 70, Articles 72 to 92, and Articles 95 to 97" of the Articles of War.
Violations of these specified Articles are triable by court martial. This delineates the jurisdiction between the civil
courts and the court martial over crimes or offenses committed by military personnel.

Such delineation of jurisdiction by R.A. No. 7055 is necessary to preserve the peculiar nature of military justice
system over military personnel charged with service-connected offenses. The military justice system is disciplinary
in nature, aimed at achieving the highest form of discipline in order to ensure the highest degree of military
efficiency. 18 Military law is established not merely to enforce discipline in times of war, but also to preserve the
tranquility and security of the State in time of peace; for there is nothing more dangerous to the public peace and
safety than a licentious and undisciplined military body. 19 The administration of military justice has been universally
practiced. Since time immemorial, all the armies in almost all countries of the world look upon the power of military
law and its administration as the most effective means of enforcing discipline. For this reason, the court martial has
become invariably an indispensable part of any organized armed forces, it being the most potent agency in
enforcing discipline both in peace and in war. 20

Here, petitioners are charged for violation of Article 96 (conduct unbecoming an officer and a gentleman) of the
Articles of War before the court martial, thus:

All persons subject to military law, did on or about 27 July 2003 at Oakwood Hotel, Makati City, Metro Manila,
willfully, unlawfully and feloniously violate their solemn oath as officers to defend the Constitution, the law and
the duly-constituted authorities and abused their constitutional duty to protect the people and the State by,
among others, attempting to oust the incumbent duly-elected and legitimate President by force and violence,
seriously disturbing the peace and tranquility of the people and the nation they are sworn to protect, thereby
causing dishonor and disrespect to the military profession, conduct unbecoming an officer and a
gentleman, in violation of AW 96 of the Articles of War.

CONTRARY TO LAW. (Underscoring ours)

Article 96 of the Articles of War 21 provides:

ART. 96. Conduct Unbecoming an Officer and Gentleman. – Any officer, member of the Nurse Corps, cadet, flying
cadet, or probationary second lieutenant, who is convicted of conduct unbecoming an officer and a gentleman shall
be dismissed from the service. (Underscoring ours)

We hold that the offense for violation of Article 96 of the Articles of War is service-connected. This is expressly
provided in Section 1 (second paragraph) of R.A. No. 7055. It bears stressing that the charge against the petitioners
concerns the alleged violation of their solemn oath as officers to defend the Constitution and the duly-constituted
authorities.Such violation allegedly caused dishonor and disrespect to the military profession. In short, the
charge has a bearing on their professional conduct or behavior as military officers. Equally indicative of the
"service-connected" nature of the offense is the penalty prescribed for the same – dismissal from the service
– imposable only by the military court.Such penalty is purely disciplinary in character, evidently intended to
cleanse the military profession of misfits and to preserve the stringent standard of military discipline.
Obviously, there is no merit in petitioners’ argument that they can no longer be charged before the court martial for
violation of Article 96 of the Articles of War because the same has been declared by the RTC in its Order of
February 11, 2004 as "not service-connected, but rather absorbed and in furtherance of the alleged crime of coup
d’etat," hence, triable by said court (RTC). The RTC, in making such declaration, practically amended the law which
expressly vests in the court martial the jurisdiction over "service-connected crimes or offenses." What the law has
conferred the court should not take away. It is only the Constitution or the law that bestows jurisdiction on the court,
tribunal, body or officer over the subject matter or nature of an action which can do so. 22 And it is only through a
constitutional amendment or legislative enactment that such act can be done. The first and fundamental duty of the
courts is merely to apply the law "as they find it, not as they like it to be." 23 Evidently, such declaration by the RTC
constitutes grave abuse of discretion tantamount to lack or excess of jurisdiction and is, therefore, void.

In Navales v. Abaya., 24 this Court, through Mr. Justice Romeo J. Callejo, Sr., held:

We agree with the respondents that the sweeping declaration made by the RTC (Branch 148) in the dispositive
portion of its Order dated February 11, 2004 that all charges before the court-martial against the accused were not
service-connected, but absorbed and in furtherance of the crime of coup d’etat, cannot be given effect. x x x, such
declaration was made without or in excess of jurisdiction; hence, a nullity.

The second paragraph of the above provision (referring to Section 1 of R.A. No. 7055) explicitly specifies what are
considered "service-connected crimes or offenses" under Commonwealth Act No. 408, as amended, also known as
the Articles of War, to wit:

Articles 54 to 70:

Art. 54. Fraudulent Enlistment.

Art. 55. Officer Making Unlawful Enlistment.

Art. 56. False Muster.

Art. 57. False Returns.

Art. 58. Certain Acts to Constitute Desertion.

Art. 59. Desertion.

Art. 60. Advising or Aiding Another to Desert.

Art. 61. Entertaining a Deserter.

Art. 62. Absence Without Leave.

Art. 63. Disrespect Toward the President, Vice-President,

Congress of the Philippines, or Secretary of National

Defense.

Art. 64. Disrespect Toward Superior Officer.

Art. 65. Assaulting or Willfully Disobeying Superior Officer.

Art. 66. Insubordinate Conduct Toward Non-Commissioned Officer.

Art. 67. Mutiny or Sedition.

Art. 68. Failure to Suppress Mutiny or Sedition.

Art. 69. Quarrels; Frays; Disorders.

Art. 70. Arrest or Confinement.

Articles 72 to 92:

Art. 72. Refusal to Receive and Keep Prisoners.

Art. 73. Report of Prisoners Received.

Art. 74. Releasing Prisoner Without Authority.

Art. 75. Delivery of Offenders to Civil Authorities.

Art. 76. Misbehavior Before the Enemy.

Art. 77. Subordinates Compelling Commander to Surrender.

Art. 78. Improper Use of Countersign.

Art. 79. Forcing a Safeguard.

Art. 80. Captured Property to be Secured for Public Service.

Art. 81. Dealing in Captured or Abandoned Property.

Art. 82. Relieving, Corresponding With, or Aiding the Enemy.

Art. 83. Spies.

Art. 84. Military Property.–Willful or Negligent Loss, Damage

or wrongful Disposition.

Art. 85. Waste or Unlawful Disposition of Military Property

Issued to Soldiers.

Art. 86. Drunk on Duty.

Art. 87. Misbehavior of Sentinel.

Art. 88. Personal Interest in Sale of Provisions.

Art. 88-A. Unlawful Influencing Action of Court.

Art. 89. Intimidation of Persons Bringing Provisions.

Art. 90. Good Order to be Maintained and Wrongs Redressed.

Art. 91. Provoking Speeches or Gestures.

Art. 92. Dueling.

Articles 95 to 97:

Art. 95. Frauds Against the Government.

Art. 96. Conduct Unbecoming an Officer and Gentleman.

Art. 97. General Article.

Further, Section 1 of Rep. Act No. 7055 vests on the military courts the jurisdiction over the foregoing offenses. x x
x.

It is clear from the foregoing that Rep. Act No. 7055 did not divest the military courts of jurisdiction to try cases
involving violations of Articles 54 to 70, Articles 72 to 92, and Articles 95 to 97 of the Articles of War as these are
considered "service-connected crimes or offenses." In fact, it mandates that these shall be tried by the court-martial.

Moreover, the observation made by Mr. Justice Antonio T. Carpio during the deliberation of this case is worth
quoting, thus:

The trial court aggravated its error when it justified its ruling by holding that the charge of Conduct Unbecoming an
Officer and a Gentleman is ‘absorbed and in furtherance to the alleged crime of coup d’etat.’ Firstly, the doctrine of
‘absorption of crimes’ is peculiar to criminal law and generally applies to crimes punished by the same
statute, 25 unlike here where different statutes are involved. Secondly, the doctrine applies only if the trial court has
jurisdiction over both offenses. Here, Section 1 of R.A. 7055 deprives civil courts of jurisdiction over service-
connected offenses, including Article 96 of the Articles of War. Thus, the doctrine of absorption of crimes is not
applicable to this case.

Military law is sui generis (Calley v. Callaway, 519 F.2d 184 [1975]), applicable only to military personnel because
the military constitutes an armed organization requiring a system of discipline separate from that of civilians (see
Orloff v. Willoughby, 345 U.S. 83 [1953]). Military personnel carry high-powered arms and other lethal weapons not
allowed to civilians. History, experience, and the nature of a military organization dictate that military personnel must
be subjected to a separate disciplinary system not applicable to unarmed civilians or unarmed government
personnel.

A civilian government employee reassigned to another place by his superior may question his reassignment by
asking a temporary restraining order or injunction from a civil court. However, a soldier cannot go to a civil court and
ask for a restraining or injunction if his military commander reassigns him to another area of military operations. If
this is allowed, military discipline will collapse.

xxx

This Court has recognized that courts-martial are instrumentalities of the Executive to enable the President, as
Commander-in-Chief, to effectively command, control, and discipline the armed forces (see Ruffy v. Chief of Staff,
75 Phil. 875 [1946], citing Winthrop’s Military Law and Precedents, 2nd edition, p. 49). In short, courts-martial form
part of the disciplinary system that ensures the President’s control, and thus civilian supremacy, over the military. At
the apex of this disciplinary system is the President who exercises review powers over decisions of courts-martial
(citing Article 50 of the Articles of War; quoted provisions omitted).

xxx

While the Court had intervened before in courts-martial or similar proceedings, it did so sparingly and only to release
a military personnel illegally detained (Ognir v. Director of Prisons, 80 Phil. 401 [1948] or to correct objectionable
procedures (Yamashita v. Styer, 75 Phil. 563 [1945]). The Court has never suppressed court-martial proceedings on
the ground that the offense charged ‘is absorbed and in furtherance of’ another criminal charge pending with the civil
courts. The Court may now do so only if the offense charged is not one of the service-connected offenses specified
in Section 1 of RA 7055. Such is not the situation in the present case.
With respect to the issue of prescription raised by petitioners in their Supplemental Petition, suffice it to say that we
cannot entertain the same. The contending parties are at loggerheads as to (a) who among the petitioners were
actually arraigned, and (b) the dates of their arraignment. These are matters involving questions of fact, not within
our power of review, as we are not a trier of facts. In a petition for prohibition, such as the one at bar, only legal
issues affecting the jurisdiction of the tribunal, board or officer involved may be resolved on the basis of the
undisputed facts. 26

Clearly, the instant petition for prohibition must fail. The office of prohibition is to prevent the unlawful and
oppressive exercise of authority and is directed against proceedings that are done without or in excess of
jurisdiction, or with grave abuse of discretion, there being no appeal or other plain, speedy, and adequate remedy in
the ordinary course of law. 27 Stated differently, prohibition is the remedy to prevent inferior courts, corporations,
boards, or persons from usurping or exercising a jurisdiction or power with which they have not been vested by
law. 28

In fine, this Court holds that herein respondents have the authority in convening a court martial and in charging
petitioners with violation of Article 96 of the Articles of War.

WHEREFORE, the instant petition for prohibition is DISMISSED.

SO ORDERED.

ANGELINA SANDOVAL-GUTIERREZ

Associate Justice

WE CONCUR:

ARTEMIO V. PANGANIBAN

Chief Justice
REYNATO S. PUNO LEONARDO A. QUISUMBING
Associate Justice Associate Justice

CONSUELO YNARES-SANTIAGO ANTONIO T. CARPIO

Associate Justice Associate Justice

MA. ALICIA AUSTRIA-MARTINEZ ENATO C. CORONA

Associate Justice Associate Justice

CONCHITA CARPIO MORALES ROMEO J. CALLEJO, SR.

Associate Justice Associate Justice

ADOLFO S. AZCUNA DANTE O. TINGA

Associate Justice Associate Justice

MINITA V. CHICO-NAZARIO CANCIO C. GARCIA

Associate Justice Associate Justice

PRESBITERO J. VELASCO, JR.

Associate Justice

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the conclusions in the above
Decision were reached in consultation before the case was assigned to the writer of the opinion of the Court.
ARTEMIO V. PANGANIBAN

Chief Justice

Footnotes

1 A group which spearheaded the Revolution of 1896 against Spain.

2 As defined and penalized under Article 134-A of the Revised Penal Code, as amended.

3 Now Associate Justice of the Court of Appeals.

4Entitled "An Act for Making Further and More Effectual Provision for the National Defense by Establishing a
System of Military Justice for Persons Subject to Military Law."

5Entitled "An Act Strengthening Civilian Supremacy Over The Military By Returning To The Civil Courts The
Jurisdiction Over Certain Offenses Involving Members Of The Armed Forces Of The Philippines, Other
Persons Subject To Military Law, And The Members Of The Philippine National Police, Repealing For The
Purpose Certain Presidential Decrees."

6 Rollo, pp. 176-179.

7 Id., pp. 370-380.

8 Id., pp. 207-209.

9 Id., pp. 14-15.

10 Par. 4, Supplemental Petition, p. 4.

11 Article 38 of the Articles of War partly provides:

"Article 38. As to Time. – Except for desertion or murder committed in time of war, or for mutiny, no person
subject to military law shall be liable to be tried or punished by a court-martial for any crime or offense
committed more than two years before the arraignment of such person: x x x."

12 Pars. 8, 18, Supplemental Petition, pp. 5, 10.

13 Par. 9, id.

14Par. 10, id. Petitioners stated, under this footnote, that the "(r)ulings before the General Court Martial were
done orally; unavailability of the TSN for the July 26, 2005 hearing."

15 Par. 14, id.

16 Comment, p. 10.

17 Id., p. 18.

18 Gloria, PHILIPPINE MILITARY LAW Annotated, revised edition, p. 3.

19 Id.
 20 Id., pp. 4-5.

21 Commonwealth Act No. 408, as amended by Republic Act No. 242 (approved on June 12, 1948).

Arnado v.Buban, A.M. No. MTJ-04-1543, May 31, 2004, 430 SCRA 382, 386; Republic v. Estipular, G.R.
22

No. 136588, July 20, 2000, 336 SCRA 333, 340.

23 Resins, Inc. v. Auditor General, G.R. No. 17888, October 29, 1968, 25 SCRA 754.

24 G.R. Nos. 162318 and 162341, October 25, 2004, 441 SCRA 393, 409-421.

E.g., Murder (Article 248) and Robbery (Articles 294-295) absorbed by Rebellion (Article 134) of the
25

Revised Penal Code (People v. Hernandez, 99 Phil. 515 [1956]; Illegal Possession of Marijuana (Section 8,
Republic Act No. 6425) absorbed by Illegal Sale of Marijuana (Section 4, Republic Act No. 6425) (People v.
De Jesus, 229 Phil. 518 [1986]).

26 Mafinco Trading Corp. v. Ople, No. L-37790, March 25, 1976, 70 SCRA 139, 160-161.

Section 2, Rule 65 of the 1997 Rules of Civil Procedure, as amended; Vergara v. Rugue, No. L-32984,
27

August 26, 1977, 78 SCRA 312.

Matuguina Integrated Wood Products, Inc. v. Court of Appeals, G.R. No. 98310, October 24, 1996, 263
28

SCRA 490.

The Lawphil Project - Arellano Law Foundation

Agenda of August 8, 2006

Item No. 67

G.R. No. 164007 – (LT. [SG] EUGENE GONZALES, LT. [SG] ANDY TORRATO, LT. [SG] ANTONIO TRILLANES
IV, CPT. GARY ALEJANO, LT. [SG] JAMES LAYUG, CPT. NICANOR FAELDON, LT. [SG] MANUEL CABOCHAN,
ENS. ARMAND PONTEJOS, LT. [JG] ARTURO PASCUA, ET AL. v. GEN. NARCISO ABAYA, in his capacity as the
Chief-of-Staff of the ARMED FORCES OF THE PHILIPPINES, and BRIG. GEN. MARIANO M. SARMIENTO, JR., in
his capacity as the Judge Advocate General of the Judge Advocate General Office [JAGO])

Promulgated:

August 10, 2006

CONCURRING OPINION

CALLEJO, SR., J.:

I concur with the encompassing ponencia of Madame Justice Angelina Sandoval-Gutierrez ordering the dismissal of
the petition. However, I find it necessary to elucidate on my opinion relative to the submission of petitioners that the
punitive act for conduct unbecoming an officer and a gentleman defined in Article 96 of the Articles of War is
absorbed by coup d’etat, a political felony, especially in light of the opinion of the Pre-Trial Investigation Panel that
the punitive act as well as these service-connected punitive acts defined in Articles 63, 64, 96 and 97 of the Articles
of War, are indeed absorbed by coup d’etat.

The charge against petitioners reads:

 Violation of Article 96

All persons subject to military law, did on or about 27 July 2003 at Oakwood Hotel, Makati City, Makati, Metro
Manila, willfully, unlawfully and feloniously violate their solemn oath as officers to defend the Constitution, the law
and the duly-constituted authorities and abuse their constitutional duty to protect the people and the State by,
among others, attempting to oust the incumbent duly-elected and legitimate president by force and violence,
seriously disturbing the peace and tranquility of the people and the nation they are sworn to protect, thereby causing
dishonor and disrespect to the military profession, conduct unbecoming an officer and a gentleman, in violation of
AW 96 of the Articles of War.

CONTRARY TO LAW.

Article 96 of the Articles of War defines the punitive act of conduct unbecoming an officer and a gentleman as
follows:

Art. 96. Conduct Unbecoming an Officer and Gentleman. – Any officer, cadet, flying cadet, or probationary second
lieutenant, who is convicted of conduct unbecoming an officer and a gentleman shall be dismissed from the service.

Case law has it that common crimes committed in furtherance of a political crime, such as rebellion, are therein
absorbed. A political crime is one directly aimed against the political order as well as such common crimes as may
be committed to achieve a political purpose. The decisive factor is the intent or motive. Coup d’etat is a political
crime because the purpose of the plotters is to seize or diminish State power. If a crime usually regarded as
common, like murder, is perpetrated to achieve a political purpose, then said common crime is stripped of its
common complexion, inasmuch as, being part and parcel of the crime of rebellion, the former acquires the political
character of the latter. 1 Such common offenses assume the political complexion of the main crime of which they are
mere ingredients, and, consequently, cannot be punished separately from the principal offense, or complexed with
the same to justify the imposition of the graver penalty. 2

In Ponce Enrile v. Amin, 3 the court ruled that the principle of absorption of common crimes by the political crime
applies to crimes defined and penalized by special laws, such as Presidential Decree No. 1829, otherwise known as
Obstruction of Justice. However, in Baylosis v. Chavez,
Jr., 4 the Court ruled that the rulings of this Court in People v. Hernandez, 5 Ponce Enrile v. Amin 6 and Enrile v.
Salazar, 7 do not apply to crimes which, by statutory fiat, are sui generis.

Indeed, the service-connected punitive acts defined and penalized under the Articles of War are sui generis
offenses not absorbed by rebellion perpetrated, inter alia, by the officers and enlisted personnel of the Armed
Forces of the Philippines (AFP) or coup d’etat. This is so because such acts or omissions are merely violations of
military discipline, designed to secure a higher efficiency in the military service; in other words, they are purely
disciplinary in their nature, and have exclusive regard to the special character and relation of the AFP officers and
enlisted personnel. Laws providing for the discipline as well as the organization of the AFP are essential to the
efficiency for the military service in case their services should ever be required. "Deprive the executive branch of the
government of the power to enforce proper military regulations by fine and imprisonment, and that, too, by its own
courts-martial, which from time immemorial have exercised this right, and we at once paralyze all efforts to secure
proper discipline in the military service, and have little left but a voluntary organization, without cohesive force." 8

It bears stressing that for determining how best the AFP shall attend to the business of fighting or preparing to fight
rests with Congress and with the President. Both Congress and this Court have found that the special character of
the military requires civilian authorities to accord military commanders some flexibility in dealing with matters that
affect internal discipline and morale. In construing a statute that touches on such matters, therefore, courts must be
careful not to circumscribe the authority of military commanders to an extent never intended by Congress. Under
these and many similar cases reviewing legislative and executive control of the military, the sentencing scheme at
issue in this case, and the manner in which it was created, are constitutionally unassailable. 9

Officers and enlisted personnel committing punitive acts under the Articles of War may be prosecuted and convicted
if found guilty of such acts independently of, and separately from, any charges filed in the civilian courts for the
same or similar acts which are penalized under the Revised Penal Code, under special penal laws or ordinances;
and prescinding from the outcome thereof.
At this point, it is well to have a basic understanding of the Articles of War under Commonwealth Act No. 408, which
was essentially copied from that of the United States, which, in turn, had been superseded by the Uniform Code of
Military Justice. Our Articles of War has since been amended by Republic Act Nos. 242 and 516.

The Articles of War is the organic law of the AFP and, in keeping with the history of military law, its primary function
is to enforce "the highest form of discipline in order to ensure the highest degree of military efficiency." The following
commentary is enlightening:

History points out the fact that nations have always engaged in wars. For that purpose, bodies of men have been
organized into armed forces under a commander-in-chief who, through his subordinate commanders, enforces the
highest form of discipline in order to ensure the highest degree of military efficiency.

Victory in battle is the ultimate aim of every military commander, and he knows that victory cannot be attained, no
matter how superior his forces may be, in men and materials, if discipline among the rank-and-file is found wanting.
For, "if an Army is to be anything but an uncontrolled mob, discipline is required and must be enforced." For this
reason, in order to set an effective means of enforcing discipline, all organized armies of the world have
promulgated sets of rules and regulations and later, laws as embodied in the articles of war, which define the duties
of military personnel and distinguish infractions of military law and impose appropriate punishment for violation
thereof. 10

Every officer, before he enters in the duties of his office, subscribes to these articles and places himself within the
powers of courts-martial to pass on any offense which he may have committed in contravention thereof. 11

It is said that conduct unbecoming an officer and a gentleman is a uniquely military offense. 12 In order to constitute
the said offense, the misconduct must offend so seriously against the law, justice, morality or decorum as to expose
to disgrace, socially or as a man, the offender, and at the same time must be of such a nature or committed under
such circumstances as to bring dishonor or disrepute upon the military profession which he represents. 13 The article
proscribing conduct unbecoming an officer and a gentleman has been held to be wholly independent of other
definitions of offenses, and the same course of conduct may constitute an offense elsewhere provided for and may
also warrant a conviction under this provision; it is not subject to preemption by other punitive articles. 14

The administration of military justice under the Articles of War has been exclusively vested in courts-martial whether
as General Courts-Martial, Special Courts-Martial or Summary Courts-Martial. 15 Courts-martial pertain to the
executive department and are, in fact, simply instrumentalities of the executive power, provided by Congress for the
President as Commander-in-Chief to aid him in properly commanding the army and navy, and enforcing discipline
therein. 16

As enunciated by the United States Supreme Court, "the military is, by necessity, a specialized society separate
from civilian society. It has, again by necessity, developed laws and traditions of its own during its long history. The
differences between the military and civilian communities result from the fact that it is the primary business of armies
and navies to fight or ready to fight wars should the occasion arise." 17 Further, the US Supreme Court quite
succinctly stated that "the military constitutes a specialized community governed by a separate discipline from that
of the civilian." 18

I wish to emphasize, however, a caveat: not all service-connected punitive acts under the Articles of War may be
prosecuted before the courts-martial independently of a crime defined and penalized under the Revised Penal Code
against the same accused based on the same set of delictual acts. Congress may criminalize a service-connected
punitive offense under the Articles of War.

A review of the deliberations in the Senate or the Report of the Conference Committee of Senate Bill 1500 will
readily show that coup d’etat was incorporated in the Revised Penal Code in Article 134-A precisely to criminalize
"mutiny" under Article 67 of the Articles of War and to penalize the punitive act of mutiny, under the Articles of War
as coup d’etat. Article 67 of the Articles of War reads:

Art. 67. Mutiny or Sedition. – Any person subject to military law who attempts to create or who begins, excites,
causes, or joins in any mutiny or sedition in any company, party, post, camp, detachment, guard, or other command
shall suffer death or such other punishment as a court-martial may direct.
Without Article 134-A in the Revised Penal Code, the mutineers would be charged for mutiny under Article 67 of the
Articles of War:

Senator Lina. Yes, Mr. President.

Senator Enrile. Then we added Article 134-A which deals with the new crime of coup d’etat.

Senator Enrile. – and we defined how this newly characterized and defined crime would be committed in Article 134-
A?

Senator Lina. Yes, Mr. President.

Senator Enrile. And, in fact, we made a distinction between the penalty of the crimes defined under Article 134 of
the Revised Penal Code and the crime defined under Article 134-A, is this correct, Mr. President?

Senator Lina. Yes, Mr. President.

Senator Enrile. In fact, we distinguished between the conspiracy and proposal to commit the crime of rebellion from
the conspiracy and proposal to commit coup d’ etat?

Senator Lina. Yes, Mr. President.

Senator Enrile. So that, for all intents and purposes, therefore, we are defining a new crime under this proposed
measure—

Senator Lina. Yes, Mr. President.

Senator Enrile.—which is coup d’etat. We are, in effect, bringing into the Revised Penal Code, a crime that was
penalized under the Articles of War as far as military participants are concerned and call it with its name "coup
d’etat"?

Senator Lina. Yes, Mr. President. That is the . . .

Senator Enrile. Because without this criminalization of coup d’etat under the Revised Penal Code, people in the
active service would be charged with mutiny?

Senator Lina. Yes, Mr. President. Especially when they are inside the camp, when the rank-and-file go up to arms or
insubordination or against the orders of their superiors, they would be charged under the Articles of War.

Senator Enrile. In fact, one of the distinguishing features of a coup d’etat as defined here is, apart from the overt
acts of taking a swift attack with violence, intimidation, threat, strategy, or stealth against the duly-constituted
authorities or an installation, et cetera, the primary ingredient of this would be the seizure or diminution of state
power.

Senator Lina. Yes, that is the objective, Mr. President.

Senator Enrile. On the other hand, in the case of rebellion as defined under Article 134, it does not necessarily
mean a seizure of State power or diminution of State power, but all that is needed would be to deprive the Chief
Executive or the legislature of any of its powers.

Senator Lina. That is correct, Mr. President.

Senator Enrile. So that, there is a basis to consider a clear and definable distinction between the crime of coup
d’etat and the crime of rebellion as defined under Article 135?

Senator Lina. Yes, Mr. President.

Senator Enrile. I just want to put that into the Record.

Thus, officers and enlisted personnel of the AFP charged of coup d’etat can no longer be charged with mutiny under
Article 67 of the Articles of War before courts-martial for the same delictual or punitive act.

I vote to DISMISS the petition.

ROMEO J. CALLEJO, SR.

Associate Justice

Footnotes

1 People v. Hernandez, 99 Phil. 515, 536 (1956).

2 Id. at 541.

3 G.R. No. 93335, September 13, 1990, 189 SCRA 573, 580-581.

4 G.R. No. 95136, October 3, 1991, 202 SCRA 405, 416.

5 Supra note 1.

6 Supra note 3.

7 G.R. No. 92163, June 5, 1990, 186 SCRA 217.

8 Michigan v. Wagner, 77 N.W. 422.

9 Loving v. U.S., 517 U.S. 748, 778, 116 S.Ct. 1737 (1966).

10 Gloria, Philippine Military Law Annotated, p. 3.

11 Carter v. Roberto, 177 U.S. 497 (1900).

12 U.S. v. Weldon, 7 M.J. 938 (1979).

13 Parker v. Levy, 417 U.S. 733 (1974).

14 U.S. v. Taylor, 23 M.J. 341 (1987).

15 Article 3, Articles of War.

16 Supra note 14, p.17, citing Winthrop, Military Law and Precedents (2nd ed.), 49.

17 U.S. ex rel. Toth v. Quarles, 350 U.S. 11 (1955).

18 Orloff v. Willoughby, 345 U.S. 83 (1953)

The Lawphil Project - Arellano Law Foundation

G.R. No. 164007 – LT. (SG) EUGENE GONZALES, LT. (SG) ANDY TORRATO, LT. (SG) ANTONIO TRILLANES
IV, CAPT. GARY ALEJANO, LT. (SG) JAMES LAYUG, CPT. NICANOR FAELDON, LT. (SG) MANUEL
COBOCHAN, ENS. ARMAND PONTEJOS, LT. (JG) ARTURO PASCUA, and 1LT. JONHNEL SANGGALANG,
Petitioners, versus GEN. NARCISO ABAYA, in his capacity as Chief of Staff of the Armed Forces of the Philippines,
and B/GEN. MARIANO M. SARMIENTO, JR., in his capacity as the Judge Advocate General of the Judge Advocate
General Office (JAGO), Respondents.

Promulgated:

August 10, 2006

SEPARATE OPINION

(Concurring and Dissenting)

Tinga, J.:

My concurrence to the dismissal of the petition is limited to a much narrower ground than that offered by the majority
opinion, which, with due respect, I am unable to fully join and thus impelled to mostly dissent from. The broad
propositions adopted by the majority render inutile Republic Act No. 7055, (RA 7055) that generally restored civil
jurisdiction over offenses involving members of the Armed Forces of the Philippines (AFP). This law stands as a key
implement in the restoration of civilian supremacy over the military, a precept that was reinvigorated with the
restoration of civil democracy in 1986. The rationale that sustains the majority position stands athwart to that
important constitutional principle as effectuated through RA 7055.

Instead, my position hinges on the peculiar nature of Article 96 of the Articles of War, the violation of which
petitioners stand accused of before the court-martial. Not only does Article 96 embody a rule uniquely military in
nature, it also prescribes a penalty wholly administrative in character which the civilian courts are incapable of
rendering. For that reason alone, I agree that petitioners may stand civilian trial for coup d’etat and court-martial for
violation of Article 96.

Still, I acknowledge that I would have voted to grant the petition had petitioners faced other charges, instead of the
sole Article 96 charge, before the court-martial in connection with the Oakwood mutiny. I submit that RA 7055
precisely authorizes the civil court to independently determine whether the offense subject of the information before
it is actually service-connected. If the trial court does determine, before arraignment, that the offense is service-
connected, it follows that, as a rule, the military court will not have jurisdiction over the acts constituting the offense.

Restatement of Relevant Facts

The following facts I consider relevant.

On 5 August 2003, just a little over a week after the so-called Oakwood mutiny, the Department of Justice filed an
Information with the Regional Trial Court (RTC) of Makati against 321 military personnel, including petitioners, for
violation of Article 134-A of the Revised Penal Code which is the crime of coup d’etat. After the case was docketed
as Criminal Case No. 03-2784, the RTC directed the DOJ to conduct a reinvestigation of the said case. On the
same day that the order for re-investigation was issued, the AFP Chief of Staff created a Pre-Trial Investigation
Panel against the same persons to determine the propriety of filing charges with a military tribunal against
petitioners, along with 300 or so other soldiers, for violation of the Articles of War, again in connection with the
Oakwood mutiny. Thus, 243 of the accused before the RTC, including petitioners, filed a motion with the trial court
praying that the court assume jurisdiction over all the charges filed with the military tribunal, following RA 7055. 1

After re-investigation, the DOJ found probable cause for the crime of coup d’etat against only 31 of the original 321
accused. The DOJ then filed a motion for dismissal of the charge of coup d’etat against the 290 others, which
motion was granted by the RTC in an Order dated 14 November 2003. Petitioners were among the 31 who still
faced the charge of coup d’etat before the RTC.

Notwithstanding the dismissal of the charge of coup d’etat against the 290 soldiers, they were still charged before
the General Court Martial for violation of Articles 63, 64, 67, 96 and 97 of the Articles of War. 2 Among the charges
faced by these soldiers was for "mutiny," punishable under Article 63. Only those soldiers the charge of coup
d’etat against whom was dismissed were subjected to the charge of Articles of War violations before the
court-martial. Some of these 290 soldiers challenged the jurisdiction of the court-martial in a petition for prohibition
before this Court, which was denied in Navales v. Abaya 3 in 2004.

On the other hand, on 9 December 2003, the Pre-Trial Investigation Panel recommended that the 31 officers facing
the charge of coup d’etat before the trial court be excluded from the court-martial proceedings. The rationale that the
Panel offered was the assumption of civilian jurisdiction by the RTC based on RA 7055 and its belief that the
charges against the 31 it was investigating were absorbed by the crime of coup d’etat, which was already within the
jurisdiction of the RTC to try and decide.

It was on 11 February 2004 that the RTC issued an Order (RTC Order) stating that "all charges before the court-
martial against the accused.. are hereby declared not service-connected, but rather absorbed and in furtherance of
the alleged crime of coup d’etat." Note that as of then, only 31 officers remained within the jurisdiction of the RTC. If
there are any relevant subjects of the RTC Order, it is these 31, including petitioners, and not the 290 others the
case for coup d’etat against whom had already been dismissed.

Thus, as things stood as of 11 February 2004, only 31 officers, including petitioners, were still within the jurisdiction
of the RTC, as they remained charged with coup d’etat. None of the 31 were facing any charge before the court-
martial, the investigation against them by the AFP Pre-Trial Investigation Panel had already been concluded by
then. On the other hand, the 290 other soldiers, including the Navales petitioners, were no longer facing any criminal
cases before the RTC, but were instead facing court-martial charges. This symmetry is deliberate, cognizant as the
DOJ and the AFP were of the general principle, embodied in RA 7055, that jurisdiction over acts by soldiers which
constitute both a crime under the penal laws and a triable offense under the Articles of War is exercised exclusively
by either the civilian court or the court-martial, depending on the circumstances as dictated under Section 1 of RA
7055.

It was in June of 2004 that this symmetry was shattered. It appears that at that point, the AFP reconsidered its
earlier decision not to try the 31 officers before the court-martial. There appears per record, a letter dated 17 June
2004, captioned "Disposition Form," signed by a certain De Los Reyes, and recommending that the 31 be charged
as well before the court-martial for violation of Article 96 of the Articles of War and that pre-trial investigation be
reconducted for that purpose. 4 This recommendation was approved by then AFP Chief of Staff Narciso Abaya. It
was this decision to reinitiate court-martial proceedings against the 31 that impelled the present petition for
prohibition.

As stated earlier, I believe that ultimately, petitioners may still be charged with violation of Article 96 of the Articles of
War, notwithstanding the pending case for coup d’etat before the RTC against them. My reason for such view lies in
the wholly administrative nature of Article 96 and the sole penalty prescribed therein, dismissal from service, which
is beyond the jurisdiction of civilian courts to impose. Yet I arrive at such view without any denigration of the RTC
Order, which proceeds from fundamentally correct premises and which, to my mind, bears the effect of precluding
any further charges before the court-martial against petitioners in relation to the Oakwood mutiny. Unfortunately, the
majority gives undue short shrift to the RTC Order and the predicament confronting the present petitioners, who are
now facing not only trial before the civilian court for the crime of coup d’etat, but also court-martial proceedings for
acts which if not identical to those charged in the criminal case are at least integrally related. I respectfully submit
that RA 7055 was precisely designed to generally prevent such anomaly, but that the majority fails to give fruition to
such legislative intent.

Instead, the majority has laid down a general rule that if members of the military are charged before military
tribunals with violation of Articles of War 54 to 70, 72 to 92, and 95 to 97, then the court-martial proceedings
would progress unhampered even if the acts which constitute the violation of the Articles of War also
constitute offenses under the Revised Penal Code. The court-martial proceedings would also ensue even if
the said personnel are also charged for the same acts with a criminal case before the civilian court, and
even if the civilian court determines that the acts are not service-connected. Most critically, this view would
allow the defendant to be tried and convicted by both the military and civilian courts for the same acts,
despite the consistent jurisprudential rule that double jeopardy applies even as between court-martial and
criminal trials. I cannot agree to these general propositions, excepting when the defendants happen to be
charged before the court-martial for violation of Article 96 of the Articles of War.

There are three fundamental questions that are consequently raised. First, can Congress by law limit the
jurisdiction of military tribunals and court-martials? Second, does RA 7055 effectively deprive military
courts jurisdiction over violations of Articles of War 54 to 70, 72 to 92, and 95 to 97 if the civilian court
determines that the offenses charged do not constitute service-connected offenses? And third, does it
constitute double jeopardy if the same military actor is tried and convicted before both civilian and military
courts for the same acts? I respectfully submit that all these questions should generally be answered in the
affirmative.

Jurisdictions of Courts-Martial In

the Philippines Fundamentally Statutory

I begin with the constitutional and statutory parameters of courts-martial in the Philippines.

It is settled, in cases such as Ruffy v. Chief of Staff, 5 that court-martial proceedings are executive in character,
deriving as they do from the authority of the President as the Commander-in-Chief of the armed forces. 6 Indeed, the
authority of the President to discipline members of the armed forces stands as one of the hallmarks of the
commander-in-chief powers. Obedience to the President and the chain-of-command are integral to a professional
and effective military, and the proper juridical philosophy is to accede as much deference as possible to this
prerogative of the President.

However, in Marcos v. Chief of Staff, 7 decided five (5) years after Ruffy, the Court ruled that the word "court" as
used in the Constitution included the General Court-Martial, citing Winthrop’s Military Law and Precedents, which
noted that "courts-martial are [in] the strictest sense courts of justice". 8 Indeed, it would be foolhardy to ignore, with
semantics as expedient, the adjudicative characteristics of courts-martial and their ability to inflict punishment
constituting deprivation of liberty, or even life. A court-martial is still a court of law and justice, 9 although it is not a
part of the judicial system and judicial processes, but remains to be a specialized part of the over-all mechanism by
which military discipline is preserved. 10

Regardless of the accurate legal character of courts-martial, it should go without saying that the authority of the
President to discipline military personnel through that process is still subject to a level of circumscription. Without
such concession, the President could very well impose such draconian measures of military punishment, such as
death by firing squad for overweight soldiers. The Court has indeed, on occasion, recognized limitations and
regulations over courts-martial. In Olaguer v. Military Commission, 11 the Court reasserted that military tribunals
cannot try and exercise jurisdiction over civilians for as long as the civil courts are open and functioning. 12 The
authority of the Supreme Court to review decisions of the court-martial was affirmed in Ognir v. Director of
Prisons, 13 and should be recognized in light of the judicial power of the Supreme Court under the 1987 Constitution,
which extends to determining grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any
branch or instrumentality of the Government. And finally, there are the series of rulings on the subject of double
jeopardy, which I shall soon discuss further.

Most strikingly, the "Articles of War" presently in use emanates not from executive fiat, but from a law passed by the
National Assembly known as Commonwealth Act No. 408. As such, the determination of what acts or offenses are
punishable by court-martial was in actuality made not by the President, but by the legislature. As such, the Articles
of War are utterly susceptible to legislative amendment, augmentation, or even revocation.

I do not doubt that without an enabling law, the President would have the power to impose court-martial proceedings
under the aegis of the Commander-in-Chief clause. Yet if there is an enabling law passed, such as Commonwealth
Act No. 408, then the President is bound to exercise the power to prescribe court-martial proceedings only within the
limits imposed by the law. These precepts should not preclude the President from mandating other forms of military
discipline, but if the choice is to subject the soldier concerned to court-martial, then such proceedings should ensue
within the boundaries determined by the legislature under Commonwealth Act No. 408.
American jurisprudence is actually quite emphatic that the jurisdiction of a court-martial is established by statute,
and a court-martial has no jurisdiction beyond what is given by statute. "[A] court-martial [is] a special statutory
tribunal, with limited powers." 14 To quote from Corpus Juris Secundum:

The jurisdiction of a court-martial is premised on an authorized convening authority, court membership in

accordance with the law, and power derived from congressional act to try the person and the offense
charged. [ 15 Thus, in order for a court-martial to have jurisdiction, it must be convened and constituted in
accordance with law[ 16; and a court-martial has no jurisdiction beyond what is given it by statute.[ 17 General court-
martial jurisdiction is not restricted territorially to the limits of a particular state or district.

The long continued practice of military authorities in exercising court-martial jurisdiction may aid in the interpretation
of statutes conferring such jurisdiction; but the authority of a Secretary of an armed forces department to issue
regulations does not permit extension of the jurisdictions of courts-martial of the armed force controlled by
that department beyond the limits fixed by Congress[ 19

The language of statutes granting jurisdiction to courts-martial to try persons for offenses must be construed to
conform as near as may be to the constitutional guarantees that protect the rights of citizens in general, it being
assumed that Congress intended to guard jealously against dilution of the liberties of citizens by the enlargement of
jurisdiction of military tribunals at the expense of the jurisdiction of the civil courts. 20

Clearly then, while court-martial under military law may be sui generis, it is not supra legem. The power to try by
court-martial is established, defined and limited by statute, even if it arises as a consequence of the power of the
President as Commander-in-Chief.

What are the implications of these doctrines to the case at bar? To my mind, they sufficiently establish that
Congress does have the power to exclude certain acts from the jurisdiction of the General Court-Martial. The same
legislature that enacted Commonwealth Act No. 408 is very well empowered to amend that law, as it has done on
occasion. 21 And I submit that Congress has done so with the enactment of RA 7055.

Republic Act No. 7055

The title of RA 7055 reads "An Act Strengthening Civilian Supremacy Over the Military By Returning to the
Civil Courts the Jurisdiction Over Certain Offenses Involving Members of the Armed Forces of the
Philippines, Other Persons Subject to Military Law, and the Members of the Philippine National Police, Repealing
for the Purpose Certain Presidential Decrees." 22 In the Philippines, the conferment of civil jurisdiction over members
of the military charged with non-service connected offenses is predicated on the constitutional principle of civilian
supremacy over the military. 23 As Senator Wigberto Tañada remarked in his sponsorship remarks over Senate Bill
No. 1468, eventually enacted as RA 7055, "[A]s long as the civil courts in the land remain open and are regularly
functioning, military tribunals cannot try and exercise jurisdiction over military men for criminal offenses committed
by them and which are properly cognizable by the civil courts. To have it otherwise would be a violation of the
aforementioned constitutional provisions on the supremacy of civilian authority over the military and the integrity and
independence of the judiciary, as well as the due process and equal-protection clauses of the Constitution." 24

The title of the law alone is already indicative of the law’s general intent to exclude from the jurisdiction of
the General Court-martial "certain offenses" which would now be tried by the civil courts. Section 1
operationalizes such intent, asserting as a general rule that members of the AFP "who commits crimes penalized
under the Revised Penal Code, other special penal laws, or local government ordinances xxx shall be tried by the
proper civil court xxx." Notably, the majority does concede the general rule.

The exception of course, are offenses which are service-connected. They are excluded from the jurisdiction of the
civilian courts. It is worth mentioning at this juncture that the concept of "service-connected" offenses as a
determinant of court-martial jurisdiction arose from American jurisprudence. In O’Callahan v. Parker, 25 decided in
1969, the U.S. Supreme Court reversed previous doctrines and announced a new constitutional principle ── that a
military tribunal ordinarily may not try a serviceman charged with a crime that has no service connection. 26

RA 7055 Reposes on the Trial Court

 The Specific Role of Determining Whether

The Offense is Service-Connected

Obviously, the ascertainment of whether or not a crime is service-connected is of controversial character,

necessitating the exercise of judgment. Appropriately, that function is assigned by Section 1 not to the courts-
martial, but to the civil courts. Indeed, Section 1 requires that before the offense shall be tried by court-martial,
there must be first a determination before arraignment by the civil court that the offense is indeed service-
connected. Section 1 states:

Members of the Armed Forces of the Philippines and other persons subject to military law xxx who commit crimes or
offenses penalized under the Revised Penal Code, other special penal laws, or local government ordinances,
regardless of whether or not civilians are co-accused, victims or offended parties which may be natural or juridical
persons, shall be tried by the proper civil court, except when the offense, as determined before arraignment
by the civil court, is service-connected, in which case the offense shall be tried by court-martial xxx

As used in this Section, service-connected crimes or offenses shall be limited to those defined in Articles
54 to 70, Articles 72 to 92, and Articles 95 to 97 of Commonwealth Act No. 408, as amended. 27 (Emphasis
supplied.)

There are two possible scenarios that may arise after a soldier commits a crime which is punishable under both the
Revised Penal Code and under Commonwealth Act No. 408.

In one, the soldier is charged only with violation of the Articles of War and tried by the court-martial. In this situation
wherein no criminal case is filed against the soldier, the court-martial continues unimpeded.

In the other, the soldier is charged with both violation of the Articles of War (triable by court-martial) and a criminal
offense involving the same act (triable by the civilian court). Here, a different set of rules operates. RA 7055 comes
into application in such a case. Section 1 of RA 7055 clearly reposes on the trial court, and not the court-martial, the
duty to determine whether the charges in the information are service-connected. If the civilian court makes a
determination that the acts involved are not service-connected, then the court-martial will generally have no
jurisdiction.

In this particular role, the trial court is merely guided in its determination by Articles of War 54 to 70, 72 to
92, and 95 to 97, the specific articles to which the determination of service-connected offenses according to
RA 7055 is limited. The importance of the trial court’s function of determination cannot be dismissed lightly. Since
the law mandates that the trial court make such a determination, it necessarily follows that the court has to ascertain
on its own whether the offenses charged do fall within the Articles of War. It would not bind the civilian court that
the defendants are charged with the same acts before the court-martial under Articles of War 54 to 70, 72 to
92, and 95 to 97. The civilian court is required to still make a determination, independent of that of the court-
martial, that the acts charged constitute a service-connected offense.

However, the majority is satisfied that since petitioners are charged before the military tribunal with violation of one
of the Articles of War so mentioned in Section 1 of RA 7055, this offense is within the jurisdiction of the court-martial.
The majority is thus of the position that regardless of whatever transpires in the civilian court trial, court-martial
proceedings may ensue unimpeded so long as the defendants therein are charged with Articles of War 54 to 70, 72
to 92, and 95 to 97. Such jurisdiction of the court-martial subsists even if the civilian courts had determined that the
acts which constitute the offense triable under court-martial are not service-connected. This position renders
utterly worthless the function of the civilian courts to determine whether the offense is indeed service-
connected, as such determination would no longer have any bearing on the jurisdiction of the courts-
martial to try the same acts.

Justice Carpio, in particular, asserts in his Concurring Opinion that the civilian court is limited to "only a facial
examination of the charge sheet in determining whether the offense charged is service connected." 28 This
proposition negates the entire purpose of RA 7055, as it would ultimately render the military as the sole judge
whether a civilian court can acquire jurisdiction over criminal acts by military personnel, even if such soldier has
committed a crime under the Revised Penal Code. Under this position, all the military has to do is to charge the
actor with violation of Articles of War 54 to 70, 72 to 92, and 95 to 97, and the civilian court would be effectively
deprived of jurisdiction to try the offense, even if the act is clearly punishable under civil penal laws. With all due
respect, such "facial examination", which would be undertaken by a learned judge of a civilian court, can be
accomplished with ease by a non-lawyer, by a fifteen-year old, or anybody with rudimentary skills in the English
language. After all, the only necessary act for such purpose would be to look at the charge sheet and the Articles of
War. As long as the civilian court sees that charge sheet states that the defendants have been charged with any of
the aforementioned Articles of War, the determinative function would already be accomplished.

Under the standard of "facial examination," the trial court can very well make its determination even without the
benefit of charge sheet if there is no such charge sheet yet. In reality though, the trial courts primary source of
information and basis for determination is the information in the criminal case before it, as well as the affidavits and
documents which the prosecution may make available to it. Assuming that there is a court-martial charge sheet, the
same on its face may be incapable of capturing the particulars of the criminal acts committed, as there is no
prescribed demand for such particularity. As such, a "facial examination" could not suffice in affording the civilian
court any significant appreciation of the relevant factors in determining whether the offense was indeed service-
connected.

Worse, by advocating "facial examination" as a limit, this view would actually allow malfeasors in the military to
evade justice, if they are fortunate enough to have sympathizers within the military brass willing to charge them with
a violation of the aforementioned articles of war in order that they escape the possibly harsher scrutiny of the civilian
courts. For example, Article 69 of the Articles of War punishes persons subject to military law who commit frauds
against the government, which include, among others, stealing, embezzling, knowingly and willfully
misappropriating, applying to his own use or benefit or wrongfully or knowingly selling or disposing of "any
ordinance, arms, equipment, ammunition, clothing, subsistence stores, money or other property of the Government
furnished or intended for the military service." 29 The offense, which according to the majority is strictly a service-
connected offense, is punishable by "fine or imprisonment, or by such other punishment as a court-martial may
adjudge, or by any or all of said penalties." 30 A military comptroller who embezzles the pension funds of soldiers
could be made liable under Article 95, and thus could be appropriately charged before the court-martial. Also
pursuant to Article 95, the court-martial has the discretion to impose as final punishment a fine of P1,000.00, even if
the comptroller embezzled millions of pesos. If the said comptroller has friends within the military top brass, the
prospect of such a disproportionate penalty is actually feasible.

Now, if Justice Carpio’s position were to be pursued, no civilian court, whether the RTC or the Sandiganbayan,
could acquire jurisdiction over the comptroller for the offense of embezzlement, which is punishable under the
Revised Penal Code and the Anti-Graft and Corrupt Practices Act, the moment the comptroller faces the charge of
violating Article 95 before the court-martial. Why? Because these civilian courts would be limited to "only a facial
examination of the charge sheet in determining whether the offense is service-connected." Justice Carpio adds, "[i]f
the offense, as alleged in the charge sheet, falls under the enumeration of service-connected offenses in Section 1
of RA No. 7055, then the military court has jurisdiction over the offense."

Applying Justice Carpio’s analysis to this theoretical example, the offense is "as alleged in the charge sheet" is a
violation of Article 95 of the Articles of War. Article 95 "falls under the enumeration of service-connected offenses in
Section 1 of R.A. No. 7055." Then, according to Justice Carpio, "the military court has jurisdiction over the offense."
Yet Section 1 also

states that as a general rule that it is the civilian courts which have jurisdiction to try the offense, "except when the
offense, as determined before arraignment by the civil court, is service-connected, in which case the
offense shall be tried by court-martial." The ineluctable conclusion, applying Justice Carpio’s view to our
theoretical example, is that the civilian court does not have jurisdiction to try the offense constituting
embezzlement since it was forced to determine, following the limited facial examination of the charge sheet,
that the act of embezzlement punishable under Article 95 of the Articles of War is a service-connected
offense.

If "facial examination" ill-suffices as the appropriate standard of determination, what then should be the proper level
of determination?

Full significance should be accorded the legislative tasking of the civil court, not the military court, to determine
whether the offense before it is service-connected or not. Indeed, determination clearly implies a function of
adjudication on the part of the trial court, and not a mechanical application of a standard pre-determined by some
other body. The word "determination" implies deliberation 31 and is, in normal legal contemplation, equivalent to "the
decision of a court of justice." 32 The Court in EPZA v. Dulay 33 declared as unconstitutional a presidential decree
that deprived the courts the function of determining the value of just compensation in eminent domain cases. In
doing so, the Court declared, "the determination of ‘just compensation’ in eminent domain cases is a judicial
function." 34

The majority shows little respect for the plain language of the law. As earlier noted, they believe that the
determination reposed in the civilian court is limited to a facial examination of the military charge sheet to ascertain
whether the defendants have been charged before the court-martial with the violation of Articles of War 54 to 70, 72
to 92, and 95 to 97. Their position could have been sustained had Section 1 read, "As used in this Section, service-
connected crimes or offenses are those defined in Articles 54 to 70, Articles 72 to 92, and Articles 95 to 97 of
Commonwealth Act No. 408, as amended," discarding the phrase "shall be limited to" immediately preceding the
words "those defined." Such phraseology makes it clear that "service-connected crimes or offenses" are equivalent
to "Articles 54 to 70, Articles 72 to 92, and Articles 95 to 97." Yet Section 1 is hardly styled in that fashion. Instead, it
precisely reads, "xxx service-connected crimes or offenses shall be limited to those defined in Articles 54 to 70
xxx."

What is the implication of the phrase "shall be limited to"? This has to be tied to the role of determination ascribed to
the civilian court in the previous paragraph under Section 1. Note again, "determination" signifies that the civilian
court has to undertake an inquiry whether or not the acts are service connected. As stated earlier, the Articles of
War specified in Section 1 serve as guides for such determination. "shall be limited to" assures that the civilian court
cannot rely on a ground not rooted on those aforementioned articles in ruling that an offense is service-connected.
For example, the civilian court cannot declare that an offense is service-connected because the offender is a three-
star general. Being a three-star general is in no way connected to Articles 54 to 70, Articles 72 to 92, and Articles 95
to 97.

At the same time, Section 1 concedes that if the act or offense for which the defendant is prosecuted before the
civilian court also falls within those specified Articles of War, then the civilian court has to further determine whether
the offense is service-connected. For example, a soldier who knowingly harbors or protects an enemy of the state
may be liable under Article 82 of the Articles of War, which generally punishes military persons who aid the enemy,
or under Article 114 of the Revised Penal Code, which classifies giving aid or comfort to the enemy as an act of
treason. If the soldier is charged with treason, the civilian court may be called upon to determine whether the acts of
assistance are service-connected, and it should be able to take into account the particular circumstances
surrounding such acts. If the trial court determines that the offense is indeed service-connected, finding for example
that the defendant had used his/her rank to assist the enemy, then it may rely on Article 82 in its conclusion that the
act is service-connected. If however, the actor’s being also a soldier proved merely incidental and inconsequential to
the assistance rendered to the enemy, the civilian court could very well declare that the offense is not service-
connected and thus subject to trial for treason before it.

The function devolved by the law on the trial court involves the determination of which offenses are service-
connected and which offenses are not. The power of determination, however, is circumscribed by the law itself. By
employing the phrase "shall be limited to" and tying it with specifically enumerated Articles, the law precludes the
trial court from characterizing acts which fall under the Articles not so enumerated as service-connected. Since
Article 93 defining rape and Article 94 defining "various crimes" are not included in the enumeration in RA 7055 it
follows that the trial court is devoid of authority to declare rape and "various crimes" as service-connected.

Again, the general purpose of RA 7055 is to deprive the court-martial of jurisdiction to try cases which are
properly cognizable before the civilian courts. Hence, if a soldier is charged with violation of any of the articles other
than those referred to in Section 1, the court-martial is deprived of jurisdiction under RA 7055 if such violation also
constitutes a crime or offense under our penal laws. Section 1, by citing those aforementioned articles, carves an
exception to the general rule, yet at the same time, qualifies this exception as subject to the determination of the trial
court. Hence, if the trial court so determines that the "service-connected" exception does not apply, the general rule
depriving the court-martial jurisdiction over the offense should continue to operate.

It is worth mentioning that prior to RA 7055, Commonwealth Act No. 408 recognized an exception to the rule that
military persons are always subjected to court-martial in lieu of civil trial. Article 94 stipulated that a person subject to
military law who committed a felony, crime, breach of law or violation of municipal ordinance recognized as an
offense of a penal nature was punishable by court-martial, provided that such act was committed "inside a
reservation of the [AFP]," or outside such reservation when the offended party is a person subject to military
law. 35 The implication, therefore, was that if such act described were committed outside a military reservation, the
civilian courts would have jurisdiction to try such offense. As the official Manual for Courts-Martial of the AFP states,
"[w]henever persons subject to military law commit any of the offenses above stated outside Philippine Army
reservations, they fall under the exclusive jurisdiction of civil courts." 36

RA 7055 clearly expands this exception, by now mandating that even crimes committed within military reservations
fall within the jurisdiction of civil courts, the only exception remaining is if it is determined by the civilian court that the
offense is actually service-connected. Significantly, Section 1 of RA 7055 did not include Article 94 as among the
Articles of War which define service-connected offenses. 37 Evidently the situs of the offense is not material as to
whether the acts committed are service-connected offenses.

Admittedly, RA 7055 effectively curtails the ability of the military leadership to discipline the soldiers under their
command through the court-martial process. This is accomplished though not by shielding errant soldiers from the
criminal processes, but instead through the opposite route, by entrusting to the civilian courts the authority and
sufficient discretion to impose substantive justice on such soldiers, conformably with the constitutional principle of
civilian supremacy over the military. It must be noted that the acquisition of exclusive jurisdiction by the court-martial
to try soldiers for acts punishable under penal laws is a double-edged sword of mischief. It can be utilized by a
military leadership with an unquenchable thirst to punish its soldiers, a procedure which is facilitated due to the
relatively lighter evidentiary requirements under military justice. It can also be utilized by a military leadership greatly
sympathetic to one of their "mistahs" under fire, since the ability to inflict the lightest and most disproportionate of
punishments falls within the wide range of discretion in the punishment accorded by law to courts-martial. Either
premise is undesirable, and precisely RA 7055 was enacted to ensure that the civilian courts have all the
opportunity to acquire jurisdiction over military persons who commit crimes, and to assure the trial courts all the
discretion necessary to determine whether it should assume jurisdiction if the exception provided under Section 1 of
the law is invoked.

RA 7055 Generally Prevents Military Personnel

From Facing Simultaneous Criminal Trials and Courts-Martial

Over the Same Acts or Offenses

It is thus not enough that petitioners have been charged with violating an Article of War referred to in Section 1 to
authorize their court-martial to proceed, since the same act that constitutes the violation of an Article of War is also
alleged in the complaint for coup d’etat now pending in the civilian courts. In order that the court-martial proceedings
against petitioners could ensue, it is indisputably necessary that the RTC Order determining that the charges before
the court-martial are not service-connected is directly nullified or reconsidered with the needed effect of terminating
the criminal case for coup d’etat against them. If the act constituting the offense triable before the civilian courts and
the court-martial are the same, then the defendants may be tried only either before the civilian courts or the court-
martial, and not in both tribunals.

This is precisely why the exceptions under Section 1 of RA 7055 were provided for – to prevent the anomaly
of the defendants being subjected to two different trials of equally punitive value for the same act. It is well
worth noting that the Senate deliberations on RA 7055 indicate a strong concern on the part of the legislators over
the situation wherein violations of the Articles of War also stand as violations of the Revised Penal Code. The
following exchange between the late Senate President Neptali Gonzales and Senator Wigberto Tañada is worth
noting:

Senator Gonzales. Again, in line 16, it says: The offenses defined in Articles 54 to 93 and 95 to 97 of the Articles of
War, established by Commonwealth Act Numbered Four Hundred Eight, as amended, the same shall be triable by
court-martial.

But there are many offenses which are also violations of the Articles of War. For example, murder. It may
not necessarily be a murder of a fellow member of the Armed Forces. That is also a violation of the Articles
of War; but, at the same time, it is also a crime punishable under the Penal Code. What do we do in such a
situation?
Senator Tañada. In such an example, that would be tried by the civil courts. We had accepted the amendment
proposed by Senator Ziga to exclude Article 93 under the Articles of War which would refer to murder or rape
committed in times of war. Now, we have excluded that, because we believe that the murder or rape, whether
committed in times of war, should not be tried by the civil courts.

Senator Gonzales. Do we have the distinguished Gentleman’s assurance that after deleting Article 93, also with
respect to Articles 54 to 92, 95 to 97, there is absolutely no situation wherein the same act constitutes a violation of
the Revised Penal Code and at the same time a violation of the Articles of War?

Senator Tañada. Yes, Mr. President. We excluded also Article 94 of the Articles of War, because this refers to
various crimes that may be committed by persons subject to military law, which crimes can be considered as
felonies, breach of law, or violation of municipal ordinance, which is recognized as an offense of a penal nature, and
is punishable under the penal laws of the Philippines or under municipal ordinances.

Senator Gonzales. We have the assurance of the distinguished Gentleman, and we rely on that assurance. xxx 38

The passage deserves to be cited as it affirms the deliberate intent, already evident in the text of the law itself, to
avoid the scenario of the civilian courts and the courts-martial exercising concurrent jurisdiction over the same acts.
Hence, for as long as the act committed by the soldier does not fall within those Articles of War referred to in Section
1, the civilian courts alone exercises jurisdiction over the trial of the acts. If it is asserted by the courts-martial, or
otherwise argued, that the act complained of falls within those Articles of War referred to in Section 1, then the
civilian court must make a determination that the acts committed are "service-connected," with the cited Articles as
reference, before it can exercise its jurisdiction to the exclusion of the courts-martial. If the trial court declares that
the acts are service-connected, it then is obliged to decline jurisdiction in favor of the courts-martial.

The cited passage does express the opinion of Senator Tañada that there is absolutely no situation wherein the
same act constitutes a violation of the Revised Penal Code and at the same time a violation of the Articles of War.
Such opinion might be cited to refute the declaration in the RTC Order that the acts charged before the court-martial
were absorbed in the crime of coup d’etat. Yet caution should be had before this opinion of Senator Tañada is cited
for that purpose. The quoted remarks were made on 21 May 1990, or five (5) months before the crime of coup
d’etat was incorporated into the Revised Penal Code with the enactment of Republic Act No. 6968 on 24 October
1990. Certainly, when Senator Tañada made such opinion, he had no reason to believe that the cited Articles of
War did not constitute any violation of the Revised Penal Code, particularly the crime of coup d’etat, since no such
crime existed then.

Double Jeopardy

There is another vital reason RA 7055 cannot be interpreted in such a way as to permit both civilian and military
trials of military personnel over the same act. Double jeopardy would arise as a consequence if such an
interpretation were foisted.

It is very well settled that double jeopardy attaches if one is tried by both a military court and a civilian court over the
same act, notwithstanding the differing natures of both tribunals. The rule was pronounced by the Philippine
Supreme Court as far back as 1903, in U.S. v. Colley. 39 Therein, the defendant was sentenced to death by a court-
martial after murdering a fellow soldier, but the sentence could not be carried out after the reviewing authority of the
Army concluded that the military authorities were without power to carry into execution the sentence. He then was
charged with the same offense before a civilian court. In ruling that the criminal case should be dismissed, the Court
ruled that the criminal trial was barred by double jeopardy. The Court pronounced: "So here there is but one offense,
that against the United States, and when the Government chooses the tribunal in which to try an offender, when the
trial takes place in that tribunal, and when the accused is convicted and sentenced, he can not again be put in
jeopardy in another court of the same sovereignty. xxx It follows that the defendant having been once in jeopardy
can not be tried again for the offense of which he was formerly convicted." 40 A similar situation obtained in U.S. v.
Tubig, 41 decided some months later, and a similar judgment of acquittal was mandated by the Court on the ground
of double jeopardy.

The doctrine has survived past the American occupation. In 1954, the Court was again confronted with the issue
whether a sentence passed by a military court barred further prosecution of the same offense in a civilian court. The
Court, in Crisologo v. People, 42 squarely ruled that double jeopardy indeed barred such prosecution:
As we see it, the case hinges on whether the decision of the military court constitutes a bar to further prosecution for
the same offense in the civil courts.

The question is not of first impression in this jurisdiction. In the case of U. S. vs. Tubig, 3 Phil., 244, a soldier of the
United States Army in the Philippines was charged in the Court of First Instance of Pampanga with having
assassinated one Antonio Alivia. Upon arraignment, he pleaded double jeopardy in that he had already been
previously convicted and sentenced by a court-martial for the same offense and had already served his sentence.
The trial court overruled the plea on the grounds that as the province where the offense was committed was under
civil jurisdiction, the military court had no jurisdiction to try the offense. But on appeal, this court held that "one who
has been tried and convicted by a court-martial under circumstances giving that tribunal jurisdiction of the defendant
and of the offense, has been once in jeopardy and cannot for the same offense be again prosecuted in another
court of the same sovereignty." In a later case, Grafton vs. U. S. 11 Phil., 776, a private in the United States Army in
the Philippines was tried by a general court-martial for homicide under the Articles of War. Having been acquitted in
that court, he was prosecuted in the Court of First Instance of Iloilo for murder under the general laws of the
Philippines. Invoking his previous acquittal in the military court, he pleaded it in bar of proceedings against him in the
civil court, but the latter court overruled the plea and after trial found him guilty of homicide and sentenced him to
prison. The sentence was affirmed by this Supreme Court, but on appeal to the Supreme Court of the United States,
the sentence was reversed and defendant acquitted, that court holding that "defendant, having been acquitted of the
crime of homicide alleged to have been committed by him by a court-martial of competent jurisdiction proceeding
under the authority of the United States, cannot be subsequently tried for the same offense in a civil court exercising
authority in the Philippines."

There is, for sure, a rule that where an act transgresses both civil and military law and subjects the offender to
punishment by both civil and military authority, a conviction or an acquittal in a civil court cannot be pleaded as a bar
to a prosecution in the military court, and vice versa. But the rule "is strictly limited to the case of a single act which
infringes both the civil and the military law in such a manner as to constitute two distinct offenses, one of which is
within the cognizance of the military courts and the other a subject of civil jurisdiction" (15 Am. Jur., 72), and it does
not apply where both courts derive their powers from the same sovereignty. (22 C. J. S., 449.) It therefore, has no
application to the present case where the military court that convicted the petitioner and the civil court which
proposes to try him again derive their powers from one sovereignty and it is not disputed that the charges of treason
tried in the court-martial were punishable under the Articles of War, it being as a matter of fact impliedly admitted by
the Solicitor General that the two courts have concurrent jurisdiction over the offense charged. 43

As noted earlier, Marcos, relying on Winthrop’s Military Law, pronounced that courts-martial are still courts in
constitutional contemplation. 44 At the same time, the Court in Marcos pursued the logic of this thinking insofar as
double jeopardy was concerned:

Besides, that a court-martial is a court, and the prosecution of an accused before it is a criminal and not an
administrative case, and therefore it would be, under certain conditions, a bar to another prosecution of the
defendant for the same offense, because the latter would place the accused in double jeopardy, is shown by the
decision of the Supreme Court of the United States in the case of Grafton vs. United States, 206 U. S. 333; 51 Law.
Ed., 1088, 1092, in which the following was held:

"If a court-martial has jurisdiction to try an officer or soldier for a crime, its judgment will be accorded the finality and
conclusiveness as to the issues involved which attend the judgments of a civil court in a case of which it may legally
take cognizance; . . . and restricting our decision to the above question of double jeopardy, we adjudge that,
consistently with the above act of 1902, and for the reasons stated, the plaintiff in error, a soldier in the Army, having
been acquitted of the crime of homicide, alleged to have been committed by him in the Philippines, by a military
court of competent jurisdiction, proceeding under the authority of the United States, could not be subsequently tried
for the same offense in a civil court exercising authority in that territory."

I am aware that following the Court’s 1993 ruling in People v. Pineda, 45 double jeopardy will not attach unless either
the RTC or the court-martial passes sentence on the petitioners. Yet even applying the Pineda doctrine, it is
inevitable that, once either tribunal renders judgment on the merits, double jeopardy would bar the further
prosecution by the court which was last in time to pronounce sentence, regardless whether petitioners were
convicted or acquitted. If both the RTC trial for coup d’etat and the court-martial of the petitioners are allowed to
proceed unhampered, the strong likelihood arises that either one will be eventually mooted, no matter the stage,
should the other pronounce sentence.
I submit that RA 7055 precisely sought to avoid such a scenario by prescribing, as a general rule, an exclusively
civilian trial for military personnel charged with offenses punishable under our penal laws, even if they are also
punishable under the Articles of War. The only general exception lies if the civilian court determines that the acts
constituting the court-martial offenses are service-connected, as defined under those Articles of War referred to in
Section 1, in which case jurisdiction falls exclusively with the court-martial. If the civilian court arrives at a contrary
determination, the civilian court retains jurisdiction to the exclusion of the court-martial unless and until such
determination is reconsidered or set aside, or unless the criminal case is dismissed or dropped for reasons other
than acquittal on the merits. The only exception I am willing to concede is if the charge before the court-martial falls
under Article 96, which I will discuss further.

Notion of Absorption of Crimes

Irrelevant to Determination under RA 7055

I would like to dwell briefly on the suggestion that the RTC erred in pronouncing that the acts for which petitioners
were charged before the court-martial were "absorbed" in the crime of coup d’etat. Justice Callejo, Sr., in his
Concurring Opinion, cites Baylosis v. Chavez, 46 and the rule that the doctrines laid down on the absorption of
common crimes by political crimes do not apply to crimes which are sui generis offenses.

This aspect is no longer material to my own disposition of the petition, yet I think it is misplaced to apply the doctrine
of absorption of crimes to the determination of service-connected offenses made by the civilian court pursuant to
Section 1 of RA 7055. The function of such determination by the trial court under RA 7055 is wholly different from
that utilized by the trial court in ascertaining whether crime A is absorbed by crime B in the classic criminal law
context. The latter is material to the trial court in reaching conclusions as to which crimes may be considered against
the accused and which penalties may apply as to them. However, the purpose of the determination under RA 7055
is merely for establishing whether the acts for which the accused stand charged before the courts-martial are indeed
service-connected offenses cognizable exclusively before the military courts, or non-service connected offenses
cognizable exclusively before the civilian courts. The determining factor is whether the act is "service-connected,"
not whether one act is absorbed into the other.

The RTC may have been too loose in language when it utilized the word "absorbed," yet the word should not be
appreciated in the context of absorption of crimes, as such consideration is wholly irrelevant for purposes of Section
1. Instead, I think that the pertinent conclusion of the RTC in its Order was that the acts charged before the court-
martial were not service-connected, as they were committed in furtherance of the crime of coup d’etat. This, and not
the notion of absorption of crimes, should be the foundational basis for any attack of the RTC Order.

The Special Circumstance Surrounding Article of War 96

It is my general conclusion that if the civilian court makes a determination that the acts for which the accused stands
charged of, for violating those Articles of War referred to in Section 1 of RA 7055, are not service-connected, then
such determination, once final, deprives the court-martial jurisdiction to try the offense. However, I submit that Article
of War 96 warrants special consideration, as it differs in character from the other Articles of War referred to in
Section 1 of RA 7055.

Article 96 of Commonwealth Act No. 408, as amended, reads:

Art. 96. Conduct Unbecoming an Officer and a Gentleman. — Any officer, cadet, flying cadet, or probationary
second lieutenant, who is convicted of conduct unbecoming an officer and a gentleman shall be dismissed from the
service.

Justice Callejo, Sr. points out in his Concurring Opinion that "conduct unbecoming an officer and a gentleman is a
uniquely military offense," 47 and that "[t]he article proscribing conduct unbecoming an officer and a gentleman has
been held to be wholly independent of other definitions of offenses xxx [and] is not subject to preemption by other
punitive articles." 48 It is difficult to dispute these conclusions, which derive from American military case law. After all,
"conduct unbecoming" pertains to the unique exigencies of military life and discipline, whereby an officer is expected
to conform to an idiosyncratic etiquette not required of civilians.
Yet more pertinent to my position is the penalty prescribed by Article 96 for "conduct unbecoming." The penalty is
dismissal from service, a penalty which is administrative in character, and beyond the jurisdiction of the civilian court
to impose. Notably, of all the Articles of War referred to in Section 1 of RA 7055, it is only Article 96 that provides for
dismissal from service as the exclusive penalty. All the other articles so mentioned allow for the penalty of death,
imprisonment, or a punishment "as a court-martial may so direct" which could very well constitute any deprivation of
life or liberty. While these other articles prescribes a penalty which is penal in nature, it is only Article 96 which
provides for a penalty which is administrative in character.

As a result, I am prepared to conclude that courts-martial retain the jurisdiction to try violations of Article 96 of
Commonwealth Act No. 408, or conduct unbecoming of an officer, even if the RTC determines that the acts
constituting such violation are service-connected. The intent of RA 7055 is to restore to civilian courts jurisdiction
over offenses which are properly cognizable by them to the exclusion of courts-martial. Such intent could obviously
not extend to those offenses which the civilian courts do not have jurisdiction to try and punish. Civilian courts are
utterly incapable of penalizing military officers with the penalty of discharge from the service, since the penalty is
administrative in character 49 and imposable only by the military chain of command.

Petition Should Have Been Granted If Petitioners

Were Charged Under A Different Article of War

Still, if petitioners were facing the charge of mutiny under Article 63 of the Articles of War, or any other Article of War
for that matter, in connection with the Oakwood incident, the petition would have been fully meritorious. The RTC
has made a determination that all acts related to the Oakwood incident are not service-connected offenses. I am not
fully prepared to subscribe to the position that the acts relating to Oakwood were "absorbed" in the offense of coup
d’etat. However, I do concede two important points. First, the RTC did determine that the acts relating to Oakwood
were not service-connected. Second, the determination of the RTC, as embodied in the 11 February 2004 Order,
remains binding as the said Order has not been appealed. It has not been modified or set aside, even by the
present decision or by the ruling in Navales.

The majority is clearly in a quandary, all too willing to pronounce that the Order is wrong, or even a nullity, yet
unable to directly nullify the same. Respondents argue that the Order is already final and beyond challenge, and that
contention should not be dismissed offhand. The suggestion has been raised that the principle of res judicata should
not be made to apply in this case, since the AFP was not a party to the criminal case. This claim is off-tangent,
assuming as it does that the AFP somehow has a distinct and segregate legal personality from the government of
the Philippines. The AFP is part of the government. It is indeed headed by the same person who heads the
executive branch of government. The AFP likewise answers to officers of the executive branch, such as the
Secretary of Defense. Certainly, the rendition of the Order would have presumably caused the same level and
degree of grief on the AFP as it would have on the Department of Justice.

But was the government truly offended by the RTC Order? If it were, it should have timely elevated the same for
appellate review. The fact that it did not gives further indication that the government recognized that Order as
fundamentally correct, especially considering that it contains the very same conclusions reached by the Pre-Trial
Investigating Panel constituted by the AFP.

I think in the end, respondents fully understood and applied the correct implications of RA 7055 as it pertained to
petitioners. Had respondents been aligned in thinking with the majority, they would have been emboldened to
charge petitioners with violations of other Articles of War despite the RTC Order and the pendency of the coup
d’etat case. Petitioners could have very well been charged before the court-martial with violation of Article 63, for
mutiny, just as the 290 other participants in the "Oakwood mutiny." Respondents however did not do so, respecting
in fact the assumption of jurisdiction by the civilian court over the crime of coup d’etat. Instead, respondents limited
the court-martial charge against petitioners for violation of Article 96, a punitive article which is nonetheless wholly
administrative in character and in penalty.

The majority unfortunately shows no similar prudence. Instead, it has opted to take the path that leads to most
resistance. With the decision today, there now stands a very real danger tomorrow that persons standing criminal
trial before the civil courts, including the Sandiganbayan, who also happen to be facing charges before the court-
martial for violation of Articles 54 to 70, 72 to 92, 95 or 97, will move for the dismissal of all their cases before the
civilian courts. Assuming that there is integral relation between the acts now cognizable under court-martial and the
acts for which those defendants face criminal trial, the trial courts will feel but little choice to dismiss those charge, in
light of the present majority ruling. Military justice was once supreme over civilian justice. We should not go down
that way again. Too many ghosts haunt that road.

I vote to dismiss the petition, for the reason discussed above. Insofar as the majority ruling deviates from the views I
stated herein, I respectfully dissent.

DANTE O. TINGA
Associate Justice

Footnotes

1 Rollo, pp. 107-115.

2 See id. at 186-206.

3 G.R. No. 162318 & 162341, 25 October 2004, 441 SCRA 393. The author of this opinion was a member of
the Court that unanimously decided Navales, which used a similar rationale in dismissing the petitions
therein to that now employed by the majority. Even at present, the author submits that Navales was correctly
decided, considering the following declaration made by the Court therein: " There was no factual and legal
basis for the RTC (Branch 148) to rule that violations of Articles 63, 64, 67, 96, and 97 of the Articles of War
were committed in furtherance of coup d'etat and, as such, absorbed by the latter crime. It bears stressing
that, after a reinvestigation, the Panel of Prosecutors found no probable cause for coup d'etat
against the petitioners and recommended the dismissal of the case against them. The trial court
approved the recommendation and dismissed the case as against the petitioners. There is, as yet, no
evidence on record that the petitioners committed the violations of Articles 63, 64, 96, and 97 of the Articles
of War in furtherance of coup d'etat" Navales v. Abaya, id., at 417. Nonetheless, the author acknowledges
that several passages in Navales are not consistent with the views expressed in this Opinion which now
embodies the author’s present thinking, arrived at after considerable reevaluation of the legal issues
involved.

4 Rollo, pp. 266-267.

5 75 Phil. 875 (1946).

6 See also e.g., S/Sgt. Santiago v. Lt. Col. Alikpala, et al., 134 Phil. 309, 318 (1968).

7 89 Phil. 246 (1951).

8 Id. at 248-249.

9Claro C. Gloria, Philippine Military Law, p. 18 (1956), citing Winthrop, Military Law and Precedents , 2nd
Ed., p. 54.

"As a court of law, it is bound, like any court, by the fundamental principles of law, and in the absence of a
special provision on the subject in the military code, it observes in general the rules of evidence as adopted
in the civil courts. As a court of justice, it is required, by the terms of its statutory oath, to adjudicate between
the Philippines and the accused "without partiality, favor, or affection," and according, not only to the laws
and customs of the service, but to its "conscience, i.e., its sense of substantial right and justice unaffected by
technicalities. In the strictest sense courts-martial are courts of justice."

Magno v. de Villa, G.R. No. 92606, 26 July 1991, 199 SCRA 663, 673, citing Chief Justice Teehankee in
10

Vargas v. RADM Kilcline, et al.

11 GR. Nos. L-54558 & L-69882, 22 May 1987, 150 SCRA 144.

12 Id. at 165.
13 80 Phil. 401 (1948).

14 Collins v. McDonald, 258 US 416, 417.

15 NCMR - U.S. v. Moody, 10 M.J. 845.

16 ACMR – U.S. v. Wilson, 27 M.J. 555.

17 In re Wilson, D.C.Va., 33 F.2d 214.

18 U.S. ex rel. Hirshberg v. Cooke, N.Y., 69 S.Ct. 530, 336 U.S. 210, 93 L.Ed. 621.

19 U.S. ex rel. Flannery v. Commanding General, Second Service Command, D.C.N.Y., 69 F.Supp. 661.

20 57 C.J.S. Military Justice § 156. Emphasis supplied.

21 Com. Act No. 408 has been amended by Rep. Act No. 242 (1948) and Rep. Act No. 516 (1950).

22 Emphasis supplied.

23 See Constitution, Art. II, Section 3.

24 Record of the Senate, 9 May 1990, p. 671.

25 395 U.S. 298 (1969).

26See also Gosa v. Mayden, 413 U.S. 665, 672 (1973). O’Callahan in turn was reversed by the U.S.
Supreme Court in its 1987 ruling in Solorio v. U.S., 483 U.S. 435, which reiterated the previous doctrine that
the proper exercise of court-martial jurisdiction over an offense hinged on one factor: the military status of
the accused. Solorio v. U.S., id. at 450-451. Still, it would be foolhardy to apply any persuasive value to the
Solorio ruling to the present petition. The Court in Solorio whole-heartedly embraced the principle that it was
the U.S. Congress that possessed "the authority to regulate the conduct of persons who are actually
members of the armed services", id., at 441. The U.S. Supreme Court also acknowledged that "Congress
has primary responsibility for the delicate task of balancing the rights of servicemen against the needs of the
military. As [the U.S. Supreme Court] recently reiterated, ‘judicial deference… is at its apogee when
legislative action under the congressional authority to raise and support armies and make rules and
regulations for their governance is challenged.’" Id., at 447, citing Goldman v. Weinberger, 475 U.S. 503,
508 (1986). There was no American statute that prescribed the "service-connected" standard, even at the
time O’Callahan was decided, the latter decision predicated instead on the Fifth and Six Amendments in the
Bill of Rights. In the Philippine setting, "service-connected" is a standard duly legislated and enacted by
Congress under Rep. Act No. 7055. My views in this Opinion are thus conformable even to the Solorio
decision.

27 Section 1, Rep. Act No. 7055. Emphasis supplied.

28 Concurring Opinion, J. Carpio, infra.

29 See Article 95, Com. Act No. 408, as amended.

30 Id.

31"The words ‘a design, a determination, to kill, distinctly formed in the mind’ in an instruction, imply
deliberation. ‘xxx The word ‘determination in this instruction is not used in any technical sense; in fact, it has
no technical sense in which it means less than it does in popular signification. Webster defines it to be a
‘decision of a question in the mind; firm resolution; settled purpose.’ Can it be said that a question can be
decided, a wavering resolution made firm, or a hesitating purpose settled without deliberation?" 12 Words
and Phrases (1954 ed.), p. 478-479; citing State v. Ah Mook, 12 Nev. 369, 390.

32 1 Bouvier’s Law Dictionary (8th ed., 1914), p. 858.

33 G.R. No. L-59603, 29 April 1987, 149 SCRA 305.

34 Id. at 316. Justice Vicente Mendoza’s declaration in Iglesia Ni Cristo v. Court of Appeals, 328 Phil. 893
(1996), is worth mentioning. "Indeed, I cannot understand why, after ruling that the valuation of property in
eminent domain is essentially a judicial function which cannot be vested in administrative agencies, this
Court should be willing to leave the valuation of that priceless commodity — expression, whether by means
of motion picture or television — to administrative agencies with only occasional review by the courts. The
trend may be toward greater delegation of judicial authority to administrative agencies in matters requiring
technical knowledge and as a means of relieving courts of cases which such agencies can very well attend
to. There is no justification, however, for such delegation in the area of our essential freedoms, particularly
freedom of expression, where "only a judicial determination in an adversary proceeding [can] ensure the
necessary sensitivity to freedom of expression." Id. at 962, J. Mendoza, Separate Opinion.

35 This proviso was enacted as an amendment to Com. Act No. 408 by Rep. Act No. 242 in 1948.

36 A Manual for Courts-Martial: Armed Forces of the Philippines, p. 181.

37 See note 27.

38 Record of the Senate, 21 May 1990, p. 840.

39 3 Phil. 58 (1903).

40 Id. at 66.

41 3 Phil.244 (1904).

42 94 Phil. 477 (1954).

43 Id. at 479-480.

44 Supra note 9.

45 G.R. No. 44205, 16 February 1993, 219 SCRA 1.

46 G.R. 95136, 3 October 1991, 202 SCRA 405.

47
Concurring Opinion of Justice Callejo, Sr., infra; citing U.S. v. Weldon, 7 M.J. 938 (1979).

48 Id. citing U.S. v. Taylor, 23 M.J. 341 (1987).

49"The provisions of both the Civil Code and the Rules of Court regarding the relationship between the
criminal and civil liabilities of an accused do not contemplate administrative actions against government
officers and employees. While there may be specific statutes making criminal guilt indispensable to the
dismissal or any other form of administrative punishment for certain public employees, and there have been
instances when the court itself did order reinstatement as a consequence of absolute acquittal, as a rule xxx
the administrative determination as to an employee’s dismissal or punishment in any other way is not
predicated in any respect on the result of corresponding criminal proceedings." Rice and Corn
Administration v. Silao, G.R. No. L-25294, 21 August 1980, 99 SCRA 200, 207-208. "[T]he criminal action is
separate and distinct from the administrative case. And, if only for that reason, so is administrative liability
separate and distinct from penal liability. Hence, probation only affects the criminal aspect of the case, not
its administrative dimension." Samalio v. Court of Appeals, G.R. No. 140079, 31 March 2005, 454 SCRA
462, 475.
 5. G.R. No. 177000

NESTOR GUELOS, RODRIGO GUELOS, GIL CARANDANG and SP02 ALFREDO CARANDANG y
PRESCILLA, Petitioners
vs.
PEOPLE OF THE PHILIPPINES, Respondent

DECISION

REYES, J.:

Before this Court is a petition for review on certiorari1 under Rule 45 of the Rules of Court assailing the
Decision2 dated November 17, 2006 of the Court of Appeals (CA) in CA-G.R. CR No. 27021, affirming in toto the
conviction of Nestor Guelos (Nestor), Rodrigo Guelos (Rodrigo), Gil Carandang (Gil) and Senior Police Officer 2
Alfredo Carandang y Prescilla (Alfredo) (petitioners) rendered by the Regional Trial Court (RTC) of Tanauan City,
Batangas, Branch 83 in its Decision3 dated January 24, 2003 in Criminal Cases Nos. P-204 and P-205. The CA
Resolution4 dated March 6, 2007 denied the motion for reconsideration thereof.

The Facts

On December 5, 1995, two separate Informations5 were filed with the RTC against the petitioners for Direct Assault
Upon an Agent of a Person in Authority with Homicide, defined and penalized under Articles 148 and 249, in relation
to Article 48, of the Revised Penal Code (RPC). The accusatory portions of the two Informations state:

Criminal Case No. P-204

That on or about the 4th day of June, 1995, at about 5:00 o'clock in the afternoon, at Barangay Boot, Municipality of
Tanauan, Province of Batangas, Philippines, and within the jurisdiction of this Honorable Court, the above-named
accused, conspiring and confederating together, acting in common accord and mutually helping one another,
[Nestor]' while armed with an Armalite Rifle, with intent to kill and without any justifiable cause, did then and there
wilfully, unlawfully and feloniously attack, assault and shoot with the said firearm one SP02 Estelito Andaya, a
bonafide member of the Philippine National Police assigned at Tanauan Police Station, while engaged in the
performance of his official duties as peace officer, and while the latter is being held from the back by [Gil] and other
companions, whose identities and whereabouts are still unknown, thereby hitting and inflicting· upon the said SP02
Estelito Andaya gunshot wounds on his body which caused his instantaneous death.

Contrary to law. 6

Criminal Case No. P-205

That on or about the 4th day of June, 1995, at about 5:00 o'clock in the afternoon, at Barangay Boot, Municipality of
Tanauan, Province of Batangas, Philippines, and within the jurisdiction of this Honorable Court, the above-named
accused, conspiring and confederating together, acting in common accord and mutually helping each other, [Nestor]
while armed with an Armalite Rifle, with intent to kill and without any justifiable cause, did then and there wilfully,
unlawfully and feloniously attack, assault and shoot with the said firearm, one P/Chief Inspector Rolando M.
Camacho, a bonafide member of the Philippine National Police and concurrently the Chief of Police of Tanauan,
Batangas, while engaged in the performance of his official duties as peace officer, and while the latter is being held
at the back including his two arms by [Alfredo] and the barrel of his armalite rifle is being held by [Rodrigo], thereby
hitting and inflicting upon the said P/Chief Inspector Rolando M. Camacho gunshot wounds on his head which
caused his instantaneous death.

Contrary to law. 7

The petitioners pleaded not guilty to the foregoing charges. Thereafter, the joint trial of the two cases ensued. The
prosecution and the defense presented their respective versions of the case. 8
The prosecution presented the following witnesses: P02 Edgardo Carandang (P02 Carandang), Alex Malabanan,
P02 Pastor Platon Castillo, Ruel Ramos, Ricardo Jordan, SPOl Anacleto Garcia (SPOl Garcia), Dr. Olga Bausa,
Rowena Rios, Police Inspector Loma Tria, Dr. Hermogenes Corachea, P03 Eugenio Llarina, Marilou Reyes
Camacho and Teodora Torres Andaya. 9

On the other hand, the defense presented: Cancio Angulo (Angulo), Juana Precilla and herein petitioners Nestor,
Alfredo and Rodrigo as its witnesses.

The version of the prosecution is as follows:

In the morning of June 4, 1995, Police Chief Inspector Rolando M. Camacho (P/C Insp. Camacho), SP02 Estelito
Andaya (SP02 Andaya), P02 Carandang and SPO 1 Garcia set off for Sitio Mahabang Buhangin in Tanauan,
Batangas to conduct their routine as peace officers of the area. It was already 10:00 a.m. when they left Tanauan
Police Station on board a patrol car driven by SPO 1 Garcia. While they were in Barangay Gonzales waiting for a
boat that would bring them to Sitio Mahabang Buhangin, they heard successive gunshots apparently coming from
Barangay Boot. P/C Insp. Camacho then decided to proceed to Barangay Boot to check and to apprehend those
who were illegally discharging their firearms. Upon arrival at the place, they were invited for lunch in the house of
Angulo. Thereafter, they stayed at the house of the incumbent Barangay Captain, Rafael Gonzales. 10

At around 2:45 p.m., P/C Insp. Camacho instructed SP02 Andaya and P02 Carandang to join the religious
procession to monitor those who will indiscriminately fire guns. As they were moving on with the procession, they
heard successive gunshots, which they determined to have emanated from the backyard of Silveria Guelos
(Silveria). They went back to the house of the Barangay Captain to report to P/C Insp. Camacho what they found
out. Acting upon their report, P/C Insp. Camacho decided to go with them to the place of Silveria. In going to the
house, they rode a passenger jeepney in order to conceal their purpose. SPOl Garcia drove their patrol car and
followed them. 11

Upon reaching the place of Silveria who let them in, P/C Insp. Camacho, P02 Carandang and SP02 Andaya then
proceeded to the back of the house where they saw around 15 persons drinking liquor. They also noticed empty
shells of armalite rifle scattered on the ground. P/C Insp. Camacho then introduced himself as the Chief of Tanauan
Police Station and told the group that he and his men were verifying who fired the shots. Someone from the group of
drinking men asked him: "Who are you going to pick-up here?" Before P/C Insp. Camacho was able to respond to
the taunting question, P02 Carandang pointed to him the "empty shells" near the comfort room located at the right
side from where the group was drinking. Consequently, P/C Insp. Camacho instructed him to collect the scattered
empty shells. 12

When P02 Carandang was about to follow P/C Insp. Camacho's orders, the former noticed a person, whom he
identified as Nestor, wearing a white sando and blue walking shorts stand up. While P02 Carandang was collecting
the empty shells, somebody hit him on his nape which caused him to drop his armalite. When he tried to retrieve his
firearm, someone hit his hand. 13

As he was trying to stand up, he saw Alfredo tightly holding (yapos-yapos) P/C Insp. Camacho from behind while
Rodrigo grabbed the former's baby armalite. As soon as P02 Carandang was able to stand up, he was hit by Nestor
on his left jaw, even as he received a blow to his left eye. Thereafter, as P/C Insp. Camacho was in a helpless and
defenseless position, he was shot by Nestor causing him to fall to the ground and later die. 14

While P02 Carandang was retreating, he saw SP02 Andaya being tightly held by the neck by Gil. He then saw
Nestor shoot at SP02 Andaya, who then fell to the ground and died. 15

P02 Carandang retreated and started to run but Nestor went after him and shot at him. It was at this juncture when
SPO 1 Garcia arrived at the scene and returned fire at Nestor, hitting the latter with three out of six shots. 16

For the defense, petitioners Nestor, Alfredo and Rodrigo took the witness stand and denied the accusations. They
narrated a different story. 17

Nestor testified that at around 3:00 p.m. on June 4, 1995, he was inside the house of his mother when he heard
several gunshots. He told his children to lie flat on the floor until it stopped. Thereafter, he went out of the house and
saw four persons lying on the ground; he identified two of them as Gil and Alfredo. He also saw an old man standing
nearby and asked the latter what happened, but the old man did not reply. Just when he heard that people were
rushing towards his mother's house, the old man asked him to pick up the gun laying on the ground. He followed
and picked up the same with the intention of surrendering it to a police officer but as he was on his way towards the
gate, SPO 1 Garcia shot him instead. He was hit three times: on his stomach, his left side, and on his left hand. 18

Alfredo, on the other hand, testified that as they were drinking, P/C Insp. Camacho together with two other police
officers came. They entered one after the other but P/C Insp. Camacho came in first. They were wearing civilian
clothes, although he noticed that P/C Insp. Camacho was also wearing a vest where extra ammunition-magazines
were kept. P/C Insp. Camacho was armed with a baby-armalite, while his companions were carrying M-16 rifles.
The police officers asked who among them fired a gun to which somebody answered, "We do not know who fired
the shot." At this point, Alfredo introduced himself as a fellow-member of the Philippine National Police (PNP); he
even saluted P/C lnsp. Camacho, but the latter merely ignored the former. Instead, P/C Insp. Camacho pointed the
nozzle of his baby armalite at Alfredo's stomach and used it to lift hist-shirt, as the former asked the latter if he had a
gun. Alfredo answered that he had none. While P/C Insp. Camacho was frisking three other men, Rodrigo
approached him to ask if he can be of help to the former. P/C Insp. Camacho did not answer Rodrigo's query.
Rather, while he was in "port-hand position," P/C Insp. Camacho pushed Rodrigo with his firearm; the latter was out-
balanced and fell on his back. While P/C Insp. Camacho was pushing Rodrigo with the use of the nozzle of his
"armalite rifle", the latter swiped the said firearm as he told the former, "Baka pumutok iyan." Thereupon, the firearm
of P/C Insp. Camacho fired; a bullet hit Alfredo's thigh. Thereafter, the latter lost consciousness and awakened only
when being transported to a nearby hospital. 19

Rodrigo testified that in the afternoon of June 4, 1995, he was watching a religious procession in front of the gate of
his parents' house when P/C Insp. Camacho and two others, all in civilian clothes and each bearing a long firearm,
entered the premises of his parents' house. The group went directly to the area where people were drinking liquor.
P/C Insp. Camacho introduced himself as the Chief of Police of Tanauan, and asked who among them fired a gun.
He poked his gun at the people there and then started frisking some of them. Alfredo stood up and introduced
himself as a fellow-member of the PNP, to which P/C Insp. Camacho responded by poking his gun at the former,
asking him ifhe had a gun. Answering "none," Alfredo pulled-up his t-shirt to show he had no gun. His t-shirt was
lifted by P/C Insp. Camacho with the nozzle of his gun. Rodrigo approached P/C Insp. Camacho and offered to
assist the latter, but instead, P/C Insp. Camacho pointed the gun at his face. Rodrigo swayed the gun away from his
face, but he was, in tum, pushed back by P/C Insp. Camacho with the use of the barrel of the same gun causing him
to fall to the ground. Then he heard several gunshots, so he covered his head with his hands. When the gunshots
stopped, he saw two persons lying, one by his left side and the other, by his right. He then ran for help but on his
way out of the premises, he saw a wounded person whom he offered to help. The wounded person ignored him and
continued to walk towards a jeepney. Rodrigo proceeded to approach a Barangay Tanod and asked him to report
the incident to the Barangay Captain. Soon thereafter, the Barangay Captain arrived; police officers from Tanauan
also came and Rodrigo was invited to the Police Station for investigation.20

On January 24, 2003, the RTC issued a Joint Decision,21 the dispositive portion of which reads:

WHEREFORE, in Criminal Case No. P-204, this Court finds accused [NESTOR] and [GIL] GUILTY BEYOND
REASONABLE DOUBT of Direct Assault Upon an Agent of a Person in Authority with Homicide, defined and
penalized under Articles 148 and 249, in relation to Article 48, of the [RPC], for killing [SP02 Andaya], and hereby
sentences each of the accused to suffer the penalty of eleven (11) years of prision correccional maximum, as
minimum, up to eighteen (18) years of reclusion temporal maximum, as maximum, and a fine of One Thousand
Pesos (Phpl,000.00). The accused are directed to pay the heirs of victim [SP02 Andaya] an indemnity of Fifty
Thousand Pesos (Php50,000.00), actual damages in the amount of One Million Pesos (Phpl,000,000.00), and moral
damages of Fifty Thousand Pesos (Php50,000.00).

In Criminal Case No. P-205, the Court finds accused [NESTOR], [RODRIGO] and [ALFREDO] GUILTY BEYOND
REASONABLE DOUBT of Direct Assault Upon an Agent of a Person in Authority with Homicide, defined and
penalized under Articles 148 and 249, in relation to Article 48, of the [RPC], for killing [P/C Insp. Camacho], and
hereby sentences each of the accused to suffer the penalty of eleven (11) years of prision correccional maximum,
as minimum, up to eighteen (18) years of reclusion temporal maximum, as maximum, and to pay a fine of One
Thousand Pesos (Phpl,000.00) each. The accused are directed to pay the heirs of victim [P/C Insp. Camacho] an
indemnity of Fifty Thousand Pesos (Php50,000.00), actual damages in the amount of One Million Six Hundred
Thousand Pesos (Phpl,600,000.00), and moral damages of Fifty Thousand Pesos (Php50,000.00).
SO ORDERED.22

The RTC found that between the conflicting versions of the parties, that of the prosecution is more credible; the
positive declarations of the police officers who testified for the prosecution, particularly that of eyewitness P02
Carandang, were not impeached.23 Further, the RTC did not find any reason for any of the prosecution witnesses to
falsely testify against the accused. The trial court observed that said witnesses, with special reference to P02
Carandang, testified in a straightforward manner and showed signs of candor, as compared to the accused, who
were smart-alecky and did not sound truthful. 24 The petitioners appealed to the CA.

On November 17, 2006, the CA affirmed in toto the petitioners' conviction in its Decision25 as follows:

WHEREFORE, the Decision appealed from is hereby AFFIRMED in toto.

SO ORDERED.26

Hence, this petition for review with the following assignment of errors:

A. THE CA GRAVELY ERRED IN RELYING ON THE UNSUBSTANTIATED TESTIMONY OF THE

ALLEGED EYEWITNESS P02 CARANDANG AND HOLDING THE PETITIONERS GUILTY OF THE CRIME
CHARGED.

B. THE CA ERRED IN AFFIRMING IN TOTO THE JUDGMENT OF THE LOWER COURT

NOTWITHSTANDING THE GLARING INSUFFICIENCY OF EVIDENCE TO WARRANT THE CONVICTION
OF THE PETITIONERS.

C. THE CA GRAVELY ERRED IN HOLDING THAT THERE IS CONSPIRACY BETWEEN THE

PETITIONERS DESPITE FAILURE OF THE PROSECUTION TO PROVE THE SAME.27

Forthwith, the petitioners fault the CA for affirming their conviction, contending that the testimonies of the
prosecution witnesses were uncorroborated by evidence sufficient to establish the petitioners' guilt beyond
reasonable doubt. Specifically, the petitioners allege the following, to wit:

1. There is no direct assault of a person in authority to speak of because the group of P/C Insp. Camacho was not in
the performance of their duties. The prosecution failed to present the alleged mission order supporting the
intelligence operation conducted by P/C Insp. Camacho and his men in Barangay Boot. Further, while the police
officers were in civilian attire (shorts, slippers and t-shirts) to go undercover, they were carrying rifles that were not
concealed;28

2. The injuries suffered by P02 Carandang, as a result of the assault upon his person while he was in the act of
collecting the empty bullet shells, are also unsupported by evidence. The trial court simply took the testimony of P02
Carandang as the "biblical truth;"29 and

3. The narration of P02 Carandang on how P/C Insp. Camacho and SP02 Andaya were killed cannot stand the test
of logic. He could not have possibly witnessed the entire event at the precise moment that he was also assaulted
and injured.30

Notably, in their Reply,31 the petitioners incorporated a motion for new trial based on alleged new and material
evidence impugning the credibility of P02 Carandang. They averred that in the case for Direct Assault with
Attempted Homicide which P02 Carandang also filed against Nestor, docketed as Criminal Case No. 95-401 and
pending before the Municipal Trial Court (MTC) of Tanauan, Batangas, his testimony therein given from October 10,
2007 to July 30, 2008 was different from his testimony in the case at bar. 32

Ruling of the Court

It is clear that the petitioners basically raise only questions of fact. Nonetheless, the Court gave due course to the
instant petition due to the following reasons:
Firstly, pursuant to the settled rule that in a criminal case an appeal throws the whole case open for review, 33 the
Court, however, finds that this case actually presents a question of law; specifically, on whether or not the
constitutional right of the accused to be informed of the nature and cause of the accusation against them was
properly observed.

Secondly, the petitioners, in the Reply, invite the Court's attention to the subsequent testimony of P02 Carandang in
the later case filed against Nestor. The petitioners assert that said testimony should be considered as new and
1âwphi1

material evidence which thereby makes the findings of the trial court in the instant case as manifestly mistaken,
absurd or impossible. Thus, the petitioners moved for a new trial on the ground of alleged newly discovered
evidence without, however, necessarily withdrawing their petition.

At the outset, the petitioners' motion for new trial is denied.

Clearly, the Rules of Court proscribe the availment of the remedy of new trial on the ground of newly discovered
evidence at this stage of appeal. Section 1 of Rule 121 states:

At any time before a judgment of conviction becomes final, the court may, on motion of the accused or at its own
instance but with the consent of the accused, grant a new trial or reconsideration.

Under Section 14 of Rule 124, a motion for new trial on the ground of newly discovered evidence may be filed at any
time after the appeal from the lower court has been perfected and before the judgment of the CA convicting the
appellant becomes final. Further, Rule 45, Section 1 clearly provides that a motion for new trial is not among the
remedies which may be entertained together with a petition for appeal on certiorari.

More importantly, the alleged newly discovered evidence is not worthy of the Court's consideration.

The petitioners allege that in the MTC proceedings, P02 Carandang failed to positively identify who actually hit him
and/or the persons involved in the killing of P/C Insp. Camacho and SP02 Andaya which is a complete tum-around
from his testimony in the case at bar where he positively identified the petitioners as the perpetrators. At any rate,
aside from this alleged glaring inconsistency of P02 Carandang's testimony, said subsequent testimony is marred by
inconsistencies in itself For instance, in his cross-examination on May 14, 2008, he stated that when he came to his
full consciousness after being unconscious or dizzy for about two minutes, he saw P/C Insp. Camacho and SP02
Andaya lying down; then, during his re-cross examination on July 30, 2008, he stated that when he regained
consciousness after being unconscious or dizzy for about five minutes, he did not see where P/C Insp. Camacho or
his other teammates were. Still, on numerous occasions, he failed to categorically answer questions as he could not
recall. Considering the value of P02 Carandang's testimony, he being the only eyewitness to the said fateful event,
there would have been no sufficient evidence to prove the guilt of the petitioners.34

However, the Court cannot agree with the petitioners' contention that the testimony of P02 Carandang before the
MTC effectively cast doubt upon his previous testimony or makes it a falsity. The MTC testimony was given after 10
years from the time P02 Carandang testified in the case at bar. Considering the length of time that had elapsed and
the frailty of human memory, the Court gives more credence to P02 Carandang's testimony in the instant case
which was given after a year and 10 months from the incident testified upon. In fact, the drama. of the fateful
incident appeared so fresh to P02 Carandang that in the course of his direct examination on April 22, 1997 and
while he was demonstrating how Alfredo embraced P/C Insp. Camacho, he became 'emotional' when asked about
the next thing that happened to P/C Insp. Camacho.35

Jurisprudence dictates that even if a witness says that what he had previously declared is false and that what he
now says is true is not sufficient ground to render the previous testimony as false. No such reasoning has ever
crystallized into a rule of credibility. The rule is that a witness may be impeached by a previous contradictory
statement not that a previous statement is presumed to be false merely because a witness now says that the same
is not true. Indeed, it is a dangerous rule to set aside a testimony which has been solemnly taken before a court of
justice in an open and free trial and under conditions precisely sought to discourage and forestall falsehood simply
because one of the witnesses who had given the testimony later on changed his mind. Such a rule will make solemn
trials a mockery and place the investigation of the truth at the mercy of unscrupulous witnesses.36

Thus, the Court finds no reason to give merit to the petitioners' contentions of alleged new evidence.
In Sison v. People of the Philippines,37 the Court has held that:

[W]hen the decision hinges on the credibility of witnesses and their respective testimonies, the trial court's
observations and conclusions deserve great respect and are often accorded finality, unless there appears in the
record some fact or circumstance of weight which the lower court may have overlooked, misunderstood or
misappreciated and which, if properly considered, would alter the result of the case. The trial judge enjoys the
advantage of observing the witness' deportment and manner of testifying, x x x all of which are useful aids for an
accurate determination of a witness' honesty and sincerity. The trial judge, therefore, can better determine if such
witness were telling the truth, being in the ideal position to weigh conflicting testimonies. Unless certain facts of
substance and value were overlooked which, if considered, might affect the result of the case, its assessment must
be respected for it had the opportunity to observe the conduct and demeanor of the witnesses while testifying and
detect if they were lying. The rule finds an even more stringent application where said findings are sustained by the
[CA].38

For this reason alone, the petition must fail.

However, the Court cannot totally affirm the rulings of the courts below. As forthwith stated, an appeal in a criminal
case opens the entire case for review; the Court can correct errors unassigned in the appeal. The Court finds that
the Informations in this case failed to allege all the elements which constitute the crime charged.

The petitioners are being charged with the complex crime of Direct Assault Upon an Agent of a Person in Authority
with Homicide, defined and penalized under Articles 148 and 249, in relation to Article 48, of the RPC.

The RPC provides:

Art. 148. Direct assaults. -Any person or persons who, without a public uprising, shall employ force or intimidation
for the attainment of any of the purpose enumerated in defining the crimes of rebellion and sedition, or shall attack,
employ force, or seriously intimidate or resist any person in authority or any of his agents, while engaged in the
performance of official duties, or on occasion of such performance, shall suffer the penalty of prision correccional in
its medium and maximum periods and a fine not exceeding ₱l,000.00 pesos, when the assault is committed with a
weapon or when the offender is a public officer or employee, or when the offender lays hands upon a person in
authority. If none of these circumstances be present, the penalty of prision correccional in its minimum period and a
fine not exceeding ₱500.00 pesos shall be imposed.

Art. 249. Homicide. - Any person who, not falling within the provisions of Article 246, shall kill another without the
attendance of any of the circumstances enumerated in the next preceding article, shall be deemed guilty of homicide
and be punished by reclusion temporal.

Art. 48. Penalty for complex crimes. - When a single act constitutes two or more grave or less grave felonies, or
when an offense is a necessary means for committing the other, the penalty for the most serious crime shall be
imposed, the same to be applied in its maximum period.

While the elements constituting the crime of Homicide were properly alleged in the two Informations and were duly
established in the trial, the said Informations, however, failed to allege all the elements constitutive of the applicable
form of direct assault. To be more specific, the Informations do not allege that the offenders/petitioners knew that
the ones they were assaulting were agents of a person in authority, in the exercise of their duty.

Direct assault, a crime against public order, may be committed in two ways: first, by "any person or persons who,
without a public uprising, shall employ force or intimidation for the attainment of any of the purposes enumerated in
defining the crimes of rebellion and sedition"; and second, by any person or persons who, without a public uprising,
"shall attack, employ force, or seriously intimidate or resist any person in authority or any of his agents, while
engaged in the performance of official duties, or on occasion of such performance."39 (Citation omitted)

Indubitably, the instant case falls under the second form of direct assault. The following elements must be present,
to wit:
1. That the offender (a) makes an attack, (b) employs force, (c) makes a serious intimidation, or (d) makes a serious
resistance;

2. That the person assaulted is a person in authority or his agent;

3. That at the time of the assault, the person in authority or his agent (a) is engaged in the actual performance of
official duties, or (b) is assaulted by reason of the past performance of official duties;

4. That the offender knows that the one he is assaulting is a person in authority or his agent in the exercise
of his duties; and

5. That there is no public uprising.

In the instant case, the Informations40 alleged the following, to wit:

1. That on or about the 4th day of June 1995, at about 5:00 p.m., in Barangay Boot, Municipality of Tanauan,
Province of Batangas, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused,
conspiring and confederating together, acting in common accord and mutually helping one another, Nestor while
armed with an armalite rifle, with intent to kill and without any justifiable cause, did then and there willfully, unlawfully
and feloniously attack, assault and shoot with the said firearm the victims, SP02 Andaya/P/C Insp. Camacho;

2. That the said victims are bona fide members of the PNP assigned at Tanauan Police Station, and one of them
was the current Chief of Police ofTanauan, Batangas; and

3. That at the time of the incident, they were engaged in the performance of their official duties.

In the course of the trial, the evidence presented sufficiently established the foregoing allegations including the fact
that the petitioners came to know that the victims were agents of a person in authority, as the latter introduced
themselves to be members of the PNP.

Nevertheless, the establishment of the fact that the petitioners came to know that the victims were agents of a
person in authority cannot cure the lack of allegation in the Informations that such fact was known to the accused
which renders the same defective. In addition, neither can this fact be considered as a generic aggravating
circumstance under paragraph 3 of Article 14 of the RPC for acts committed with insult or in disregard of the respect
due the offended party on account of his rank to justify the imposition of an increased penalty against the petitioners.

As the Court held in People v. Rodil:41

While the evidence definitely demonstrated that appellant knew because the victim, who was in civilian clothing, told
him that he was an agent of a person in authority, he cannot be convicted of the complex crime of homicide with
assault upon an agent of a person in authority, for the simple reason that the information does not allege the fact
that the accused then knew that, before or at the time of the assault, the victim was an agent of a person in
authority. The information simply alleges that appellant did "attack and stab PC Lt. Guillermo Masana while the latter
was in the performance of his official duties, ... " Such an allegation cannot be an adequate substitute for the
essential averment to justify a conviction of the complex crime, which necessarily requires the imposition of the
maximum period of the penalty prescribed for the graver offense. Like a qualifying circumstance, such knowledge
must be expressly and specifically averred in the information; otherwise, in the absence of such allegation, the
required knowledge, like a qualifying circumstance, although proven, would only be appreciated as a generic
aggravating circumstance. Applying this principle, the attack on the victim, who was known to the appellant as a
peace officer, could be considered only as aggravating, being "in contempt of/or with insult to public authorities"
(Par. [2], Art. XIV of the [RPC], or as an "insult or in disregard of the respect due the offended party on account of
his rank, ... "(Par. 3, Art. XIV, [RPC]).

It is essential that the accused must have knowledge that the person attacked was a person in authority or his agent
in the exercise of his duties, because the accused must have the intention to offend, injure, or assault the offended
party as a person in authority or agent of a person in authority.42
"The Constitution mandates that the accused, in all criminal prosecutions, shall enjoy the right to be informed of the
nature and cause of the accusation against him. From this fundamental precept proceeds the rule that the accused
may be convicted only of the crime with which he is charged. "43 This right is accorded by the Constitution so that the
accused can prepare an adequate defense against the charge against him. Convicting him of a ground not alleged
while he is concentrating on his defense against the ground alleged would plainly be unfair and underhanded. 44 It
must be noted that said constitutional right is implemented by the process of arraignment45 in which the allegations
in the document charging an offense is read and made known to the accused. Accordingly, a Complaint or
Information which does not contain all the elements constituting the crime charged cannot serve as a means by
which said constitutional requirement is satisfied. Corollarily, the fact that all the elements of the crime were duly
proven in trial cannot cure the defect of a Complaint or Information to serve its constitutional purpose.

Pursuant to the said constitutional precept, the 2000 Revised Rules of Criminal Procedure requires that every
element of the offense must be alleged in the complaint or information so as to enable the accused to suitably
prepare his defense. Corollarily, qualifying circumstances or generic aggravating circumstances will not be
appreciated by the Court unless alleged in the Information. This requirement is now laid down in Sections 8 and
9 of Rule 110, to wit:

SEC. 8. Designation of the offense. - The complaint or information shall state the designation of the offense given by
the statute, aver the acts or omissions constituting the offense, and specify its qualifying and aggravating
circumstances. If there is no designation of the offense, reference shall be made to the section or subsection of the
statute punishing it.

SEC. 9. Cause of the accusation. - The acts or om1ss1ons complained of as constituting the offense and the
qualifying and aggravating circumstances must be stated in ordinary and concise language and not necessarily in
the language used in the statute but in terms sufficient to enable a person of common understanding to know what
offense is being charged as well as its qualifying and aggravating circumstances and for the court to pronounce
judgment.

The 2000 Revised Rules of Criminal Procedure explicitly mandates that qualifying and aggravating circumstances
must be stated in ordinary and concise language in the complaint or information. When the law or rules specify
certain circumstances that can aggravate an offense or that would attach to such offense a greater penalty than that
ordinarily prescribed, such circumstances must be both alleged and proven in order to justify the imposition of the
increased penalty.46 Due to such requirement being pro reo, the Court has authorized its retroactive application in
favor of even those charged with felonies committed prior to December 1, 2000 (i.e., the date of the effectivity of the
2000 Revised Rules of Criminal Procedure that embodied the requirement).47

In People v. Flores, Jr., 48 as reiterated in the more recent cases of People v. Pangilinan49 and People v.
Dadulla,50 the Court ruled that the constitutional right of the accused to be informed of the nature and cause of the
accusation against him cannot be waived for reasons of public policy. Hence, it is imperative that the complaint or
information filed against the accused be complete to meet its objectives. As such, an indictment must fully state the
elements of the specific offense alleged to have been committed. For an accused cannot be convicted of an offense,
even if duly proven, unless it is alleged or necessarily included in the complaint or information.51 In other words, the
complaint must contain a specific allegation of every fact and circumstance necessary to constitute the crime
charged, the accused being presumed to have no independent knowledge of the facts that constitute the
offense. 52 Under Section 9 of Rule 117 of the 2000 Revised Rules on Criminal Procedure, an accused's failure to
raise an objection to the insufficiency or defect in the information would not amount to a waiver of any objection
based on said ground or irregularity.

Section 9 of Rule 117 of the 2000 Revised Rules on Criminal procedure reads:

Sec. 9. Failure to move to quash or to allege any ground therefor.-The failure of the accused to assert any ground of
a motion to quash before he pleads to the complaint or information, either because he did not file a motion to quash
or failed to allege the same in said motion, shall be deemed a waiver of any objections EXCEPT THOSE based in
the grounds provided for in paragraphs (a), (b), (g), and (i) of Section 3 of this Rule.

Indeed, the foregoing provision provides that if an accused fails to assert all the grounds available to him under
Section 3 of Rule 117 in his motion to quash, or if he, altogether, fails to file i motion a quash - any I objection based
on the ground or grounds he failed the raise through a motion to quash shall be deemed waived, except the
following, thus:

SEC. 3. Grounds. - x x x: I

(a) That the facts charged do not constitute an offense;

(b) That the court trying the case has no jurisdiction over the offense charged;

x x xx !

(g) That the criminal action or liability has been extinguished; [and] x x xx

(i) That the accused has been previously convicted or acquitted of the offense charged, or the case
against him was dismissed or otherwise terminated without his express consent.

Therefore, the petitioners can only be convicted of the crime of Homicide instead of the complex crime of Direct
Assault Upon an Agent of a Person in Authority with Homicide due to the simple reason that the Informations do not
sufficiently charge the latter.

[T]he real nature of the criminal charge is determined not from the caption or preamble of the information nor from
the specification of the provision of law alleged to have been violated, they being conclusions of law, but by the
actual recital of facts in the complaint or information ... it is not the technical name given by the Fiscal appearing in
the title of the information that determines the character of the crime but the facts alleged in the body of the
Information. 53

Nevertheless, by reason of the fact that the presence of the aggravating circumstance of acts committed with insult
or in disregard of the respect due the offended party on account of his rank was proven in the course of the trial,
exemplary damages should be awarded in each case in addition to such other damages that were already awarded
by the courts below. Exemplary damages are justified regardless of whether or not the generic or qualifying
aggravating circumstances are alleged in the information. The grant in this regard should be in the sum of
₱30,000.00.54 In the case of People v. Catubig,55 the Court elucidated on the nature of exemplary damages, thus:

Also known as "punitive" or "vindictive" damages, exemplary or corrective damages are intended to serve as a
deterrent to serious wrong doings, and as a vindication of undue sufferings and wanton invasion of the rights of an
injured or a punishment for those guilty of outrageous conduct. x x x In common law, there is preference in the use
of exemplary damages when the award is to account for injury to feelings and for the sense of indignity and
humiliation suffered by a person as a result of an injury that has been maliciously and wantonly inflicted, the theory
being that there should be compensation for the hurt caused by the highly reprehensible conduct of the defendant -
associated with such circumstances as willfulness, wantonness, malice, gross negligence or recklessness,
oppression, insult or fraud or gross fraud - that intensifies the injury. The terms punitive or vindictive damages are
often used to refer to those species of damages that may be awarded against a person to punish him for his
outrageous conduct. In either case, these damages are intended in good measure to deter the wrongdoer and
others like him from similar conduct in the future. 56 (Citations omitted and emphasis ours)

Accordingly, since the petitioners are all found to be principally liable for the crimes committed as conspiracy was
duly proven, exemplary damages in the amount of ₱30,000.00 should be awarded against each of them.

WHEREFORE, the judgment is hereby AFFIRMED with MODIFICATION. Petitioners Nestor Guelos, Rodrigo
Guelos, Gil Carandang and SP02 Alfredo Carandang y Prescilla are hereby found GUILTY of Homicide and
sentenced to an indeterminate penalty of EIGHT (8) YEARS and ONE (I) DAY of prision mayor, as minimum, to
FOURTEEN (14) YEARS and ONE (1) DAY of reclusion temporal, as maximum. The fine of ₱ l,000.00 is
DELETED. In addition to the amount of damages and civil indemnity that were already awarded by the courts below
to the respective heirs of Police Chief Inspector Rolando Camacho and Senior Police Officer 2 Estelito Andaya,
each of the petitioners are also directed to pay the amount of ₱30,000.00 as exemplary damages to each of the
victims.
SO ORDERED.

BIENVENIDO L. REYES
Associate Justice

WE CONCUR:

PRESBITERO J. VELASCO, JR.

Associate Justice
Chairperson

LUCAS P. BERSAMIN FRANCIS H. JARDELEZA

Associate Justice Associate Justice

NOEL GIMENEZ TIJAM

Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision had been reached in consultation before the case was assigned
to the writer of the opinion of the Court’s Division.

PRESBITERO J. VELASCO, JR.

Associate Justice
Chairperson, Third Division

CERTIFICATION

Pursuant to the Section 13, Article VIII of the Constitution and the Division Chairperson’s Attestation, I certify that
the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer
of the opinion of the Court’s Division.

MARIA LOURDES P.A. SERENO

Chief Justice

Footnotes

1
Rollo, pp. 11-39.

2
Penned by Associate Justice Andres B. Reyes Jr., with Associate Justices Hakim S. Abdulwahid and
Mariflor P. Punzalan Castillo concurring; id. at 42-59.

3
Rendered by Judge Voltaire V. Rosales: id. at 76-85.

4
Id. at 62.

5
Id. at 72-73, 74-75.

6
Id. at 72-73.

7
Id. at 74-75.
8
Id. at 77.

9
Id. at 46.

10
Id. at 46-4 7.

11
Id. at 47, 79-80.

12
Id. at 77-78.

13
Id. at 78.

14
Id. at 48.

15
Id.

16
Id. at 78.

17
Id. at 49.

18
TSN, August 28, 2001, pp. 3-9.

19
TSN, August 31, 2000, pp. 9-15.

20
TSN, February 13, 2001, pp. 4-14.

21
Rollo, pp. 76-85.

22
Id. at 85.

23
Id. at 83.

24
Id. at 84.

25
Id. at 42-59.

26
Id. at 59.

27
Id. at 21.

28
Id. at 25-26.

29
Id. at 26-27.

30
Id. at 27-28.

31
Id. at 206-227.

32
Id. at 211-221.

33
People v. Tambis, 582 Phil. 339, 344 (2008).

34
Rollo, pp. 211-221.

35
TSN,April 22, 1997, pp. 11-12.
36
Firaza v. People, 547 Phil. 572, 584 (2007).

37
682 Phil. 608 (2012).

38
Id. at 622, citing People v. Espino, Jr., 577 Phil. 546, 562-563 (2008).

39
People v. Recto, 419 Phil. 674, 689-690 (2001 ).

40
Rollo, pp. 72-73, 74-75

41
196 Phil. 79 (198 l ).

42
Id. at 99- 100.

43
Navarrete v. People, 542 Phil. 496, 504 (2007).

44
People v. Mendigurin, 456 Phil. 328, 344 (2003).

45
See Luman/aw v. Judge Peralta, Jr., 517 Phil. 588, 597 (2006).

46
People v. Corral, 446 Phil. 652, 667-668 (2003).

47
People v. Dadu/la, 657 Phil. 442, 451 (2011 ).

48
442 Phil. 561 (2002).

49
676 Phil. 16 (2011).

50
657 Phil. 442 (2011 ).

51
People v. Flores, Jr., supra note 48, at 569-570.

52
Id. at 572.

Velasco v. Sandiganbayan, et al., 704 Phil. 302, 314 (2013), citing Pilapil v. Sandiganbayan, 293 Phil. 368,
53

378 (1993).

54
People v. Reyes, 714 Phil. 300, 309-310 (2013).

55
416 Phil. 102 (2001).

56
Id. at 118-119.
 6. G.R. No. 202692 November 12, 2014

EDMUND SYDECO y SIONZON, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

VELASCO, JR., J.:

Assailed and sought to be set aside in this petition for review under Rule 45 are the December 28, 2011
Decision1 and July 18, 2012 Resolution2 of the Court of Appeals (CA) in CA-G.R. CR No. 33567. The assailed
issuances affirmed the decision3 of the Regional Trial Court (RTC) of Manila, Branch 12, in Criminal Case Nos. 09-
270107-08 which, in turn, affirmed that of the Metropolitan Trial Court (MeTC) in Manila adjudging petitioner
Edmund Sydeco (Sydeco) guilty of drunk driving and resisting arrest.4

The factual backdrop:

On July 20, 2006, separate Informations, one for Violation of Section 56(f) of Republic Act No. (RA) 41365 and
another, for Violation of Article 151 of the Revised Penal Code (RPC)6 were filed against petitioner Sydeco with the
MeTC in Manila and eventually raffled to Branch 14 of that court. The accusatory portions of the interrelated
informations, docketed as Crim. Case No. 052527-CN for the first offense and Crim. Case No. 052528-CN for the
second, respectively read:

1. Crim. Case No. 052527-CN

That on or about June 11, 2006, in the City of Manila, Philippines, the said accused, being then the driver and owner
of a car, did then and there willfully and unlawfully, drive, manage and operate the same along Roxas Blvd. cor.
Quirino Avenue, Malate, in said city, while under the influence of liquor, in violation of Section 56(f) of Republic Act
4136.

Contrary to law.

2. Crim. Case No. 052528-CN

That on or about June 11, 2006, in the City of Manila, Philippines, the said accused, did then and there willfully and
unlawfully resist and disobey P/INSP Manuel Aguilar, SPO2 Virgilio Paulino, SPO4 Efren Bodino and PO3 Benedict
Cruz III, bonafide member of the Philippine National Police, Malate Police Station-9, duly qualified and appointed,
and while in the actual performance of their official duties as such police officers, by then and there resisting,
shoving and pushing, the hands of said officers while the latter was placing him under arrest for violation of Article
151 of the Revised Penal Code.

Contrary to law.

By Order of September 19, 2006, the MeTC classified the cases as falling under, thus to be governed by, the Rule
on Summary Procedure.

When arraigned, petitioner, as accused, pleaded "Not Guilty" to both charges.

During the trial of the two consolidated cases, the prosecution presented in evidence the oral testimonies of SPO4
Efren Bodino (Bodino),7 PO2 Emanuelle Parungao8 and Ms. Laura Delos Santos,9 plus the documents each
identified while in the witness box, among which was Exh. "A", with sub-markings, the Joint Affidavit of
Arrest10 executed by SPO2 Bodino and two other police officers. The defense’s witnesses, on the other hand,
consisted of Sydeco himself, his wife, Mildred, and Joenilo Pano.

The prosecution’s version of the incident, as summarized in and/or as may be deduced from, the CA decision now
on appeal is as follows:
On or about June 11, 2006, P/Insp. Manuel Aguilar (Aguilar), SPO4 Bodino, PO3 Benedict Cruz III and another
officer were manning a checkpoint established along Roxas Boulevard corner Quirino Ave., Malate, Manila when,
from about twenty (20) meters away, they spotted a swerving red Ford Ranger pick up with plate number XAE-988.
Petitioner was behind the wheel. The team members, all inuniform, flagged the vehicle down and asked the
petitioner to alightfrom the vehicle so he could take a rest at the police station situated nearby,before he resumes
driving.11 Petitioner, who the policemen claimed was smelling of liquor, denied being drunk and insisted he could
manage to drive. Then in a raised voice, petitioner started talking rudely to the policemen and in fact yelled at
P/Insp. Aguilar blurting: "P…g ina mo, bakit mo ako hinuhuli." Atthat remark, P/Insp. Aguilar, who earlier pointed out
to petitioner that his team had seen him swerving and driving under the influence of liquor, proceeded to
arrestpetitioner who put up resistance. Despite petitioner’s efforts to parry the hold on him, the police eventually
succeeded in subduing him who was then brought to the Ospital ng Maynila where he was examined and found to
be positive of alcoholic breath per the Medical Certificate issuedby that hospital, marked as Exh. "F". Petitioner was
then turned over to the Malate Police Station for disposition.12 Petitioner, on the other hand, claimed tobe a victim in
the incident in question, adding in this regard that he has in fact filed criminal charges for physical injuries, robbery
and arbitrary detention against P/Insp. Aguilar et al. In his Counter-Affidavit13 and his Complaint-Affidavit14 appended
thereto, petitioner averred that, in the early morning of June 12, 2006, he together with Joenilo Pano and Josie
Villanueva, cook and waitress, respectively, in his restaurant located along Macapagal Ave., Pasay City, were on
the way home from on board his pick-up when signaled to stop by police officers at the area immediately referred to
above. Their flashlights trained on the inside of the vehicle and its occupants, the policemen then asked the
petitioner to open the vehicle’s door and alight for a body and vehicle search, a directive he refused to heed owing
to a previous extortion experience. Instead, he opened the vehicle window, uttering, "plain view lang boss, plain
view lang." Obviously irked by this remark, one of the policemen, P/Insp. Aguilar, as it turnedout, then told the
petitioner that he was drunk, pointing to three cases of empty beer bottles in the trunk of the vehicle. Petitioner’s
explanation about being sober and that the empty bottles adverted to came from his restaurant was ignored as
P/Insp. Aguilar suddenly boxed him (petitioner) on the mouth and poked a gun at his head, at the same time
blurting, "P…g ina mo gusto mo tapusin na kita dito marami ka pang sinasabi." The officers then pulled the
petitioner out of the driver’s seat and pushed him into the police mobile car, whereupon he, petitioner, asked his
companions to call up his wife. The policemen then brought petitioner to the Ospital ng Maynila where they
succeeded in securing a medical certificate under the signature of one Dr. Harvey Balucating depicting petitioner as
positive of alcoholic breath, although he refused to be examined and no alcohol breath examination was conducted.
He was thereafter detained from 3:00 a.m.of June 12, 2006 and released in the afternoon of June 13, 2006. Before
his release, however, he was allowed to undergo actual medical examination where the resulting medical certificate
indicated that he has sustained physical injuries but negative for alcohol breath. Ten days later, petitioner filed his
Complaint-Affidavit against Dr. Balucating, P/Insp. Aguilar and the other police officers.

Petitioner also stated in his counter-affidavit that, under Sec. 29 of R.A. 4136, or the Land Transportation and Traffic
Code, the procedure for dealing with a traffic violation is not to place the erring driver under arrest, but to confiscate
his driver’s license.

On June 26, 2009, the MeTC rendered judgment finding petitioner guilty as charged, disposing as follows:

WHEREFORE, premises considered, the prosecution having established the guilt of the accused beyond
reasonable doubt, his conviction of the offenses charges is hereby pronounced. Accordingly, he is sentenced to:

1. Pay a fine of two hundred fifty pesos (₱250.00) for Criminal Case No. 052527-CN; and

2. Suffer imprisonment of straight penalty of three (3) months and pay a fine of two hundred fifty pesos
(₱250.00) for Criminal Case No. 052528-CN.

For lack of basis, no civil liability is adjudged.

The Branch Clerk of Court is directed to certify to the Land Transportation Office the result of this case, stating
further the data required under Section 5815 of Republic Act 4136.

Therefrom, petitioner appealed to the RTC on the main submissions that the MeTC erred in: 1) according credit to
the medical certificate issued by Dr. Balucating, although the records custodian of Ospital ng Maynila was presented
to testify thereon instead of the issuing physician, and 2) upholding the veracity of the joint affidavit of arrest of
P/INSP Manuel Aguilar, SPO4 Efren Bodino, and PO3 Benedict Cruz III, considering that only SPO4 Bodino
appeared in court to testify.

By Decision16 dated February 22, 2010, the RTC affirmed the conviction of the petitioner, addressing the first issue
thus raised in the appeal in the following wise: Dr. Balucating’s failure to testify relative to petitioner’s alcoholic
breath, as indicatedin the medical certificate, is not fatal as such testimony would only serve to corroborate the
testimony on the matter of SPO4 Bodino, noting thatunder the Rules of Court,17 observations of the police officers
regarding the petitioner’s behavior would suffice to support the conclusion of the latter’s drunken state on the day he
was apprehended.18

Apropos the second issue, the RTC pointed out that the prosecution has the discretion as to how many witnesses it
needs to present before the trial court, the positive testimony of a single credible witness as to the guilt of the
accused being reasonable enough to warrant a conviction. The RTC cited established jurisprudence19 enunciating
the rule that preponderance is not necessarily with the greatest number as "[W]itnesses are to be weighed, not
numbered." Following the denial by the RTC of his motion for reconsideration, petitioner went to the CA on a petition
for review, the recourse docketed as CA-G.R. CR No. 33567. By a Decision dated December 28, 2011, as would be
reiterated in a Resolution of July 18, 2012, the appellatecourt affirmed that of the RTC, thus:

WHEREFORE, the petition is DENIED. The assailed Decision dated February 22, 2010 of the RTC, Manila, Branch
12, is AFFIRMED.

SO ORDERED.

Hence, this petition on the following stated issues:

I. The CA erred in upholding the presumption of regularity in the performance of duties by the police officers;
and

II. The CA erred in giving weight to the Medical Certificate issued by Dr. Harvey Balucating, in the absence
of his testimony before the Court.

The petition is meritorious.

Prefatory, the rule according great weight, even finality at times, to the trial court’s findings of fact does hold sway
when, as here, it appears in the record that facts and circumstancesof weight and substance have been overlooked,
misapprehended or misapplied in a case under appeal.20 Corollary, it is basic that an appeal in criminal prosecutions
throws the whole case wide open for review, inclusive of the matter of credibility and appreciation of evidence.21`
Peace officers and traffic enforcers,like other public officials and employees are bound to discharge their duties with
prudence, caution and attention, which careful men usually exercise in the management of their own affairs.22

In the case at bar, the men manning the checkpoint in the subject area and during the period material appearednot
to have performed their duties as required by law, or at least fell short of the norm expected of peace officers. They
spotted the petitioner’s purported swerving vehicle. They then signaled him to stop which he obeyed. But they did
not demand the presentation of the driver’s license orissue any ticket or similar citation paper for traffic violation as
required under the particular premises by Sec. 29 of RA 4136, which specifically provides:

SECTION 29. Confiscation of Driver’s License. – Law enforcement and peace officers of other agencies duly
deputized by the Director shall, in apprehending a driver for any violation of this Act or any regulations issued
pursuant thereto, or of local traffic rules and regulations x x x confiscate the license ofthe driver concerned and issue
a receipt prescribed and issuedby the Bureau therefor which shall authorize the driver to operate a motor vehicle for
a period not exceeding seventy-two hours from the time and date of issue of said receipt. The period so fixed in the
receipt shall not be extended, and shall become invalid thereafter.x x x (Emphasis added.) Instead of requiring the
vehicle’s occupants to answer one or two routinary questions out of respectto what the Court has, in Abenes v.
Court of Appeals,23 adverted to as the motorists’ right of "free passage without [intrusive] interruption," P/Insp.
Aguilar, et al. engaged petitioner in what appears to be an unnecessary conversation and when utterances were
made doubtless not to their liking, they ordered the latter to step out of the vehicle, concluding after seeing three (3)
empty cases of beer at the trunk of the vehicle that petitioner was driving under the influence of alcohol. Then
petitioner went on with his "plain view search" line. The remark apparently pissed the police officers off no end as
one of them immediately lashed at petitioner and his companions as "mga lasing" (drunk) and to get out of the
vehicle, an incongruous response to an otherwise reasonable plea. Defense witness, Joenilo Pano, graphically
described this particular event in his sinumpaang salaysay, as follows:

x x x matapos kami huminto ay naglapitan sa amin ang mga pulis, nag flash light sa loob ng sasakyan at sa aming
mga mukha.

x x x isang pulis ang nag-utos sa aminna kami ay magsi-baba at buksan ang pintuan ng nasabing sasakyan.

x x x dahil doon sinabi ni Kuya sa mga pulis, na hindi pwede iyon at pinigilan niya ako at ang aking kasama kong
waitress na bumaba.

x x x iginiit ni Kuya sa mga pulisang salitang "PLAIN VIEW LANG BOSS, PLAIN VIEW LANG" pero iyon ayhindi nila
pinansin. Sa halip as isang pulis ang nagsabi na "MGA LASING KAYO HETO MAY CASE PA KAYO NG BEER".

x x x habang nagpapaliwanag si Kuya, isang pulis ang biglang kumuha ng susi ng sasakyan habang ang isang pulis
ang biglang sumuntok sa bibig ni Kuya, nagbunot ng baril at tinutukan sa ulo si Kuya.

x x x dahil doon ay nagmakaawa ako na wag barilin si Kuya subalit ako rin ay tinutukan ng baril. x x x na matapos
suntukin si Kuya aypinagtulungan siya ng mga pulis na ilabas sa sasakyan at nang mailabas siyaay pinagtulakan
siya ng mga pulis sa gilid ng kalsada habang hawak ang kanilang baril.24

Pano’s above account ironicallyfinds in a way collaboration from the arresting officers themselves who admitted that
they originally had no intention to search the vehicle in question nor subject its occupants to a body search. The
officers wrote in their aforementioned joint affidavit:

xxxx

That we arrested the suspect, Edmund Sydeco y Siozon x x x for violation of RA 4136 (Driving under the influence
of liquor), and violation of Article 151 of the RPC (Resisting Arrest) x x x committed on or about 3:30A.M., June 11,
2006 along x x x Malate, Manila. x x x He began to raise his voice and converse with us rudely without considering
that we are in uniform, on duty and performing our job. P/INSP Manuel Aguilar pointed out that we saw him
swerving and driving under the influence of liquor that was why we are inviting him to our police station in which our
intention was to make him rest for a moment before he continue to drive. x x x (Emphasis added.)

In fine, at the time of his apprehension, or when he was signaled to stop, to be precise, petitioner has not committed
any crime or suspected of having committed one. "Swerving," as ordinarily understood,refers to a movement
wherein a vehicle shifts from a lane to another or to turn aside from a direct course of action or movement.25 The act
may become punishable when there is a sign indicating that swerving is prohibited or where swerving partakes the
nature ofreckless driving, a concept defined under RA 4136, as:

SECTION 48. Reckless Driving. – Noperson shall operate a motor vehicle on any highway recklessly or without
reasonable caution considering the width, traffic, grades, crossing, curvatures, visibility and other conditions of the
highway and the conditions of the atmosphere and weather, or so as to endanger the property or the safetyor rights
of any person or so as to cause excessive or unreasonable damage to the highway.

Swerving is not necessarily indicative of imprudent behavior let alone constitutive of reckless driving. To constitute
the offense of reckless driving, the act must be something more than a mere negligence in the operation of a motor
vehicle, and a willful and wantondisregard of the consequences is required.26 Nothing in the records indicate that the
area was a "no swerving or overtaking zone." Moreover, the swerving incident, if this be the case, occurred at
around 3:00 a.m. when the streets are usually clear of moving vehicles and human traffic, and the danger to life,
limb and property to third persons is minimal. When the police officers stopped the petitioner’s car, they did not
issue any ticket for swerving as required under Section 29 of RA 4136. Instead, they inspected the vehicle, ordered
the petitioner and his companions to step down of their pick up and concluded that the petitioner was then drunk
mainly because of the cases of beer found at the trunk of the vehicle. On re-direct examination, SPO4 Bodino
testified:
Q: On that particular date, time and place … what exactly prompted you to arrest the accused (sic) the charged in
for Viol. of Section 56(f) of R.A. 4136?

A: Noong mag check-up kami, naamoynamin na amoy alak siya at yung sasakyan ay hindi maganda ang takbo.

Q: Now you stated in your affidavit of arrest Mr. Witness that you spotted the vehicle of the accused swerving, is that
correct?

A: Yes, sir.

Q. Is that also the reason why you apprehended him?

A: Yes, sir.

Q: And what happened after Mr. Witness, when you approached the vehicle of the accused?

A: The accused was in a loud voice. He was asking, "Bakit daw siya pinahihinto?"

xxxx

Q: How do you describe the resistance Mr. Witness?

A: He refused to ride with usgoing to the hospital, Your Honor.

x x x x27

Going over the records, it is fairly clear that what triggered the confrontational stand-off between the police team, on
one hand, and petitioner on the other, was the latter’s refusal to get off of the vehicle for a body and vehicle search
juxtaposed by his insistence on a plain view search only. Petitioner’s twin gestures cannot plausibly be considered
as resisting a lawful order.28 He may have sounded boorish or spoken crudely at that time, but none of this would
make him a criminal. It remains to stress that the petitioner has not, when flagged down, committed a crime or
performed an overt act warranting a reasonable inference of criminal activity. He did not try to avoid the road block
established. He came to a full stop when so required to stop. The two key elements of resistance and serious
disobedience punished under Art. 151 of the RPC are: (1) That a person in authority or his agent is engaged in the
performance of official duty or gives a lawful order to the offender; and (2) That the offender resists or seriously
disobeys such person or his agent.29

There can be no quibble that P/Insp. Aguilar and his apprehending team are persons in authority or agents of a
person in authority manning a legal checkpoint. But surely petitioner’s act of exercising one’s right against
unreasonable searches30 to be conducted in the middle of the night cannot, in context, be equated to disobedience
let alone resisting a lawful order in contemplation of Art. 151 of the RPC. As has often been said, albeit expressed
differently and under dissimilar circumstances, the vitality of democracy lies not in the rights it guarantees, but in the
courage of the people to assert and use them whenever they are ignored or worse infringed.31 Moreover, there is, to
stress, nothing in RA 4136 that authorized the checkpoint-manning policemen to order petitioner and his
companions to get out of the vehicle for a vehicle and body search. And it bears to emphasize that there was no
reasonable suspicion of the occurrence of a crime that would allow what jurisprudence refers to as a "stop and frisk"
action. As SPO4 Bodino no less testified, the only reason why they asked petitioner to get out of the vehicle was not
because he has committed a crime, but because of their intention toinvite him to Station 9 so he could rest before he
resumes driving. But instead of a tactful invitation, the apprehending officers, in an act indicative of overstepping of
their duties, dragged the petitioner out of the vehicle and, in the process of subduing him, pointed a gun and
punched him on the face. None of the police officers, to note, categorically denied the petitioner’s allegation
aboutbeing physically hurt before being brought to the Ospital ng Maynila to be tested for intoxication. What the
policemen claimed was that it took the three (3) of them to subdue the fifty-five year old petitioner. Both actions were
done in excess of their authority granted under RA 4136. They relied on the medical certificate issued by Dr.
Balucating attesting that petitioner showed no physical injuries. The medical certificate was in fact challenged not
only because the petitioner insisted at every turn that he was not examined, but also because Dr. Balucating failed
to testify as to its content. Ms. Delos Santos, the medical record custodian ofthe Ospital ng Maynila, testified, but
only to attest that the hospital has a record of the certificate. The trial court, in its decision, merely stated:

At the outset, the records of the case show that the same were not testified upon by the doctor who issued
it. Instead, the Records Custodian of the Ospital ng Maynila was presented by the Prosecution to testify on the said
1âw phi1

documents.

However, although the doctor who examined the accused was unable to testify to affirm the contents of the Medical
Certificate he issued (re: that he was found to have an alcoholic breath), this court finds that the observation of
herein private complainants as to the accused’s behavior and condition after the incident was sufficient.

Under Section 50 of Rule 130 of the Revised Rules of evidence:

The opinion of a witness for which proper basis is given, may be received in evidence regarding x x x x

The witness may also testify on his impressions of the emotion, behavior, condition or appearance of a person
Under Section 15 of the Revised Rules on Summary Procedure, "at the trial, the affidavits submitted by the parties
shall constitute the direct testimonies of the witnesses who executed the same."32

In sum, the MeTC, as echoed by RTC and CA later, did not rely on the medical certificate Dr. Balucating issued on
June 12, 2006 as to petitioner’s intoxicated state, as the former was not able to testify as to its contents, but on the
testimony of SPO4Bodino, on the assumption that he and his fellow police officers were acting in the regular
performance of their duties. It cannot be emphasized enough that smelling of liquor/alcohol and be under the
influence of liquor are differing concepts. Corollarily, it is difficult to determine with legally acceptable certainty
whether a person is drunk in contemplation of Sec. 56(f) of RA 4136 penalizing the act of driving under the influence
of alcohol. The legal situation has of course changed with the approval in May 2013 of the Anti-Drunk and Drugged
Driving Act of 2013 (RA 10586) which also penalizes driving under the influence of alcohol (DUIA),33 a term defined
under its Sec. 3(e) as the "act of operating a motor vehicle while the driver’s blood alcohol concentration level has,
after being subjected to a breath analyzer test reached the level of intoxication as established jointly by the [DOH],
the NAPOLCOM] and the [DOTC]. And under Sec. 3(g) of the IRR of RA 10586, a driver of a private motor vehicle
with gross vehicle weight not exceeding 4,500 kilograms who has BAC [blood alcohol concentration] of 0.05% or
higher shall be conclusive proof that said driver isdriving under the influence of alcohol. Viewed from the prism of RA
10586, petitioner cannot plausibly be convicted of driving under the influence of alcohol for this obvious reason: he
had not been tested beyond reasonable doubt, let alone conclusively, for reaching during the period material the
threshold level of intoxication set under the law for DUIA, i.e., a BAC of 0.05% or over. Under Art. 22 of the
RPC,34 penal laws shall be given retroactive insofar asthey are favorable to the accused. Section 19 of RA 10586
expressly modified Sec. 56(f) of RA 4136. Verily, even by force of Art. 22 ofthe RPC in relation to Sec. 3(e) of RA
10586 alone, petitioner could very well be acquitted for the charge of driving under the influence of alcohol, even if
the supposed inculpatory act occurred in 2006.

Parenthetically, the Office of the City Prosecutor of Manila, per its Resolution35 of November 21, 2006 found, on the
strength of another physical examination from the same Ospital ng Maynila conducted by Dr. Devega on the
petitioner on the same day,June 12, but later hour, probable cause for slight physical injuries against P/Insp. Aguilar
et al. That finding to be sure tends to indicate that the police indeed man handled the petitioner and belied, or at
least cancelled out, the purported Dr. Balucating’s finding as to petitioner’s true state.

The Court must underscore at this juncture that the petitioner, after the unfortunate incident, lost no time
incommencing the appropriate criminal charges against the police officers and Dr. Balucating, whomhe accused of
issuing Exh. "F" even without examining him. The element of immediacy in the filing lends credence to petitioner’s
profession of innocence, particularly of the charge of disobeying lawful order or resisting arrest. Certainly not to be
overlooked is the fact that petitioner,in so filing his complaint, could not have possibly been inspired by improper
motive, the police officers being complete strangers to him and vice versa. Withal, unless he had a legitimate
grievance, it is difficult to accept the notion that petitioner would expose himself to harm’s way by filing a harassment
criminal suit against policemen.

Conviction must come only after it survives the test of reason.36 It is thus required that every circumstance favoring
one’s innocence be duly taken into account.37 Given the deviation of the police officers from the standard and usual
procedure in dealing with traffic violation by perceived drivers under the influence of alcoholand executing an arrest,
the blind reliance and simplistic invocation by the trial court and the CA on the presumption of regularity in the
conduct of police duty is clearly misplaced. As stressed in People v. Ambrosio,38 the presumption of regularity is
merely just that, a presumption disputable by contrary proof and which when challenged by the evidence cannot be
regarded as binding truth. And to be sure, this presumption alone cannot preponderate over the presumption of
innocence that prevails if not overcome by proof that obliterates all doubts as to the offender’s culpability. In the
present case, the absence of conclusive proof being under the influence of liquor while driving coupled with the
forceful manner the police yanked petitioner out of his vehicle argues against or at least cast doubt on the finding of
guilt for drunken driving and resisting arrest.

In case of doubt as to the moral certainty of culpability, the balance tips in favor of innocence or at least infavor of
the milderform of criminal liability. This is as it should be. For, it is basic, almost elementary, that the burden of
proving the guiltof an accused lies on the prosecution which must rely on the strength of its evidence and noton the
weakness of the defense.

WHEREFORE, in light of all the foregoing, the appealed Decision and Resolution of the Court of Appeals in CA-
G.R. CR No. 33567 are hereby REVERSED and SET ASI:OE. Petitioner is hereby acquitted of the crimes charged
in Criminal Case No. 052527-CN and Criminal Case No. 052528-CN.

No pronouncement as to costs.

PRESBITERO J. VELASCO, JR.

Associate Justice

WE CONCUR:

ARTURO D. BRION*
Associate Justice

MARTIN S. VILLARAMA, JR. BIENVENIDO L. REYES

Associate Justice Associate Justice

ESTELA M. PERLAS-BERNABE**
Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision had been reached in consultation before the case was assigned
to the writer of the opinion of the Court's Division.

PRESBITERO J. VELASCO, JR.

Associate Justice
Chairperson

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution and the Division Chairperson's Attestation, I certify that the
conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of
the opinion of the Court's Division.

ANTONIO T. CARPIO
Acting Chief Justice

Footnotes
* dditional Member per Raffle dated November 10, 2014.

** Acting Member per Special Order No. 1866 dated November 4, 2014.

1
Penned by Associate Justice Hakim S. Abdulwahid with the concurrence of Associate Justices Michael P.
Elbinias and Leoncia Real-Dimagiba, Annex "A" Petition, rollo, pp. 25-37.

2
Annex "E", Petition, id. at 51-52.

3
Annex "H", Petition, id. at 90-98.

4
Annex "K", Petition, id. at 105-120.

5
Land Transportation and Traffic Code:

SECTION 56. Penalty for Violation. – The following penalties shall be imposed for violations of this
Act: x x x

(f) Driving a motor vehicle while under the influence of liquor x x x a fine of not less than one
thousand pesos or imprisonment of not less than three nor more than six months, or both, at the
discretion of the court.

6
Art. 151. Resistance and disobedience to a person in authority or the agents of such person. — The
penalty of arresto mayorand a fine not exceeding 500 pesos shall be imposed upon any person who not
being included in the provisions of the preceding articles shall resist or seriously disobey any person in
authority, or the agents of such person, while engaged in the performance of official duties; When the
disobedience to an agent of a person in authority is not of a serious nature, the penalty of arresto menor or a
fine ranging from 10 to 100 pesos shall be imposed upon the offender.

7
One of the apprehending officers.

8
Investigating Officer.

9
Medical Records Custodian of Ospital ng Maynila.

10
Annex "P" of Petition, rollo, p. 126.

11
Id. at 108.

12
Annex "R", Petition, id. at 129.

13
Annex "T", Petition, id. at 134.

14
Annex "U" Petition, id. at 136-138.

15
SECTION 58. Duty of Clerks of Court. – It is hereby made the duty of clerks of the Court of First Instance,
the City Court or Municipal Court trying traffic violation cases to certify to the Commission the result of any
case, whether criminal or civil, involving violations of any provision of this Act or of other laws and
ordinances relating to motor vehicles. Said certificate shall specifically contain the name of the driver or
owner of the vehicle involved, his address, the number of his license and/or of the certificate or registration
of his vehicle, and the date thereof, and the offense of which he was convicted or acquitted.

16
Rollo, p. 90-98, 98.

Sec. 50. Opinion of ordinary witnesses. — The opinion of a witness for which proper basis is given, may
17

be received in evidence regarding —

 (a) The identity of a person about whom he has adequate knowledge;

(b) A handwriting with which he has sufficient familiarity; and

(c) The mental sanity of a person with whom he is sufficiently acquainted.

The witness may also testify on his impressions of the emotion, behavior, condition or appearance of
a person.

18
Rollo, p. 45.

19
People v. Dela Cruz, G.R. No. 175929, December 16, 2008, 574 SCRA 78, 90.

20
People v. Laxa, G.R. No. 138501, July 20, 2001, 361 SCRA 622.

Willy Tan y Chua v. People, G.R. No. 148194, April 12, 2002; Olimpio Pangonorom Metro Manila Transit
21

Corporation v. People, G.R. No. 143380. April 11, 2005.

22
Balais v. Abuda, A.M. No. R-565-P, November 27, 1986.

23
G.R. No. 156320, February 14, 2007.

24
Rollo, pp. 139-140.

25
Merriam-Webster Collegiate Dictionary, 10th Ed. 1997.

26
Caminos, Jr. v. People, G.R. No. 147437, May 8, 2009, 587 SCRA 348, 357.

27
Records, p. 491.

28
Abenes v. Court of Appeals, G.R. No. 156320, February 14, 2007, 515 SCRA 690.

29
Reyes, The Revised Penal Code, Book II, 18th ed., 2008, p. 154 .

30
1987 Constitution of the Republic of the Philippines, Article III , Section 2. "The right of the people to be
secure in their persons, houses, papers, and effects against unreasonable searches and seizures of
whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall
issue except upon probable cause to be determined personally by the judge after examination under oath or
affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be
searched and the persons or things to be seized."

31
Ynot v. IAC, 148 SCRA 659.

32
Rollo, pp. 110-111.

33
Sec. 5. Punishable Act.- It shall be unlawful for any person to drive a motor vehicle while under the
influence of alcohol, dangerous drugs and/or similar substances.

Art. 22. Retroactive effect of penal laws.- Penal laws shall have retroactive effect in so far as they favor the
34

person guilty of a felony, who is not a habitual criminal, as this term is defined in rule 5 of article 62 of this
Code although at the time of the publication of such laws a final sentence has been pronounced and the
convict is serving the same.

35
Rollo, pp. 167-170.

36
People v. Castro, G.R. No. L-42478 October 4, 1989.
37
People v. Dramayo, G.R. No. L-21325, October 29, 1971, 42 SCRA 59.

38
G.R. No. 135378, April 14, 2004, 427 SCRA 312.
 7. G.R. No. 146217 April 7, 2006

ANUNCIO C. BUSTILLO, Petitioner,

vs.
SANDIGANBAYAN, PEOPLE OF THE PHILIPPINES, ALFREDO S. LIM as Secretary of the Department of
Interior and Local Government (DILG), and JEAN MARY PASCUA, Respondents.

DECISION

CARPIO, J.:

The Case

This is a petition for certiorari1 of the Resolutions2 dated 28 August 2000 and 4 December 2000 of the
Sandiganbayan. The 28 August 2000 Resolution ordered the suspension from office for 90 days of petitioner
Anuncio C. Bustillo ("petitioner")3 pending the proceedings in Criminal Case No. 23076 for falsification of official
documents. The 4 December 2000 Resolution denied petitioner’s motion for reconsideration.

The Facts

In 1995, the Office of the Special Prosecutor ("OSP") charged petitioner, then incumbent mayor of Bunawan,
Agusan del Sur, and his daughter Rowena Bustillo (collectively referred to as "accused"), in the Sandiganbayan with
Falsification of Official Documents under Article 171 of the Revised Penal Code ("RPC") in Criminal Case No.
23076. The Information alleged:

The undersigned Special Prosecution Officer I, Office of the Special Prosecutor, hereby accuses ANUNCIO C.
BUSTILLO and ROWENA G. BUSTILLO of the crime of Falsification of Official Documents, defined and penalized
under Article 171 of the Revised Penal Code, committed as follows:

That on or about September 6, 1991, in Bunawan, Agusan del Sur, Philippines, and within the jurisdiction of this
Honorable Court, accused ANUNCIO C. BUSTILLO, a public officer, being then the Municipal Mayor of Bunawan,
Agusan del Sur, committing the crime herein charged in relation to, while in the performance and taking advantage
of his official functions, and conspiring and confederating with accused ROWENA G. BUSTILLO, his daughter, did
then and there wil[l]fully, unlawfully and feloniously make it appear in official documents that municipal funds
totalling THIRTY THOUSAND PESOS (P30,000.00) were expended for the purchase of lumber from Estigoy
Lumber when, in truth and in fact, as both accused well knew, said lumber were actually purchased from Rowena
Woodcraft, a single proprietorship owned by accused Rowena G. Bustillo.4

The accused were charged of falsifying three vouchers5 in which the name of the original payee was erased and
replaced with "Estigoy Lumber." Rowena Bustillo received the payments covered by the vouchers.

The accused sought to quash the Information on the ground that the Sandiganbayan lacked jurisdiction over
petitioner and that, at any rate, the Information did not charge an offense. The Sandiganbayan denied the
motion.6 The accused apparently did not appeal this ruling.

In May 1998, the Sandiganbayan arraigned the accused who entered "not guilty" pleas. Trial ensued. After the
prosecution rested its case, it moved for petitioner’s suspension from office pendente lite under Section 13 of
Republic Act No. 3019 ("RA 3019") or the Anti-Graft and Corrupt Practices Act, as amended by Batas Pambansa
Blg. 195. Petitioner sought an extension of time to Comment on the motion. The Sandiganbayan granted the
extension. However, despite the extension, petitioner still failed to file his Comment.

The Ruling of the Sandiganbayan

In its Resolution of 28 August 2000, the Sandiganbayan granted the prosecution’s motion and suspended petitioner
from office for 90 days. The Sandiganbayan held:
While the Information charges Falsification of Official Document[s,] it was clear from the wordings of the same, that
the accused is being charged or indicted for a fraud involving public or government funds. Thus it says:

"x x x willfully, unlawfully and feloniously make it appear in official documents that municipal funds
total[l]ing P30,000.00 were expended for the purchase[] of lumber from Estigoy Lumber, when in truth and in fact, x
x x said lumber were actually purchased from Rowena Woodcraft, a single proprietorship owned by accused
Rowena G. Bustil[l]o x x x"

At the risk of being tautological, the Court once again states what has been repeatedly held by the Supreme Court in
many cases that upon determination of the validity of the information, it becomes mandatory for the court to issue
the suspension order. In the case at bench, there is no dispute as to the validity of the information accused having to
respond to the Motion for Suspension Pen[den]te Lite, it behooves upon this Court to issue immediately the
suspension order in consonance with the imperious mandate of the law.7

Petitioner sought reconsideration but the Sandiganbayan denied his motion in the Resolution of 4 December 2000.

Hence, petitioner filed this petition for certiorari alleging that:

A. [THE] SANDIGANBAYAN ERRED AND COMMITTED GRAVE ABUSE OF DISCRETION IN FINDING THAT
THE INFORMATION AGAINST PETITIONER IS VALID.

B. [THE] SANDIGANBAYAN ERRED AND COMMITTED GRAVE ABUSE OF DISCRETION WHEN IT ORDERED
THE SUSPENSION OF PETITIONER BECAUSE SECTION 13 OF R.A. 3019 MANDATES THE SUSPENSION OF
AN ACCUSED PENDENTE LITE CHARGED WITH OFFENSES DEFINED AND PENALIZED UNDER TITLE 7,
BOOK II OF THE REVISED PENAL CODE YET THE CHARGE OF "FALSIFICATION OF OFFICIAL DOCUMENTS"
FALLS UNDER TITLE 4, BOOK II OF THE SAME CODE, HENCE, EXCLUDED AS BASIS OF SUSPENSION
FROM OFFICE.

C. [THE] SANDIGANBAYAN ERRED AND LIKEWISE COMMITTED GRAVE ABUSE OF DISCRETION IN

ORDERING THE 90-DAY SUSPENSION OF [PETITIONER FROM OFFICE].8

The Issues

The petition raises the following issues:

1. Whether the Information filed against the accused is valid; and

2. Whether petitioner’s suspension from office pendente lite finds basis in Section 13 of RA 3019.

The Ruling of the Court

The petition has no merit.

On the Validity of the Information in Criminal Case No. 23076

Petitioner contends that the Information filed against him and his co-accused is invalid because it failed to allege the
element of gain, the party benefited or prejudiced by the falsification, or that the "integrity of the [falsified] document
was tarnished." Petitioner also invokes the findings of Special Prosecutor II Francis Ilustre, Jr. ("Ilustre") of the OSP
who recommended the dismissal of the complaint against the accused.9

Petitioner’s contentions are futile.

The Sandiganbayan already settled the question of the Information’s validity when it denied the motion of the
accused to quash the same. That ruling had long become final. Thus, petitioner can no longer resurrect this issue.
At any rate, the allegation of intent to gain, the party benefited or prejudiced by the falsification, or tarnishing of a
document’s integrity, is not essential to maintain a charge for falsification of official documents. Such charge stands
if the facts alleged in the Information fall under any of the modes of committing falsification under Article 17110 of the
RPC. Here, the Information alleges that petitioner, a public officer, conspiring with a private individual (Rowena
Bustillo), "feloniously ma[d]e it appear in official documents that municipal funds totalling [thirty thousand pesos]
(P30,000.00) were expended for the purchase of lumber from Estigoy Lumber when, in truth and in fact, as both
accused well knew, said lumber were actually purchased from Rowena Woodcraft, a single proprietorship owned by
accused Rowena G. Bustillo." This falls under paragraph 2 of Article 171 which makes it punishable for anyone to
"[cause] it to appear that persons have participated in any act or proceeding when they did not in fact so participate,"
as the accused allegedly made it appear that Estigoy Lumber delivered the pieces of lumber to the municipality of
Bunawan when it did not.

Nor can petitioner rely on Ilustre’s recommendation to dismiss the complaint against the accused. Then
Ombudsman Aniano Desierto disapproved Ilustre’s recommendation, paving the way for the filing of Criminal Case
No. 23076.

Petitioner’s Suspension Finds Basis in Section 13 of RA 3019

Petitioner next contends that he was illegally suspended from office because the offense of falsification of official
documents is found in Title 4, Book II and not in Title 7, Book II of the RPC. Petitioner further asserts that this
offense does not involve "fraud or property." Thus, petitioner concludes that his suspension finds no basis in Section
13 of RA 3019.11

The contention is similarly without merit.

Section 13 provides:

Suspension and loss of benefits. — Any incumbent public officer against whom any criminal prosecution under a
valid information under this Act or under Title 7, Book II of the Revised Penal Code or for any offense
involving fraud upon government or public funds or property whether as a simple or as a complex offense and
in whatever stage of execution and mode of participation, is pending in court, shall be suspended from office.
Should he be convicted by final judgment, he shall lose all retirement or gratuity benefits under any law, but if he is
acquitted, he shall be entitled to reinstatement and to the salaries and benefits which he failed to receive during
suspension, unless in the meantime administrative proceedings have been filed against him.

In the event that such convicted officer, who may have already been separated from the service, has already
received such benefits he shall be liable to restitute the same to the Government. (Emphasis supplied)

Suspension from office is mandatory12 whenever a valid Information charges an incumbent public officer with (1)
violation of RA 3019; (2) violation of Title 7, Book II of the RPC; (3) any offense involving fraud upon government; or
(4) any offense involving fraud upon public funds or property. While petitioner correctly contends that the charge
filed against him and his co-accused does not fall under Title 7, Book II but under Title 4, Book II of the RPC, it
nevertheless involves "fraud upon government or public funds or property."13

As used in Section 13, the term "fraud" is understood in its generic sense,14 that is, referring to "an instance or an
act of trickery or deceit especially when involving misrepresentation."15 The Information alleges that petitioner and
his co-accused "feloniously ma[d]e it appear in official documents that municipal funds totalling [thirty thousand
pesos] (P30,000.00) were expended for the purchase of lumber from Estigoy Lumber when, in truth and in fact, as
both accused well knew, said lumber were actually purchased from Rowena Woodcraft, a single proprietorship
owned by accused Rowena G. Bustillo." This suffices to classify the charge as "involving fraud upon government" as
contemplated in Section 13. 1av vphil.net

Petitioner does not dispute that the official documents he and his co-accused are charged of falsifying are vouchers.
As used in government, vouchers, like daily time records,16 are official documents signifying a cash outflow from
government coffers, especially if, as here, receipt of payment is acknowledged. Thus, falsifying these official
documents invariably involves "fraud upon x x x public funds x x x."
 On Petitioner’s Claim on the Merits of Criminal Case No. 23076

Petitioner includes in this petition a claim that based on the evidence presented during the trial, he and his co-
accused did not commit falsification because it was Estigoy Lumber that delivered the lumber to the municipality of
Bunawan. Petitioner asserts that Rowena Bustillo merely received payments as representative of Estigoy Lumber.
Thus, the alterations in the vouchers were meant to reflect the truth.17

Petitioner raises this contention in the wrong proceeding. The only relevant inquiry in this appeal is whether
petitioner was charged under a valid Information for any of the offenses covered in Section 13 of RA 3019. The
Court cannot expand the scope of this review and pass upon the merits of the government’s case against petitioner.
That would not only be procedurally improper but also preemptive of whatever judgment the Sandiganbayan will
render in Criminal Case No. 23076.

WHEREFORE, we DISMISS the petition. We AFFIRM the Resolutions dated 28 August 2000 and 4 December 2000
of the Sandiganbayan.

SO ORDERED.

ANTONIO T. CARPIO
Associate Justice

WE CONCUR:

LEONARDO A. QUISUMBING
Associate Justice
Chairperson

CONCHITA CARPIO MORALES DANTE O. TINGA

Associate Justice Asscociate Justice

PRESBITERO J. VELASCO, JR.

Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision had been reached in consultation before the case was assigned
to the writer of the opinion of the Court’s Division.

LEONARDO A. QUISUMBING
Associate Justice
Chairperson

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairperson’s Attestation, I certify that the
conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of
the opinion of the Court’s Division.

ARTEMIO V. PANGANIBAN
Chief Justice

Footnotes
1 Under Rule 65 of the 1997 Rules of Civil Procedure.

2Penned by Associate Justice Edilberto G. Sandoval with Associate Justices Godofredo L. Legaspi and
Raoul V. Victorino, concurring.

3 Petitioner is also referred to as "Anuncio P. Bustillo" in other parts of the rollo.

4 Rollo, p. 23.

5 Nos. 103-9109227, 103-9109228, and 103-9109229.

6It cannot be determined from the rollo when the Sandiganbayan rendered its ruling denying the motion to
quash.

7 Rollo, pp. 27-28.

8 Id. at 8.

9 Id. at 9-10, 13-16.

10"Falsification by public officer, employee or notary or ecclesiastic minister. — The penalty of prisión
mayor and a fine not to exceed 5,000 pesos shall be imposed upon any public officer, employee, or notary
who, taking advantage of his official position, shall falsify a document by committing any of the following
acts:

1. Counterfeiting or imitating any handwriting, signature or rubric;

2. Causing it to appear that persons have participated in any act or proceeding when they did
not in fact so participate;

3. Attributing to persons who have participated in an act or proceeding statements other than those
in fact made by them;

4. Making untruthful statements in a narration of facts;

5. Altering true dates;

6. Making any alteration or intercalation in a genuine document which changes its meaning;

7. Issuing in authenticated form a document purporting to be a copy of an original document when

no such original exists, or including in such copy a statement contrary to, or different from, that of the
genuine original; or

8. Intercalating any instrument or note relative to the issuance thereof in a protocol, registry, or
official book.

The same penalty shall be imposed upon any ecclesiastical minister who shall commit any of the
offenses enumerated in the preceding paragraphs of this article, with respect to any record or
document of such character that its falsification may affect the civil status of persons." (Emphasis
supplied)

11 Rollo, pp. 10-13.

Beroña v. Sandiganbayan, G.R. No. 142456, 27 July 2004, 435 SCRA 303; Bolastig v. Sandiganbayan,
12

G.R. No. 110503, 4 August 1994, 235 SCRA 103.

13 See Pimentel v. Garchitorena, G.R. Nos. 98340-42, 10 April 1992, 208 SCRA 122.

14 Flores v. Layosa, G.R. No. 154714, 12 August 2004, 436 SCRA 337.

15Webster’s Third New International Dictionary of the English Language 904 (1993 Ed.) cited in Flores v.
Layosa, supra at 351.

16 Flores v. Layosa, supra.

17 Rollo, pp. 9-10, 12-13.

8. G.R. No. 179448 June 26, 2013

CARLOS L. TANENGGEE, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

DEL CASTILLO, J.:

Assailed in this Petition for Review on Certiorari1 under Rule 45 of the Rules of Court is the December 12, 2006
Decision2 of the Court of Appeals (CA) in CA-G.R. CR No. 23653 affirming with modification the June 25, 1999
Decision3 of the Regional Trial Court (RTC) of Manila, Branch 30, in Criminal Case Nos. 98-163806-10 finding
Carlos L." Tanenggee (petitioner) guilty beyond reasonable doubt of five counts of estafa through falsification of
commercial documents. Likewise questioned is the CA's September 6, 2007 Resolution4 denying petitioner's Motion
for Reconsideration5 and Supplemental Motion for Reconsideration.6

Factual Antecedents

On March 27, 1998, five separate Informations7 for estafa through falsification of commercial documents were filed
against petitioner. The said Informations portray the same mode of commission of the crime as in Criminal Case No.
98-163806 but differ with respect to the numbers of the checks and promissory notes involved and the dates and
amounts thereof, viz:

That on or about July 24, 1997, in the City of Manila, Philippines, the said accused, being then a private individual,
did then and there willfully, unlawfully and feloniously defraud, thru falsification of commercial document, the
METROPOLITAN BANK & TRUST CO. (METROBANK), represented by its Legal officer, Atty. Ferdinand R. Aguirre,
in the following manner: herein accused, being then the Manager of the COMMERCIO BRANCH OF METROBANK
located at the New Divisoria Market Bldg., Divisoria, Manila, and taking advantage of his position as such, prepared
and filled up or caused to be prepared and filled up METROBANK Promissory Note Form No. 366857 with letters
and figures reading "BD#083/97" after the letters reading "PN", with figures reading "07.24.97" after the word
"DATE", with the amount of ₱16,000,000.00 in words and in figures, and with other words and figures now
appearing thereon, typing or causing to be typed at the right bottom thereof the name reading "ROMEO TAN",
feigning and forging or causing to be feigned and forged on top of said name the signature of Romeo Tan, affixing
his own signature at the left bottom thereof purportedly to show that he witnessed the alleged signing of the said
note by Romeo Tan, thereafter preparing and filling up or causing to be prepared and filled up METROBANK
CASHIER’S CHECK NO. CC 0000001531, a commercial document, with date reading "July 24, 1997", with the
name reading "Romeo Tan" as payee, and with the sum of ₱15,362,666.67 in words and in figures, which purports
to be the proceeds of the loan being obtained, thereafter affixing his own signature thereon, and directing the
unsuspecting bank cashier to also affix his signature on the said check, as authorized signatories, and finally
affixing, feigning and forging or causing to be affixed, feigned and forged four (4) times at the back thereof the
signature of said Romeo Tan, thereby making it appear, as it did appear that Romeo Tan had participated in the
preparation, execution and signing of the said Promissory Note and the signing and endorsement of the said
METROBANK CASHIER’S CHECK and that he obtained a loan of ₱16,000,000.00 from METROBANK, when in
truth and in fact, as the said accused well knew, such was not the case in that said Romeo Tan did not obtain such
loan from METROBANK, neither did he participate in the preparation, execution and signing of the said promissory
note and signing and endorsement of said METROBANK CASHIER’S CHECK, much less authorize herein accused
to prepare, execute and affix his signature in the said documents; that once the said documents were forged and
falsified in the manner above set forth, the said accused released, obtained and received from the METROBANK
the sum of ₱15,363,666.67 purportedly representing the proceeds of the said loan, which amount, once in his
possession, with intent to defraud, he misappropriated, misapplied and converted to his own personal use and
benefit, to the damage and prejudice of the said METROBANK in the same sum of ₱15,363,666.67, Philippine
currency.

CONTRARY TO LAW.8

On May 27, 1998, the RTC entered a plea of not guilty for the petitioner after he refused to enter a plea.9 The cases
were then consolidated and jointly tried.
The proceedings before the RTC as aptly summarized by the CA are as follows:

During the pre-trial, except for the identity of the accused, the jurisdiction of the court, and that accused was the
branch manager of Metrobank Commercio Branch from July 1997 to December 1997, no other stipulations were
entered into. Prosecution marked its exhibits "A" to "L" and sub-markings.

xxxx

The prosecution alleged that on different occasions, appellant caused to be prepared promissory notes and
cashier’s checks in the name of Romeo Tan, a valued client of the bank since he has substantial deposits in his
account, in connection with the purported loans obtained by the latter from the bank. Appellant approved and signed
the cashier’s check as branch manager of Metrobank Commercio Branch. Appellant affixed, forged or caused to be
signed the signature of Tan as endorser and payee of the proceeds of the checks at the back of the same to show
that the latter had indeed endorsed the same for payment. He handed the checks to the Loans clerk, Maria Dolores
Miranda, for encashment. Once said documents were forged and falsified, appellant released and obtained from
Metrobank the proceeds of the alleged loan and misappropriated the same to his use and benefit. After the
discovery of the irregular loans, an internal audit was conducted and an administrative investigation was held in the
Head Office of Metrobank, during which appellant signed a written statement (marked as Exhibit "N") in the form of
questions and answers.

The prosecution presented the following witnesses:

Valentino Elevado, a member of the Internal Affairs Department of Metrobank, testified that he conducted and
interviewed the appellant in January 1998; that in said interview, appellant admitted having committed the
allegations in the Informations, specifically forging the promissory notes; that the proceeds of the loan were secured
or personally received by the appellant although it should be the client of the bank who should receive the same;
and that all the answers of the appellant were contained in a typewritten document voluntarily executed,
thumbmarked, and signed by him (Exhibit "N").

Rosemarie Tan Apostol, assistant branch manager, testified that the signatures appearing on the promissory notes
were not the signatures of Romeo Tan; that the promissory notes did not bear her signature although it is required,
due to the fact that Romeo Tan is a valued client and her manager accommodated valued clients; that she signed
the corresponding checks upon instruction of appellant; and that after signing the checks, appellant took the same
which remained in his custody.

Eliodoro M. Constantino, NBI Supervisor and a handwriting expert, testified that the signatures appearing on the
promissory notes and specimen signatures on the signature card of Romeo Tan were not written by one and the
same person.

Maria Dolores Miranda, a Loans Clerk at Metrobank Commercio Branch, testified that several cashier’s checks were
issued in favor of Romeo Tan; that appellant instructed her to encash the same; and that it was appellant who
received the proceeds of the loan.

For his defense, appellant Carlos Lo Tanenggee testified that he is a holder of a Masters degree from the Asian
Institute of Management, and was the Branch Manager of Metrobank Commercio Branch from 1994 until he was
charged in 1998 [with] the above-named offense. He was with Metrobank for nine (9) years starting as assistant
manager of Metrobank Dasmariñas Branch, Binondo, Manila. As manager, he oversaw the day to day operations of
the branch, solicited accounts and processed loans, among others.

Appellant claimed that he was able to solicit Romeo Tan as a client-depositor when he was the branch manager of
Metrobank Commercio. As a valued client, Romeo Tan was granted a credit line for forty million pesos
(₱40,000,000.00) by Metrobank. Tan was also allowed to open a fictitious account for his personal use and was
assisted personally by appellant in his dealings with the bank. In the middle of 1997, Tan allegedly opened a
fictitious account and used the name Jose Tan. Such practice for valued clients was allowed by and known to the
bank to hide their finances due to rampantkidnappings or from the Bureau of Internal Revenue (BIR) or from their
spouses.
According to appellant, Tan availed of his standing credit line (through promissory notes) for five (5) times on the
following dates: 1) 24 July 1997 for sixteen million pesos (₱16,000,000.00), 2) 27 October 1997 for six million pesos
(₱6,000,000.00), 3) 12 November 1997 for three million pesos (₱3,000,000.00), 4) 21 November 1997 for sixteen
million pesos (₱16,000,000,00), 5) 22 December 1997 for two million pesos (₱2,000,000.00). On all these occasions
except the loan on 24 July 1997 when Tan personally went to the bank, Tan allegedly gave his instructions
regarding the loan through the telephone. Upon receiving the instructions, appellant would order the Loans clerk to
prepare the promissory note and send the same through the bank’s messenger to Tan’s office, which was located
across the street. The latter would then return to the bank, through his own messenger, the promissory notes
already signed by him. Upon receipt of the promissory note, appellant would order the preparation of the
corresponding cashier’s check representing the proceeds of the particular loan, send the same through the bank’s
messenger to the office of Tan, and the latter would return the same through his own messenger already endorsed
together with a deposit slip under Current Account No. 258-250133-7 of Jose Tan. Only Cashier’s Check dated 21
November 1997 for sixteen million pesos (₱16,000,000.00) was not endorsed and deposited for, allegedly, it was
used to pay the loan obtained on 24 July 1997. Appellant claimed that all the signatures of Tan appearing on the
promissory notes and the cashier’s checks were the genuine signatures of Tan although he never saw the latter affix
them thereon.

In the middle of January 1998, two (2) Metrobank auditors conducted an audit of the Commercio Branch for more
than a week. Thereafter or on 26 January 1998, appellant was asked by Elvira Ong-Chan, senior vice president of
Metrobank, to report to the Head Office on the following day. When appellant arrived at the said office, he was
surprised that there were seven (7) other people present: two (2) senior branch officers, two (2) bank lawyers, two
(2) policemen (one in uniform and the other in plain clothes), and a representative of the Internal Affairs unit of the
bank, Valentino Elevado.

Appellant claimed that Elevado asked him to sign a paper (Exhibit "N") in connection with the audit investigation;
that he inquired what he was made to sign but was not offered any explanation; that he was intimidated to sign and
was threatened by the police that he will be brought to the precinct if he will not sign; that he was not able to consult
a lawyer since he was not apprised of the purpose of the meeting; and that "just to get it over with" he signed the
paper which turned out to be a confession. After the said meeting, appellant went to see Tan at his office but was
unable to find the latter. He also tried to phone him but to no avail.10

Ruling of the Regional Trial Court

After the joint trial, the RTC rendered a consolidated Decision11 dated June 25, 1999 finding petitioner guilty of the
crimes charged, the decretal portion of which states:

WHEREFORE, the Court finds the accused, Carlos Lo Tanenggee, guilty beyond reasonable doubt of the offense of
estafa thru falsification of commercial documents charged in each of the five (5) Informations filed and hereby
sentences him to suffer the following penalties:

1. In Criminal Case No. 98-163806, to suffer the indeterminate penalty of imprisonment from eight (8) years
of prision mayor as minimum to twenty (20) years of reclusion temporal as maximum including the
accessory penalties provided by law.

2. In Criminal Case No. 98-163807, to suffer the indeterminate penalty of imprisonment from eight (8) years
of prision mayor as minimum to twenty (20) years of reclusion temporal as maximum including the
accessory penalties provided by law, and to indemnify Metrobank the sum of ₱16 Million with interest at
18% per annum counted from 27 November 1997 until fully paid.

3. In Criminal Case No. 98-163808, to suffer the indeterminate penalty of imprisonment from eight (8) years
of prision mayor as minimum to twenty (20) years of reclusion temporal as maximum including the
accessory penalties provided by law, and to indemnify Metrobank the sum of ₱6 Million with interest at 18%
per annum counted from 27 October 1997 until fully paid.

4. In Criminal Case No. 98-163809, to suffer the indeterminate penalty of imprisonment from eight (8) years
of prision mayor as minimum to twenty (20) years of reclusion temporal as maximum including the
accessory penalties provided by law, and to indemnify Metrobank the sum of ₱2 Million with interest at 18%
per annum counted from 22 December 1997 until fully paid.
 5. In Criminal Case No. 98-163810, to suffer the indeterminate penalty of imprisonment from eight (8) years
of prision mayor as minimum to twenty (20) years of reclusion temporal as maximum including the
accessory penalties provided by law, and to indemnify Metrobank the sum of ₱3 Million with interest at 18%
per annum counted from 12 November 1997 until fully paid.

Accused shall serve the said penalties imposed successively.

As mandated in Article 70 of the Revised Penal Code, the maximum duration of the sentence imposed shall not be
more than threefold the length of time corresponding to the most severe of the penalties imposed upon him and
such maximum period shall in no case exceed forty (40) years.

SO ORDERED.12

Ruling of the Court of Appeals

Petitioner appealed the judgment of conviction to the CA where the case was docketed as CA-G.R. CR No. 23653.
On December 12, 2006, the CA promulgated its Decision13 affirming with modification the RTC Decision and
disposing of the appeal as follows:

WHEREFORE, the appeal is DENIED for lack of merit and the Decision dated 25 June 1999 of the Regional Trial
Court (RTC) of Manila, Branch 30 convicting the accused-appellant Carlos Lo Tanenggee on five counts of estafa
through falsification of commercial documents is hereby AFFIRMED with MODIFICATION that in Criminal Case No.
98-163806, he is further ordered to indemnify Metrobank the sum of ₱16 Million with interest at 18% per annum
counted from 24 July 1997 until fully paid.

SO ORDERED.14

On December 29, 2006,15 petitioner moved for reconsideration, which the CA denied per its September 6, 2007
Resolution.16

Hence, the present Petition for Review on Certiorari under Rule 45 of the Rules of Court raising the basic issues of:
(1) whether the CA erred in affirming the RTC’s admission in evidence of the petitioner’s written statement based on
its finding that he was not in police custody or under custodial interrogation when the same was taken; and, (2)
whether the essential elements of estafa through falsification of commercial documents were established by the
prosecution.17

The Parties’ Arguments

While he admits signing a written statement,18 petitioner refutes the truth of the contents thereof and alleges that he
was only forced to sign the same without reading its contents. He asserts that said written statement was taken in
violation of his rights under Section 12, Article III of the Constitution, particularly of his right to remain silent, right to
counsel, and right to be informed of the first two rights. Hence, the same should not have been admitted in evidence
against him.

On the other hand, respondent People of the Philippines, through the Office of the Solicitor General (OSG),
maintains that petitioner’s written statement is admissible in evidence since the constitutional proscription invoked
by petitioner does not apply to inquiries made in the context of private employment but is applicable only in cases of
custodial interrogation. The OSG thus prays for the affirmance of the appealed CA Decision.

Our Ruling

We find the Petition wanting in merit.

Petitioner’s written statement is admissible in evidence.

The constitutional proscription against the admissibility of admission or confession of guilt obtained in violation of
Section 12, Article III of the Constitution, as correctly observed by the CA and the OSG, is applicable only in
custodial interrogation.

Custodial interrogation means any questioning initiated by law enforcement authorities after a person is taken into
custody or otherwise deprived of his freedom of action in any significant manner. Indeed, a person under custodial
investigation is guaranteed certain rights which attach upon the commencement thereof, viz: (1) to remain silent, (2)
to have competent and independent counsel preferably of his own choice, and (3) to be informed of the two other
rights above.19 In the present case, while it is undisputed that petitioner gave an uncounselled written statement
regarding an anomaly discovered in the branch he managed, the following are clear: (1) the questioning was not
initiated by a law enforcement authority but merely by an internal affairs manager of the bank; and, (2) petitioner
was neither arrested nor restrained of his liberty in any significant manner during the questioning. Clearly, petitioner
cannot be said to be under custodial investigation and to have been deprived of the constitutional prerogative during
the taking of his written statement.

Moreover, in Remolona v. Civil Service Commission,20 we declared that the right to counsel "applies only to
admissions made in a criminal investigation but not to those made in an administrative investigation." Amplifying
further on the matter, the Court made clear in the recent case of Carbonel v. Civil Service Commission:21

However, it must be remembered that the right to counsel under Section 12 of the Bill of Rights is meant to protect a
suspect during custodial investigation. Thus, the exclusionary rule under paragraph (2), Section 12 of the Bill of
Rights applies only to admissions made in a criminal investigation but not to those made in an administrative
investigation.22

Here, petitioner’s written statement was given during an administrative inquiry conducted by his employer in
connection with an anomaly/irregularity he allegedly committed in the course of his employment. No error can
therefore be attributed to the courts below in admitting in evidence and in giving due consideration to petitioner’s
written statement as there is no constitutional impediment to its admissibility.

Petitioner’s written statement was given voluntarily, knowingly and intelligently.

Petitioner attempts to convince us that he signed, under duress and intimidation, an already prepared typewritten
statement. However, his claim lacks sustainable basis and his supposition is just an afterthought for there is nothing
in the records that would support his claim of duress and intimidation.

Moreover, "it is settled that a confession or admission is presumed voluntary until the contrary is proved and the
confessant bears the burden of proving the contrary."23 Petitioner failed to overcome this presumption. On the
contrary, his written statement was found to have been executed freely and consciously. The pertinent details he
narrated in his statement were of such nature and quality that only a perpetrator of the crime could furnish. The
details contained therein attest to its voluntariness. As correctly pointed out by the CA:

As the trial court noted, the written statement (Exhibit N) of appellant is replete with details which could only be
supplied by appellant. The statement reflects spontaneity and coherence which cannot be associated with a mind to
which intimidation has been applied. Appellant’s answers to questions 14 and 24 were even initialed by him to
indicate his conformity to the corrections made therein. The response to every question was fully informative, even
beyond the required answers, which only indicates the mind to be free from extraneous restraints.24

In People v. Muit,25 it was held that "one of the indicia of voluntariness in the execution of petitioner’s extrajudicial
statement is that it contains many details and facts which the investigating officers could not have known and could
not have supplied without the knowledge and information given by him."

Also, the fact that petitioner did not raise a whimper of protest and file any charges, criminal or administrative,
against the investigator and the two policemen present who allegedly intimidated him and forced him to sign negate
his bare assertions of compulsion and intimidation. It is a settled rule that where the defendant did not present
evidence of compulsion, where he did not institute any criminal or administrative action against his supposed
intimidators, where no physical evidence of violence was presented, his extrajudicial statement shall be considered
as having been voluntarily executed.26
Neither will petitioner’s assertion that he did not read the contents of his statement before affixing his signature
thereon "just to get it over with" prop up the instant Petition. To recall, petitioner has a masteral degree from a
reputable educational institution and had been a bank manager for quite a number of years. He is thus expected to
fully understand and comprehend the significance of signing an instrument. It is just unfortunate that he did not
exercise due diligence in the conduct of his own affairs. He can therefore expect no consideration for it.

Forgery duly established.

"Forgery is present when any writing is counterfeited by the signing of another’s name with intent to defraud."27 It
can be established by comparing the alleged false signature with the authentic or genuine one. A finding of forgery
does not depend entirely on the testimonies of government handwriting experts whose opinions do not mandatorily
bind the courts. A trial judge is not precluded but is even authorized by law28 to conduct an independent examination
of the questioned signature in order to arrive at a reasonable conclusion as to its authenticity.

In this case, the finding of forgery on the signature of Romeo Tan (Tan) appearing in the promissory notes and
cashier’s checks was not anchored solely on the result of the examination conducted by the National Bureau of
Investigation (NBI) Document Examiner. The trial court also made an independent examination of the questioned
signatures and after analyzing the same, reached the conclusion that the signatures of Tan appearing in the
promissory notes are different from his genuine signatures appearing in his Deposit Account Information and
Specimen Signature Cards on file with the bank. Thus, we find no reason to disturb the above findings of the RTC
which was affirmed by the CA. A rule of long standing in this jurisdiction is that findings of a trial court, when affirmed
by the CA, are accorded great weight and respect. Absent any reason to deviate from the said findings, as in this
case, the same should be deemed conclusive and binding to this Court.

No suppression of evidence on the part of the prosecution.

Petitioner claims that the prosecution should have presented Tan in court to shed light on the matter. His non-
presentation created the presumption that his testimony if given would be adverse to the case of the prosecution.
Petitioner thus contends that the prosecution suppressed its own evidence.

Such contention is likewise untenable. The prosecution has the prerogative to choose the evidence or the witnesses
it wishes to present. It has the discretion as to how it should present its case.29 Moreover, the presumption that
suppressed evidence is unfavorable does not apply where the evidence was at the disposal of both the defense and
the prosecution.30 In the present case, if petitioner believes that Tan is the principal witness who could exculpate him
from liability by establishing that it was Tan and not him who signed the subject documents, the most prudent thing
to do is to utilize him as his witness. Anyway, petitioner has the right to have compulsory process to secure Tan’s
attendance during the trial pursuant to Article III, Section 14(2)31 of the Constitution. The records show, however,
that petitioner did not invoke such right. In view of these, no suppression of evidence can be attributed to the
prosecution.

Petitioner’s denial is unavailing.

The Court is also not persuaded by the bare and uncorroborated allegation of petitioner that the loans covered by
the promissory notes and the cashier’s checks were personally transacted by Tan against his approved letter of
credit, although he admittedly never saw Tan affix his signature thereto. Again, this allegation, as the RTC aptly
observed, is not supported by established evidence. "It is settled that denials which are unsubstantiated by clear
and convincing evidence are negative and self-serving evidence. They merit no weight in law and cannot be given
greater evidentiary value over the testimony of credible witnesses who testified on affirmative matters."32 The chain
of events in this case, from the preparation of the promissory notes to the encashment of the cashier’s checks, as
narrated by the prosecution witnesses and based on petitioner’s own admission, established beyond reasonable
doubt that he committed the unlawful acts alleged in the Informations.

Elements of falsification of commercial documents established.

Falsification of documents under paragraph 1, Article 172 in relation to Article 171 of the Revised Penal Code (RPC)
refers to falsification by a private individual or a public officer or employee, who did not take advantage of his official
position, of public, private or commercial document. The elements of falsification of documents under paragraph 1,
Article 172 of the RPC are: (1) that the offender is a private individual or a public officer or employee who did not
take advantage of his official position; (2) that he committed any of the acts of falsification enumerated in Article 171
of the RPC;33 and, (3) that the falsification was committed in a public, official or commercial document.

All the above-mentioned elements were established in this case. First, petitioner is a private individual. Second, the
acts of falsification consisted in petitioner’s (1) counterfeiting or imitating the handwriting or signature of Tan and
causing it to appear that the same is true and genuine in all respects; and (2) causing it to appear that Tan has
participated in an act or proceeding when he did not in fact so participate. Third, the falsification was committed in
promissory notes and checks which are commercial documents. Commercial documents are, in general, documents
or instruments which are "used by merchants or businessmen to promote or facilitate trade or credit
transactions."34 Promissory notes facilitate credit transactions while a check is a means of payment used in business
in lieu of money for convenience in business transactions. A cashier’s check necessarily facilitates bank
transactions for it allows the person whose name and signature appear thereon to encash the check and withdraw
the amount indicated therein.35

Falsification as a necessary means to commit estafa.

When the offender commits on a public, official or commercial document any of the acts of falsification enumerated
in Article 171 as a necessary means to commit another crime like estafa, theft or malversation, the two crimes form
a complex crime. Under Article 48 of the RPC, there are two classes of a complex crime. A complex crime may refer
to a single act which constitutes two or more grave or less grave felonies or to an offense as a necessary means for
committing another.

In Domingo v. People,36 we held:

The falsification of a public, official, or commercial document may be a means of committing estafa, because before
the falsified document is actually utilized to defraud another, the crime of falsification has already been
consummated, damage or intent to cause damage not being an element of the crime of falsification of public, official
or commercial document. In other words, the crime of falsification has already existed. Actually utilizing that falsified
public, official or commercial document to defraud another is estafa. But the damage is caused by the commission
of estafa, not by the falsification of the document. Therefore, the falsification of the public, official or commercial
document is only a necessary means to commit estafa.

"Estafa is generally committed when (a) the accused defrauded another by abuse of confidence, or by means of
deceit, and (b) the offended party or a third party suffered damage or prejudice capable of pecuniary
estimation."37 Deceit is the false representation of a matter of fact, whether by words or conduct, by false or
misleading allegations, or by concealment of that which should have been disclosed which deceives or is intended
to deceive another so that he shall act upon it to his legal injury."38

The elements of estafa obtain in this case. By falsely representing that Tan requested him to process purported
loans on the latter’s behalf, petitioner counterfeited or imitated the signature of Tan in the cashier’s
checks. Through these, petitioner succeeded in withdrawing money from the bank. Once in possession of the
1âw phi 1

amount, petitioner thereafter invested the same in Eurocan Future Commodities. Clearly, petitioner employed deceit
in order to take hold of the money, misappropriated and converted it to his own personal use and benefit, and these
resulted to the damage and prejudice of the bank in the amount of about ₱43 million.

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

The Proper Imposable Penalty

The penalty for falsification of a commercial document under Article 172 of the RPC is prision correccional in its
medium and maximum periods and a fine of not more than ₱5,000.00.
The penalty in estafa cases, on the other hand, as provided under paragraph 1, Article 315 of the RPC is prision
correccional in its maximum period to prision mayor in its minimum period39 if the amount defrauded is over
₱12,000.00 but does not exceed ₱22,000.00. If the amount involved exceeds the latter sum, the same paragraph
provides the imposition of the penalty in its maximum period with an incremental penalty of one year imprisonment
for every ₱10,000.00 but in no case shall the total penalty exceed 20 years of imprisonment.

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

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

There is need, however, to modify the penalties imposed by the trial court as affirmed by the CA in each case
respecting the minimum term of imprisonment. The trial court imposed the indeterminate penalty of imprisonment
from eight (8) years of prision mayor as minimum which is beyond the lawful range. Under the Indeterminate
Sentence Law, the minimum term of the penalty should be within the range of the penalty next lower to that
prescribed by law for the offense. Since the penalty prescribed for the estafa charge against petitioner is prision
correccional maximum to prision mayor minimum, the penalty next lower would then be prision correccional in its
minimum and medium periods which has a duration of six (6) months and one (1) day to four (4) years and two (2)
months. Thus, the Court sets the minimum term of the indeterminate penalty at four (4) years and two (2) months of
prision correccional. Petitioner is therefore sentenced in each case to suffer the indeterminate penalty of four (4)
years and two (2) months of prision correccional as minimum to twenty (20) years of reclusion temporal as
maximum.

WHEREFORE, the Petition is DENIED. The Decision and Resolution of the Court of Appeals in CA-G.R. CR No.
23653 dated December 12, 2006 and September 6, 2007, respectively, are hereby AFFIRMED with the
MODIFICATION that the minimum term of the indeterminate sentence to be imposed upon the petitioner should be
four (4) years and two (2) months of prision correccional.

SO ORDERED.

MARIANO C. DEL CASTILLO

Associate Justice

WE CONCUR:

ANTONIO T. CARPIO
Associate Justice
Chairperson

ARTURO D. BRION JOSE PORTUGAL PEREZ

Associate Justice Associate Justice

ESTELA M. PERLAS-BERNABE
Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision had been reached in consultation before the case was assigned
to the writer of the opinion of the Court’s Division.
ANTONIO T. CARPIO
Associate Justice
Chairperson

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution and the Division Chairperson’s Attestation, I certify that the
conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of
the opinion of the Court's Division.

MARIA LOURDES P. A. SERENO

Chief Justice

Footnotes

1 Rollo, pp. 18-103.

2CA rollo, pp. 206-230; penned by Associate Justice Monina Arevalo-Zenarosa and concurred in by
Associate Justices Martin S. Villarama, Jr. and Lucas P. Bersamin (now members of this Court).

3 Records of Criminal Case No. 98-163806, pp. 396-405; penned by Judge Senecio 0. Ortile.

4 CA rollo, pp. 277-279.

5 Id. at 231-243.

6 Id. at 247-257.

7Records of Criminal Case No. 98-163806, pp. 2-3; records of Criminal Case No. 98-163807, pp. 1-2;
records of Criminal Case No. 98-163808, pp. 1-2; records of Criminal Case No. 98-163809, pp. 1-2; records
of Criminal Case No. 98-163810, pp. 1-2.

8 Records of Criminal Case No. 98-163806, pp. 2-3.

9 Id. at 73.

10 CA rollo, pp. 210-215.

11 Records of Criminal Case No. 98-163806, pp. 396-405.

12 Id. at 404-405.

13 CA rollo, pp. 206-230.

14 Id. at 229-230.

15 Id. at 231.

16 Id. at 277-279.

17 Rollo, p. 671.
18 Exhibit "N," records of Criminal Case No. 98-163806, pp. 189-194.

19 People v. Bandula, G.R. No. 89223, May 27, 1994, 232 SCRA 566, 574.

20 414 Phil. 590, 599 (2001).

21 G.R. No. 187689, September 7, 2010, 630 SCRA 202.

22 Id. at 207.

23 People v. Rapeza, 549 Phil. 378, 404 (2007).

24 CA rollo, p. 220.

25 G.R. No. 181043, October 8, 2008, 568 SCRA 251, 268.

26People v. Del Rosario, 411 Phil. 676, 690-691 (2001), citing People v. Santalani, 181 Phil. 481, 490
(1979), People v. Balane, 208 Phil. 537, 556 (1983) and People v. Villanueva, 213 Phil. 440, 453-454
(1984).

27 Ocampo v. Land Bank of the Philippines, G.R. No. 164968, July 3, 2009, 591 SCRA 562, 570.

28 RULES OF COURT, Rule 132, Section 22.

29 People v. Daco, G.R. No. 168166, October 10, 2008, 568 SCRA 348, 361.

30 People v. Mazo, 419 Phil. 750, 768 (2001), citing People v. Padiernos, 161 Phil. 623, 632-633 (1976).

31 Section 14. (1) x x x

(2) In all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved,
and shall enjoy the right to be heard by himself and counsel, to be informed of the nature and cause
of the accusation against him, to have a speedy, impartial, and public trial, to meet the witnesses
face to face, and to have compulsory process to secure the attendance of witnesses and the
production of evidence in his behalf. However, after arraignment, trial may proceed notwithstanding
the absence of the accused provided that he has been duly notified and his failure to appear is
unjustifiable.

32 People v. Sison, G.R. No. 172752, June 18, 2008, 555 SCRA 156, 170.

33ART. 171. Falsification by public officer, employee; or notary or ecclesiastical minister. – The penalty of
prision mayor and a fine not to exceed 5,000 pesos shall be imposed upon any public officer, employee, or
notary who, taking advantage of his official position, shall falsify a document by committing any of the
following acts:

1. Counterfeiting or imitating any handwriting, signature, or rubric;

2. Causing it to appear that persons have participated in any act or proceeding when they did not in
fact so participate;

3. Attributing to persons who have participated in an act or proceeding statements other than those
in fact made by them;

4. Making untruthful statements in a narration of facts;

5. Altering true dates;

 6. Making any alteration or intercalation in a genuine document which changes its meaning;

7. Issuing in an authenticated form a document purporting to be a copy of an original document

when no such original exists, or including in such copy a statement contrary to, or different from, that
of the genuine original; or

8. Intercalating any instrument or note relative to the issuance thereof in a protocol, registry, or
official book.

xxxx

34 Monteverde v. People, 435 Phil. 906, 921 (2002).

35 Domingo v. People, G.R. No. 186101, October 12, 2009, 603 SCRA 488, 505-506.

36 Id. at 506-507.

37 Eugenio v. People, G.R. No. 168163, March 26, 2008, 549 SCRA 433, 447.

38Joson v. People, G.R. No. 178836, July 23, 2008, 559 SCRA 649, 656 citing People v. Menil, Jr. 394 Phil.
433, 452 (2000).

39 Minimum: 4 years, 2 months and 1 day to 5 years, 5 months and 10 days

Medium: 5 years, 5 months and 11 days to 6 years, 8 months and 20 days

Maximum: 6 years, 8 months and 21 days to 8 years.

9. G.R. No. 159751 December 6, 2006

GAUDENCIO E. FERNANDO and RUDY ESTORNINOS, petitioners,

vs.
COURT OF APPEALS, respondent.

DECISION

QUISUMBING, J.:

This petition for review on certiorari assails the Decision1 dated March 21, 2003 and the Resolution dated
September 2, 2003, of the Court of Appeals in CA-G.R. CR No. 25796, which affirmed the Decision of the Regional
Trial Court of Manila (RTC), Branch 21, in Criminal Case No. 99-176582.

The RTC convicted Gaudencio E. Fernando and Rudy Estorninos for violation of Article 2012 of the Revised Penal
Code, as amended by Presidential Decree Nos. 960 and 969, and sentenced each to imprisonment of four (4) years
and one (1) day to six (6) years of prision correccional, and to pay the fine of P6,000 and cost of suit.

The facts as culled from the records are as follows.

Acting on reports of sale and distribution of pornographic materials, officers of the Philippine National Police
Criminal Investigation and Detection Group in the National Capital Region (PNP-CIDG NCR) conducted police
surveillance on the store bearing the name of Gaudencio E. Fernando Music Fair (Music Fair). On May 5, 1999,
Judge Perfecto Laguio of the Regional Trial Court of Manila, Branch 19, issued Search Warrant No. 99-1216 for
violation of Article 201 of the Revised Penal Code against petitioner Gaudencio E. Fernando and a certain Warren
Tingchuy. The warrant ordered the search of Gaudencio E. Fernando Music Fair at 564 Quezon Blvd., corner Zigay
Street, Quiapo, Manila, and the seizure of the following items:

a. Copies of New Rave Magazines with nude obscene pictures;

b. Copies of IOU Penthouse Magazine with nude obscene pictures;

c. Copies of Hustler International Magazine with nude obscene pictures; and

d. Copies of VHS tapes containing pornographic shows.3

On the same day, police officers of the PNP-CIDG NCR served the warrant on Rudy Estorninos, who, according to
the prosecution, introduced himself as the store attendant of Music Fair. The police searched the premises and
confiscated twenty-five (25) VHS tapes and ten (10) different magazines, which they deemed pornographic.

On September 13, 1999, petitioners with Warren Tingchuy, were charged in an Information which reads as follows:

That on or about May 5, 1999, in the City of Manila, Philippines, the said accused, did then and there
willfully, unlawfully, feloniously, publicly and jointly exhibit indecent or immoral acts, scenes or shows at
Music Fair, located at 564 Quezon Blvd., corner Zigay [S]t., Quiapo[,] this City[,] by then and there selling
and exhibiting obscene copies of x-rated VHS Tapes, lewd films depicting men and women having sexual
intercourse[,] lewd photographs of nude men and women in explicating (sic) positions which acts serve no
other purpose but to satisfy the market for lust or pornography to public view.

Contrary to law.4
When arraigned, petitioners and Tingchuy pleaded not guilty to the offense charged. Thereafter, trial ensued.

The prosecution offered the confiscated materials in evidence and presented the following witnesses: Police
Inspector Rodolfo L. Tababan, SPO4 Rolando Buenaventura and Barangay Chairperson Socorro Lipana, who were
all present during the raid. After the prosecution presented its evidence, the counsel for the accused moved for
leave of court to file a demurrer to evidence, which the court granted. On October 5, 2000, the RTC however denied
the demurrer to evidence and scheduled the reception of evidence for the accused. A motion for reconsideration
was likewise denied.

Thereafter, the accused waived their right to present evidence and instead submitted the case for decision.5

The RTC acquitted Tingchuy for lack of evidence to prove his guilt, but convicted herein petitioners as follows:

WHEREFORE, premises considered, the Court finds accused GAUDENCIO FERNANDO and RUDY
ESTORNINOS GUILTY beyond reasonable doubt of the crime charged and are hereby sentenced to suffer
the indeterminate penalty of FOUR (4) YEARS and ONE (1) DAY as minimum to SIX (6) YEARS of prision
correccional as maximum, to pay fine of P6,000.00 each and to pay the cost.

For failure of the prosecution to prove the guilt of accused WARREN TINGCHUY beyond reasonable doubt,
he is hereby ACQUITTED of the crime charged.

The VHS tapes and the nine (9) magazines utilized as evidence in this case are hereby confiscated in favor
of the government.

SO ORDERED.6

Petitioners appealed to the Court of Appeals. But the appellate courtlatter affirmed in toto the decision of the trial
court, as follows,

WHEREFORE, finding no reversible error on the part of the trial court, the decision appealed from
is AFFIRMED IN TOTO.

Costs against accused-appellants.

SO ORDERED.7

Hence the instant petition assigning the following errors:

I. Respondent court erred in convicting petitioner Fernando even if he was not present at the time of the raid

II. Respondent erred in convicting petitioner Estorninos who was not doing anything illegal at the time of the
raid.8

Simply, the issue in this case is whether the appellate court erred in affirming the petitioners’ conviction.

Petitioners contend that the prosecution failed to prove that at the time of the search, they were selling pornographic
materials. Fernando contends that since he was not charged as the owner of an establishment selling obscene
materials, the prosecution must prove that he was present during the raid and that he was selling the said materials.
Moreover, he contends that the appellate court’s reason for convicting him, on a presumption of continuing
ownership shown by an expired mayor’s permit, has no sufficient basis since the prosecution failed to prove his
ownership of the establishment. Estorninos, on the other hand, insists that he was not an attendant in Music Fair,
nor did he introduce himself so.9

The Solicitor General counters that owners of establishments selling obscene publications are expressly held liable
under Article 201, and petitioner Fernando’s ownership was sufficiently proven. As the owner, according to the
Solicitor General, Fernando was naturally a seller of the prohibited materials and liable under the Information. The
Solicitor General also maintains that Estorninos was identified by Barangay Chairperson Socorro Lipana as the
store attendant, thus he was likewise liable.10

At the outset, we note that the trial court gave petitionersthem the opportunity to adduce present their evidence to
disprove refute the prosecution’s evidence.11 . Instead, they waived their right to present evidence and opted to
submitted the case for decision.a1 12 The trial court therefore resolved the case on the basis of prosecution’s
evidence against the petitioners.

As obscenity is an unprotected speech which the State has the right to regulate, the State in pursuing its mandate to
protect, as parens patriae, the public from obscene, immoral and indecent materials must justify the regulation or
limitation.

One such regulation is Article 201 of the Revised Penal Code. To be held liable, the prosecution must prove that (a)
the materials, publication, picture or literature are obscene; and (b) the offender sold, exhibited, published or gave
away such materials.13 Necessarily, that the confiscated materials are obscene must be proved.

Almost a century has passed since the Court first attempted to define obscenity in People v. Kottinger.14 There the
Court defined obscenity as something which is offensive to chastity, decency or delicacy. The test to determine the
existence of obscenity is, whether the tendency of the matter charged as obscene, is to deprave or corrupt those
whose minds are open to such immoral influences and into whose hands a publication or other article charged as
being obscene may fall.15 Another test according to Kottinger is "that which shocks the ordinary and common sense
of men as an indecency."16 But, Kottinger hastened to say that whether a picture is obscene or indecent must
depend upon the circumstances of the case, and that ultimately, the question is to be decided by the judgment of
the aggregate sense of the community reached by it.17

Thereafter, the Court in People v. Go Pin18 and People v. Padan y Alova, et al.,19 involving a prosecution under
Article 201 of the Revised Penal Code, laid the tests which did little to clearly draw the fine lines of obscenity.

In People v. Go Pin, the Court said:

If such pictures, sculptures and paintings are shown in art exhibits and art galleries for the cause of art, to be
viewed and appreciated by people interested in art, there would be no offense committed. However, the
pictures here in question were used not exactly for art’s sake but rather for commercial purposes. In other
words, the supposed artistic qualities of said pictures were being commercialized so that the cause of art
was of secondary or minor importance. Gain and profit would appear to have been the main, if not the
exclusive consideration in their exhibition; and it would not be surprising if the persons who went to see
those pictures and paid entrance fees for the privilege of doing so, were not exactly artists and persons
interested in art and who generally go to art exhibitions and galleries to satisfy and improve their artistic
tastes, but rather people desirous of satisfying their morbid curiosity and taste, and lust, and for love [of]
excitement, including the youth who because of their immaturity are not in a position to resist and shield
themselves from the ill and perverting effects of these pictures.20

People v. Padan y Alova, et al. in a way reaffirmed the standards set in Go Pin but with its own test of "redeeming
feature." The Court therein said that:

[A]n actual exhibition of the sexual act, preceded by acts of lasciviousness, can have no redeeming feature.
In it, there is no room for art. One can see nothing in it but clear and unmitigated obscenity, indecency, and
an offense to public morals, inspiring and causing as it does, nothing but lust and lewdness, and exerting a
corrupting influence specially on the youth of the land.21

Notably, the Court in the later case of Gonzales v. Kalaw Katigbak,22 involving motion pictures, still applied the
"contemporary community standards" of Kottinger but departed from the rulings of Kottinger, Go Pin and Padan y
Alova in that the Court measures obscenity in terms of the "dominant theme" of the material taken as a "whole"
rather than in isolated passages.

Later, in Pita v. Court of Appeals, concerning alleged pornographic publications, the Court recognized
that Kottinger failed to afford a conclusive definition of obscenity, and that both Go Pin and Padan y Alova raised
more questions than answers such as, whether the absence or presence of artists and persons interested in art and
who generally go to art exhibitions and galleries to satisfy and improve their artistic tastes, determine what art is; or
that if they find inspiration in the exhibitions, whether such exhibitions cease to be obscene.23 Go Pin and Padan y
Alova gave too much latitude for judicial arbitrament, which has permitted ad lib of ideas and "two-cents worths"
among judges as to what is obscene or what is art.24

The Court in Pita also emphasized the difficulty of the question and pointed out how hazy jurisprudence is on
obscenity and how jurisprudence actually failed to settle questions on the matter. Significantly, the dynamism of
human civilization does not help at all. It is evident that individual tastes develop, adapt to wide-ranging influences,
and keep in step with the rapid advance of civilization.25 It seems futile at this point to formulate a perfect definition
of obscenity that shall apply in all cases.

There is no perfect definition of "obscenity" but the latest word is that of Miller v. California which established basic
guidelines, to wit: (a) whether to the average person, applying contemporary standards would find the work, taken
as a whole, appeals to the prurient interest; (b) whether the work depicts or describes, in a patently offensive way,
sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks
serious literary, artistic, political, or scientific value.26 But, it would be a serious misreading of Miller to conclude that
the trier of facts has the unbridled discretion in determining what is "patently offensive."27 No one will be subject to
prosecution for the sale or exposure of obscene materials unless these materials depict or describe patently
offensive "hard core" sexual conduct.28 Examples included (a) patently offensive representations or descriptions of
ultimate sexual acts, normal or perverted, actual or simulated; and (b) patently offensive representations or
descriptions of masturbation, excretory functions, and lewd exhibition of the genitals.29 What remains clear is that
obscenity is an issue proper for judicial determination and should be treated on a case to case basis and on the
judge’s sound discretion.

In this case, the trial court found the confiscated materials obscene and the Court of Appeals affirmed such findings.
The trial court in ruling that the confiscated materials are obscene, reasoned as follows:

Are the magazines and VHS tapes confiscated by the raiding team obscene or offensive to morals? . . .

Pictures of men and women in the nude doing the sexual act appearing in the nine (9) confiscated
magazines namely Dalaga, Penthouse, Swank, Erotic, Rave, Playhouse, Gallery and two (2) issues of QUI
are offensive to morals and are made and shown not for the sake of art but rather for commercial purposes,
that is gain and profit as the exclusive consideration in their exhibition. The pictures in the magazine
exhibited indecent and immoral scenes and acts…The exhibition of the sexual act in their magazines is but
a clear and unmitigated obscenity, indecency and an offense to public morals, inspiring…lust and lewdness,
exerting a corrupting influence especially on the youth. (Citations omitted)

The VHS tapes also [exhibit] nude men and women doing the sexual intercourse. The tape entitled "Kahit sa
Pangarap Lang" with Myra Manibog as the actress shows the naked body of the actress. The tape exhibited
indecent and immoral scenes and acts. Her dancing movements excited the sexual instinct of her male
audience. The motive may be innocent, but the performance was revolting and shocking to good minds...

In one (1) case the Supreme Court ruled:

Since the persons who went to see those pictures and paid entrance fees were usually not artists or
persons interested in art to satisfy and inspire their artistic tastes but persons who are desirous of
satisfying their morbid curiosity, taste and lust and for [love] of excitement, including the youth who
because of their immaturity are not in a position to resist and shield themselves from the ill and
perverting effects of the pictures, the display of such pictures for commercial purposes is a violation
of Art. 201. If those pictures were shown in art exhibits and art galleries for the cause of art, to be
viewed and appreciated by people interested in art, there would be no offense committed (People
vs. Go Pin, 97 Phil 418).

[B]ut this is not so in this case.30

Findings of fact of the Court of Appeals affirming that of the trial court are accorded great respect, even by this
Court, unless such findings are patently unsupported by the evidence on record or the judgment itself is based on
misapprehension of facts.31 In this case, petitioners neither presented contrary evidence nor questioned the trial
court’s findings. There is also no showing that the trial court, in finding the materials obscene, was arbitrary.

Did petitioners participate in the distribution and exhibition of obscene materials?

We emphasize that mere possession of obscene materials, without intention to sell, exhibit, or give them away, is
not punishable under Article 201, considering the purpose of the law is to prohibit the dissemination of obscene
materials to the public. The offense in any of the forms under Article 201 is committed only when there is
publicity.32 The law does not require that a person be caught in the act of selling, giving away or exhibiting obscene
materials to be liable, for as long as the said materials are offered for sale, displayed or exhibited to the public. In
the present case, we find that petitioners are engaged in selling and exhibiting obscene materials.

Notably, the subject premises of the search warrant was the Gaudencio E. Fernando Music Fair, named after
petitioner Fernando.33 The mayor’s permit was under his name. Even his bail bond shows that Hhe lives in the same
place.34 Moreover, the mayor’s permit dated August 8, 1996, shows that he is the owner/operator of the
store.35 While the mayor’s permit had already expired, it does not negate the fact that Fernando owned and
operated the establishment. It would be absurd to make his failure to renew his business permit and illegal operation
a shield from prosecution of an unlawful act. Furthermore, when he preferred not to present contrary evidence, the
things which he possessed were presumptively his.36

Petitioner Estorninos is likewise liable as the store attendant actively engaged in selling and exhibiting the obscene
materials. Prosecution witness Police Inspector Tababan, who led the PNP-CIDG NCR that conducted the search,
identified him as the store attendant upon whom the search warrant was served.37 Tababan had no motive for
testifying falsely against Estorninos and we uphold the presumption of regularity in the performance of his duties.
Lastly, this Court accords great respect to and treats with finality the findings of the trial court on the matter of
credibility of witnesses, absent any palpable error or arbitrariness in their findings.38 In our view, no reversible error
was committed by the appellate court as well as the trial court in finding the herein petitioners guilty as charged.

WHEREFORE, the Decision dated March 21, 2003 and the Resolution dated September 2, 2003, of the Court of
Appeals affirming the Decision of the Regional Trial Court of Manila, Branch 21, in Criminal Case No. 99-176582 are
hereby AFFIRMED.

SO ORDERED.

Carpio, Carpio Morales, Tinga, and Velasco, Jr., JJ., concur.

Footnotes

1 Rollo, pp. 44-52.

2ART. 201. Immoral doctrines, obscene publications and exhibitions, and indecent shows. – The penalty
of prision mayor or a fine ranging from six thousand to twelve thousand pesos, or both such imprisonment
and fine, shall be imposed upon:

1. Those who shall publicly expound or proclaim doctrines openly contrary to public morals;

2. (a) The authors of obscene literature, published with their knowledge in any form; the editors publishing
such literature; and the owners/operators of the establishment selling the same;

(b) Those who, in theaters, fairs, cinematographs, or any other place, exhibit, indecent or immoral plays,
scenes, acts or shows, it being understood that the obscene literature or indecent or immoral plays, scenes,
acts or shows, whether live or in film, which are prescribed by virtue hereof, shall include those which: (1)
glorify criminals or condone crimes; (2) serve no other purpose but to satisfy the market for violence, lust or
pornography; (3) offend any race or religion; (4) tend to abet traffic in and use of prohibited drugs; and (5)
are contrary to law, public order, morals, good customs, established policies, lawful orders, decrees and
edicts;

3. Those who shall sell, give away, or exhibit films, prints, engravings, sculptures, or literature which are
offensive to morals.

3 Records, p. 3.

4 Id. at 1.

5 Id. at 150.

6 Rollo, pp. 42-43.

7 Id. at 51.

8 Id. at 13.

9 Id. at 101-103.

10 Id. at 120-122.

11 Records, pp. 135-136 and 145.

12 Id. at 150.

13 R. Aquino, The Revised Penal Code book two 395 (1987).

14 45 Phil. 352 (1923).

15 Id. at 356.

16 Id. at 356-357.

17 Pita v. Court of Appeals, G.R. No. 80806, October 5, 1989, 178 SCRA 362, 368.

18 97 Phil. 418 (1955).

19 101 Phil. 749 (1957).

20 People v. Go Pin, supra note 18, at 419.

21 People v. Padan y Alova, et al., supra note 19, at 752.

22 No. L-69500, July 22, 1985, 137 SCRA 717, 726.

23 Pita v. Court of Appeals, supra note 17, at 369-370.

24 Id. at 370.

25 Id. at 372.

26 Id. at 371.

27 Jenkins v. Georgia, 418 U.S. 153 (1974).

28 Id.

29 Miller v. California, 413 U.S. 15 (1973).

30 Rollo, pp. 40-42.

Pangonorom v. People, G.R. No. 143380, April 11, 2005, 455 SCRA 211, 220 and Jose v. People, G.R.
31

No. 148371, August 12, 2004, 436 SCRA 294, 303.

32 L. Reyes, Revised Penal Code Book Two 347 (1998).

33 Records, p. 3.

34 Id. at 27.

35 Id. at 71.

36 People v. Agcaoili, G.R. No. 92143, February 26, 1992, 206 SCRA 606, 613.

37 TSN, October 11, 1999, p. 6.

38 People v. Khor, G.R. No. 126391, May 19, 1999, 307 SCRA 295, 326.

A1Explain the demurrer to evidence. Why is non-presentation of evidence detrimental to the petitioners’
case?
 10. G.R. No. 172602 April 13, 2007

HENRY T. GO, Petitioner,

vs.
THE FIFTH DIVISION, SANDIGANBAYAN and THE OFFICE OF THE SPECIAL PROSECUTOR, OFFICE OF
THE OMBUDSMAN, Respondents.

DECISION

CALLEJO, SR., J.:

Before the Court is the petition for certiorari under Rules 65 of the Rules of Court filed by Henry T. Go seeking to
nullify the Resolution dated December 6, 2005 of the Sandiganbayan in Criminal Case No. 28092, entitled People of
the Philippines vs. Vicente C. Rivera, Jr. and Henry T. Go, which denied his motion to quash. Likewise sought to be
nullified is the Sandiganbayan Resolution of March 24, 2006 denying petitioner Go’s motion for reconsideration.

The factual and procedural antecedents of the case are as follows:

On May 5, 2003, this Court rendered the Decision in Agan, Jr. v. Philippine International Air Terminals Co., Inc.
(PIATCO),1 declaring as null and void the 1997 Concession Agreement, the Amended and Restated Concession
Agreement (ARCA), and the Supplemental Contracts entered into between the Government, through the
Department of Transportation and Communications (DOTC) and the Manila International Airport Authority (MIAA),
and PIATCO.

By the aforementioned contracts (collectively known as the PIATCO contracts), the Government awarded in favor of
PIATCO the project for the development of the Ninoy Aquino International Airport Passenger Terminal III (NAIA IPT
III) under a build-operate-and-transfer (BOT) scheme pursuant to Republic Act (RA) No. 6957 as amended by RA
7718 (BOT Law).2

The Court ruled that Paircargo Consortium, PIATCO’s predecessor-in-interest, was not a qualified bidder as it failed
to meet the financial capability requirement under the BOT Law. Moreover, the PIATCO contracts were declared null
and void for being contrary to public policy. The penultimate paragraph of the Court’s Decision states thus:

CONCLUSION

In sum, this Court rules that in view of the absence of the requisite financial capacity of the Paircargo Consortium,
predecessor of respondent PIATCO, the award by the PBAC of the contract for the construction, operation and
maintenance of the NAIA IPT III is null and void. Further, considering that the 1997 Concession Agreement contains
material and substantial amendments, which amendments had the effect of converting the 1997 Concession
Agreement into an entirely different agreement from the contract bidded upon, the 1997 Concession Agreement is
similarly null and void for being contrary to public policy. The provisions under Section 4.04(b) and (c) in relation to
Section 1.06 of the 1997 Concession Agreement and Section 4.04(c) in relation to Section 1.06 of the ARCA, which
constitute a direct government guarantee expressly prohibited by, among others, the BOT Law and its Implementing
Rules and Regulations are also null and void. The Supplements, being accessory contracts to the ARCA, are
likewise null and void.3

Subsequently, an affidavit-complaint, later amended, was filed with the Office of the Ombudsman by Ma. Cecilia L.
Pesayco, Corporate Secretary of Asia’s Emerging Dragon Corporation (AEDC), charging several persons in
connection with the NAIA IPT III project. The AEDC was the original proponent thereof which, however, lost to
PIATCO when it failed to match the latter’s bid price.

After conducting a preliminary investigation thereon, the Office of the Ombudsman filed with the Sandiganbayan the
Information dated January 13, 2005 charging Vicente C. Rivera, as then DOTC Secretary, and petitioner Go, as
Chairman and President of PIATCO, with violation of Section 3(g)4 of RA 3019, also known as the Anti-Graft and
Corrupt Practices Act. The case was docketed as Criminal Case No. 28092, entitled People of the Philippines vs.
Vicente C. Rivera, Jr. and Henry T. Go. The Information reads:

INFORMATION

The undersigned Graft Investigation and Prosecution Officer II, Office of the Deputy Ombudsman for Luzon,
accuses VICENTE C. RIVERA, JR. and HENRY T. GO with Violation of Sec. 3 (g), R.A. No. 3019 committed as
follows:

On or about November 26, 1998, or sometime prior or subsequent thereto, in Quezon City, Philippines and within
the jurisdiction of this Honorable Court, the accused VICENTE C. RIVERA, JR., Secretary of the Department of
Transportation and Communications (DOTC), committing the offense in relation to his office and taking advantage of
the same, in conspiracy with accused HENRY T. GO, Chairman and President of the Philippine International Air
Terminals, Co., Inc. (PIATCO), did then and there, willfully, unlawfully and feloniously enter into an Amended and
Restated Concession Agreement (ARCA), after the project for the construction of the Ninoy Aquino International
Passenger Terminal III (NAIA IPT III) was awarded to Paircargo Consortium/PIATCO, which ARCA substantially
amended the draft Concession Agreement covering the construction of the NAIA IPT III under Republic Act 6957 as
amended by Republic Act 7718 (BOT Law) providing that the government shall assume the liabilities of PIATCO in
the event of the latter’s default specifically Article IV, Section 4.04 (c) in relation to Article I, Section 1.06 of the
ARCA which term is more beneficial to PIATCO and in violation of the BOT law, and manifestly and grossly
disadvantageous to the government of the Republic of the Philippines.

CONTRARY TO LAW.5

On February 11, 2005, petitioner Go posted a cash bond for his provisional liberty.

On February 15, 2005, the Sandiganbayan issued a Hold Departure Order against Rivera and petitioner Go.

On March 28, 2005, petitioner Go was arraigned and entered a plea of "not guilty."

On May 26, 2005, Rivera filed a Motion for Judicial Determination (or Re-Determination) of Probable Cause and
Motion to Dismiss. The Sandiganbayan gave petitioner Go a period of ten (10) days within which to file a comment
thereon.

On June 20, 2005, petitioner Go filed his Comment with Motion to Quash. Adopting the view advanced by Rivera,
petitioner Go harped on the alleged "missing documents," including Pesayco’s amended affidavit-complaint and
those others that were mentioned in the resolution of the Office of the Deputy Ombudsman finding probable cause
against Rivera and petitioner Go, but which were not allegedly in the records. Petitioner Go maintained that apart
from the bare allegations contained in Pesayco’s affidavit-complaint, there was no supporting evidence for the
finding of the existence of probable cause against him and Rivera. Petitioner Go further alleged that he could not be
charged under Section 3(g) of RA 3019 because he is not a public officer and neither is he capacitated to enter into
a contract or transaction on behalf of the government. At least one of the important elements of the crime under
Section 3(g) of RA 3019 is not allegedly present in his case.

On June 21, 2005, petitioner Go filed a Manifestation with Motion to Substitute the Comment with Motion to Quash,
which the prosecution, through the Office of the Ombudsman, opposed.

On December 6, 2005, the Sandiganbayan issued the assailed Resolution denying Rivera’s Motion for Judicial
Determination (Re-Determination) of Probable Cause and Motion to Dismiss and petitioner Go’s Motion to Quash.

The Sandiganbayan ruled that, contrary to the prosecution’s submission, it could still entertain petitioner Go’s Motion
to Quash even after his arraignment considering that it was based on the ground that the facts charged do not
constitute an offense. Nonetheless, the Sandiganbayan denied petitioner Go’s Motion to Quash holding that,
contrary to his claim, the allegations in the Information actually make out the offense charged. More particularly, the
allegations that accused Rivera, as DOTC Secretary, in conspiracy with petitioner Go, entered into the ARCA with
petitioner Go/PIATCO, which agreement was manifestly and grossly disadvantageous to the government, are
constitutive of the elements of the offense charged as defined under Section 3(g) of RA 3019.
The Sandiganbayan explained that petitioner Go’s contentions that he is not a public officer, he did not conspire with
Rivera in the execution of the ARCA and, in any case, the said agreement cannot be said to be manifestly and
grossly disadvantageous to the government, could not be properly considered for the purpose of quashing the
Information on the ground relied upon by him. According to the Sandiganbayan, these matters raised by petitioner
Go have to be proved during trial.

The decretal portion of the assailed Sandiganbayan Resolution reads:

WHEREFORE, in light of the foregoing, the "Motion for Determination (Re-Determination) of Probable Cause and
Motion to Dismiss" and the "Motion to Quash," filed by accused Vicente C. Rivera, Jr. and Henry T. Go, respectively,
are hereby DENIED.

SO ORDERED.6

Petitioner Go filed a motion for reconsideration thereof but it was denied by the Sandiganbayan in the Resolution
dated March 24, 2006.

Petitioner Go now seeks recourse to the Court and, in support of his petitioner, alleges that:

A.

The Honorable Sandiganbayan committed grave abuse of discretion amounting to lack or excess of jurisdiction in
not ruling that Section 3(g) does not embrace a private person within its proviso.

B.

The Honorable Sandiganbayan committed grave abuse of discretion amounting to lack or excess of jurisdiction in
not ruling that there is no probable cause to hold petitioner for trial.7

Petitioner Go contends that Section 3(g) of RA 3019, by its text, cannot be extended or even enlarged by implication
or intendment to bring within its limited scope private persons. The said provision of law allegedly punishes only
public officers as it penalizes the act of "entering, on behalf of the government, into any contract or transaction
manifestly and grossly disadvantageous to the same, whether or not the public officer profited or will profit thereby."
As a private person, he could not allegedly enter into a contract "on behalf of the government," there being no
showing of any agency relations or special authority for him to act for and on behalf of the government.

Citing several cases,8 petitioner Go enumerates the following elements of Section 3(g) of RA 3019:

(1) that the accused is a public officer;

(2) that he entered into a contract or transaction on behalf of the government; and

(3) that such contract or transaction is grossly and manifestly disadvantageous to the government.

He also cites Marcos v. Sandiganbayan9 where the Court acquitted then First Lady Imelda R. Marcos of the charge
of violation of Section 3(g) of RA 3019 as it found that she did not sign the subject Lease Agreement, entered into
between the Light Railway Transit Authority (LRTA) and Philippine General Hospital Foundation, Inc. (PGHFI), as a
public officer, but in her capacity as Chairman of the PGHFI, a private entity. As such, the Court held that the first
element of the offense charged, i.e., that the accused is a public officer, was wanting.

Petitioner Go claims that, in the same manner, the first element of the offense charged against him is absent
because he is not a public officer who is authorized by law to bind the government through the act of "entering into a
contract." He also points out that, similar to his case, in Marcos, the Information also alleged that the former First
Lady conspired with a public officer, then Minister Jose P. Dans of the Ministry of Transportation and
Communications, in entering into a contract. Nonetheless, the Court therein dismissed the allegation of conspiracy.
Petitioner Go maintains that by any of its definition,10 he cannot be considered a "public officer." Further, only a
public officer can enter into a

contract in representation of the government. He stresses that the first element of the offense, i.e., that the accused
is a public officer, is an essential ingredient of the crime under Section 3(g) of RA 3019. He likens it to the crime of
parricide where the essential element is the relationship of the offender to the victim and, citing a criminal law book
author, a stranger who cooperates in the execution of the offense is not allegedly guilty of this crime. The stranger is
allegedly either liable for homicide or murder but never by "conspiracy to commit parricide."11

By parity of reasoning, according to petitioner Go, the first essential element of the crime penalized under Section
3(g) of RA 3019 is that the offender must be a public officer. Since he is not a public officer, one of the essential
elements of the offense is lacking; hence, there is no other recourse but to quash the Information.

Section 9 of RA 3019 was also cited which reads:

SEC. 9. Penalties for violation. –

(a) Any public officer or private person committing any of the unlawful acts or omissions enumerated in Sections 3,
4, 5, and 6 of this Act shall be punished with imprisonment for not less than six years and one month or fifteen
years, perpetual disqualification from public office, and confiscation or forfeiture in favor of the Government of any
prohibited interest and unexplained wealth manifestly out of proportion to his salary and other lawful income.

xxx

Petitioner Go posits that had it been the intention of the lawmakers to penalize private persons who supposedly
"conspired" with public officers in violation of Sections 3, 4, 5 and 6 of RA 3019, it could have easily used the
conjunctive "and," not "or," between the terms "public officer" and "private person" in Section 9 thereof.

Petitioner Go takes exception to the Sandiganbayan’s pronouncement that even as a private individual he is not
excluded from the coverage of Section 3(g) of RA 3019 because he is not being accused singly but as someone
who conspired with a public officer in violating the said law. According to petitioner Go, this proposition applies only
to Section 3(e)12 of RA 3019, the elements of which include that "the accused are public officers or private persons
charged in conspiracy with them."13 He stresses that, unlike Section 3(e) of RA 3019, Section 3(g) thereof penalizes
only public officers as the operative phrase in the latter provision is "on behalf of the government."

Petitioner Go vigorously asserts that there is no basis for the finding of probable cause against him for violation of
Section 3(g) of RA 3019. In particular, he insists that the allegation of conspiracy between Rivera and himself is not
supported by any evidence. He makes an issue out of those documents that were mentioned in the resolution of the
Deputy Ombudsman finding probable cause against him but were not in the records of the Sandiganbayan. His
mere signing of the ARCA does not allegedly establish culpability for violation of RA 3019. Further, he faults the
Sandiganbayan for invoking the doctrine of non-interference by the courts in the determination by the Ombudsman
of the existence of probable cause. It is petitioner Go’s view that the Sandiganbayan should have ordered the
quashal of the Information for palpable want of probable cause coupled with the absence of material documents.

The petition is bereft of merit.

For clarity, Section 3(g) of RA 3019 is quoted below anew:

SEC. 3. Corrupt practices of public officers. – In addition to acts or omissions of public officers already penalized by
existing law, the following shall constitute corrupt practices of any public officer and are hereby declared to be
unlawful:

xxx

(g) Entering, on behalf of the Government, into any contract or transaction manifestly and grossly disadvantageous
to the same, whether or not the public officer profited or will profit thereby.
As earlier mentioned, the elements of this offense are as follows:

(1) that the accused is a public officer;

(2) that he entered into a contract or transaction on behalf of the government; and

(3) that such contract or transaction is grossly and manifestly disadvantageous to the government.14

Contrary to the contention of petitioner Go, however, the fact that he is not a public officer does not necessarily take
him out of the ambit of Section 3(g) of RA 3019. Petitioner Go’s simplistic syllogism, i.e., he is not a public officer
ergo he cannot be charged with violation of Section 3(g) of RA 3019, goes against the letter and spirit of the avowed
policy of RA 3019 as embodied in Section 1 thereof:

SEC. 1. Statement of policy. - It is the policy of the Philippine Government, in line with the principle that a public
office is a public trust, to repress certain acts of public officers and private persons alike which constitute graft or
corrupt practices or which may lead thereto.

As early as in 1970, through the erudite Justice J.B.L. Reyes in Luciano v. Estrella,15 the Court had ascertained the
scope of Section 3(g) of RA 3019 as applying to both public officers and private persons:

x x x [T]he act treated thereunder [referring to Section 3(g) of RA 3019] partakes the nature of malum prohibitum; it
is the commission of that act as defined by law, not the character or effect thereof, that determines whether or not
the provision has been violated. And this construction would be in consonance with the announced purpose for
which Republic Act 3019 was enacted, which is the repression of certain acts of public officers and private persons
constituting graft or corrupt practices act or which may lead thereto.16

Like in the present case, the Information in the said case charged both public officers and private persons with
violation of Section 3(g) of RA 3019.

Section 9 of RA 3019 buttresses the conclusion that the anti-graft law’s application extends to both public officers
and private persons. The said provision, quoted earlier, provides in part that:

SEC. 9. (a) Any public officer or private person committing any of the unlawful acts or omissions enumerated in
Sections 3, 4, 5 and 6 of this Act shall be punished with imprisonment for not less than six years and one month nor
more than fifteen years, perpetual disqualification from public office, and confiscation or forfeiture in favor of the
Government of any prohibited interest and unexplained wealth manifestly out of proportion to his salary and other
lawful income.

xxx

The fact that one of the elements of Section 3(g) of RA 3019 is "that the accused is a public officer" does not
necessarily preclude its application to private persons who, like petitioner Go, are being charged with conspiring with
public officers in the commission of the offense thereunder.

The case of Singian, Jr. v. Sandiganbayan17 is instructive. In the said case, Gregorio Singian, Jr., a private person
who was then Executive Vice-President of Integrated Shoe, Inc. (ISI), together with some officers of the Philippine
National Bank (PNB), was charged with violation of Section 3(e) and (g) of RA 3019 in connection with the loan
accommodations that the said bank extended to ISI which were characterized as behest loans.

A total of eighteen Informations were filed against Singian and his co-accused by the Office of the Ombudsman
before the Sandiganbayan corresponding to the nine loan accommodations granted to ISI. Each loan was subject of
two Informations alleging violations of both Section 3(e) and (g), respectively. In other words, nine Informations
charged Singian and his co-accused with violation of Section 3(e) of RA 3019 and the other nine charged them with
violation of paragraph (g) of the same provision.

Singian filed with the Sandiganbayan a motion for re-determination of existence of probable cause but the same
was dismissed. He then filed with the Court a petition for certiorari but it was likewise dismissed as the Court held
that the Ombudsman and the Sandiganbayan had not committed grave abuse of discretion when they respectively
found probable cause against Singian for violations of both paragraphs (e) and (g) of Section 3 of RA 3019.

Singian thus illustrates that private persons, like petitioner Go, when conspiring with public officers, may be indicted
and, if found guilty, held liable for violation of Section 3(g) of RA 3019. Another case, Domingo v.
Sandiganbayan,18 may likewise be applied to this case by analogy.

In the said case, Diosdado Garcia, proprietor of D.T. Garcia Construction Supply, together with Jaime Domingo,
then municipal mayor of San Manuel, Isabela, was charged with Section 3(h) of RA 3019 as it appeared that he was
used by Domingo as a dummy to cover up his business transaction with the municipality. Section 3(h) of the anti-
graft law reads:

SEC.3. Corrupt practices of public officers. – x x x

(h) Directly or indirectly having financial or pecuniary interest in any business, contract or transaction in connection
with which he intervenes or takes part in his official capacity, or in which he is prohibited by the Constitution or by
any law from having an interest.

The elements of this offense are: (1) that the accused is a public officer; (2) he has a direct or indirect financial or
pecuniary interest in any business, contract, or transaction; (3) he either: (a) intervenes or takes part in his official
capacity in connection with such interest, or (b) is prohibited from having such interest by the Constitution or by
law.19

Despite the first element mentioned above, the Court affirmed the conviction of Garcia, a private individual, as well
as that of Domingo, who was then a municipal mayor, for violation of Section 3(h) of RA 3019. In so holding, the
Court established that Domingo and Garcia acted in conspiracy with one another in the commission of the offense.
Domingo thus also serves to debunk petitioner Go’s theory that where an offense has as one of its elements that the
accused is a public officer, it necessarily excludes private persons from the scope of such offense.

The precept that could be drawn from Luciano, Singian and Domingo, and which is applicable to the present case, is
that private persons, when acting in conspiracy with public officers, may be indicted and, if found guilty, held liable
for the pertinent offenses under Section 3 of RA 3019, including (g) and (h) thereof. This is in consonance with the
avowed policy of the anti-graft law to repress certain acts of public officers and private persons alike constituting
graft or corrupt practices act or which may lead thereto.

Reliance by petitioner Go on Marcos v. Sandiganbayan20 is not quite appropriate. To recall, upon her motion for
reconsideration, the Court therein acquitted former First Lady Imelda Marcos of the charge of violation of Section
3(g) of RA 3019 in its Resolution dated October 6, 1998. Her acquittal was based on the finding that she signed the
subject lease agreement as a private person, not as a public officer. As such, the first element, i.e., that the accused
is a public officer was wanting.

Petitioner Go, however, failed to put the Court’s ruling in Marcos in its proper factual backdrop. The acquittal of the
former First Lady should be taken in the context of the Court’s Decision dated January 29, 1998, in Dans, Jr. v.
People,21 which the former First Lady sought to reconsider and, finding merit in her motion, gave rise to the Court’s
Resolution in Marcos. In Dans, the Information filed against the former First Lady and Jose P. Dans, Jr., then
Minister of Transportation and Communications, for violation of Section 3(g) of RA 3019, alleged that they were both
public officers and, conspiring with each other, entered into the subject lease agreement covering the LRTA property
with the PGHFI, a private entity, under terms and conditions manifestly and grossly disadvantageous to the
government.

The Court in its original decision affirmed the former First Lady’s conviction for violation of Section 3(g) of RA 3019
but acquitted her co-accused, Dans, Jr., of the said offense. As stated earlier, upon the former First Lady’s motion
for reconsideration, the Court reversed her conviction in its Resolution in Marcos.

It can be gleaned from the entire context of Marcos and Dans that the reversal of the former First Lady’s conviction
was based on the fact that it was later held that she signed the subject lease agreement as a private person, not a
public officer. However, this acquittal should also be taken in conjunction with the fact that the public officer with
whom she had supposedly conspired, her co-accused Dans, had earlier been acquitted. In other words, the element
that the accused is a public officer, was totally wanting in the former First Lady’s case because Dans, the public
officer with whom she had allegedly conspired in committing Section 3(g) of RA 3019, had already been acquitted.
Obviously, the former First Lady could not be convicted, on her own as a private person, of the said offense.

In contrast, petitioner Go cannot rightfully assert the total absence of the first element in his case because he is not
being charged alone but in conspiracy with Rivera, undoubtedly a public officer by virtue of his then being the DOTC
Secretary. The case against both of them is still pending before the Sandiganbayan. The facts attendant in petitioner
Go’s case are, therefore, not exactly on all fours as those of the former First Lady’s case as to warrant the
application of the Marcos ruling in his case.

Anent the allegation of conspiracy, it is posited by the dissenting opinion that the Information is infirm as far as
petitioner Go is concerned because it failed to mention with specificity his participation in the planning and
preparation of the alleged conspiracy. It opines that "aside from the sweeping allegation of conspiracy, the
Information failed to mention any act as to how petitioner had taken part in the planning and preparation of the
alleged conspiracy. Mere allegation of conspiracy in the Information does not necessarily mean that the criminal
acts recited therein also pertain to petitioner." While it concedes that the Sandiganbayan may exercise jurisdiction
over private individuals, it submits that it may do so only "upon Information alleging with specificity the precise
violations of the private individual." By way of conclusion, the dissenting opinion cites Sistoza v. Desierto22 where the
Court stated that a signature appearing on a document is not enough to sustain a finding of conspiracy among
officials and employees charged with defrauding the government.

These asseverations, however, are unpersuasive. It is well established that the presence or absence of the
elements of the crime is evidentiary in nature and is a matter of defense that may be passed upon after a full-blown
trial on the merits.23 In the same manner, the absence (or presence) of any conspiracy among the accused is
evidentiary in nature and is a matter of defense, the truth of which can be best passed upon after a full-blown trial on
the merits.24

Following these truisms, the specific acts of petitioner Go in the alleged conspiracy with Rivera in violating Section
3(g) of RA 3019 as well as the details on how petitioner Go had taken part in the planning and preparation of the
alleged conspiracy need not be set forth in the Information as these are evidentiary matters and, as such, are to be
shown and proved during the trial on the merits. Indeed, it bears stressing that "[t]o establish conspiracy, direct proof
of an agreement concerning the commission of a felony and the decision to commit it is not necessary. It may be
inferred from the acts of the accused before, during or after the commission of the crime which, when taken
together, would be enough to reveal a community of criminal design, as the proof of conspiracy is frequently made
by evidence of a chain of circumstances. Once established, all the conspirators are criminally liable as co-principals
regardless of the degree of participation of each of them, for in contemplation of the law the act of one is the act of
all."25

In this connection, for purposes of the Information, it is sufficient that the requirements of Section 8, Rule 110 of the
Rules of Court are complied with:

SEC. 8. Designation of the offense. – The complaint or information shall state the designation of the offense given
by the statute, aver the acts or omissions constituting the offense, and specify its qualifying and aggravating
circumstances. If there is no designation of the offense, reference shall be made to the section or subsection of the
statute punishing it.

An accused, like petitioner Go, may file a motion to quash the Information under Section 3(a) of Rule 117 on the
grounds that the facts charged do not constitute an offense. In such a case, the fundamental test in determining the
sufficiency of the material averments of an Information is whether or not the facts alleged therein, which are
hypothetically admitted, would establish the essential elements of the crime defined by law. Evidence aliunde or
matters extrinsic of the Information are not to be considered.26

As correctly outlined by the Office of the Ombudsman, the facts alleged in the Information, if admitted hypothetically,
establish all the elements of Section 3(g) of RA 3019 vis-à-vis petitioner Go:

ELEMENTS ALLEGATIONS
1a\^/phi1.net

1. The offender is a public officer [T]he accused

VICENTE C.
RIVERA, JR.,
Secretary of
Department of
Transportation and
Communications
(DOTC), committing
the offense in
relation to his office
and taking
advantage of the
same, in conspiracy
with accused
HENRY T. GO,
Chairman and
President of
Philippine
International Air
Terminals, Co., xxx"

2. He entered into a contract or transaction in behalf of the "[T]he accused

government VICENTE C.
RIVERA, JR., xxx in
conspiracy with
accused HENRY T.
GO xxx did then
and there, willfully &
unlawfully and
feloniously entered
into an Amended
and Restated
Concession
Agreement (ARCA),
after the project for
the construction of
the Ninoy Aquino
International Airport
International
Passenger Terminal
III (NAIA IPT III) was
awarded to
Paircargo
Consortium/PIATCO
xxx
3. The contract or transaction is grossly and manifestly "xxx which ARCA
disadvantageous to the government substantially
amended the draft
Concession
Agreement covering
the construction of
the NAIA IPT III
under Republic Act
6957, as amended
by Republic Act
7718 (BOT Law)
providing that the
government shall
 assume the
liabilities of PIATCO
in the event of the
latter’s default
specifically Article
IV, Section 4.04 (c)
in relation to Article
I, Section 1.06 of
the ARCA which
terms are more
beneficial to
PIATCO and in
violation of the BOT
Law and manifestly
grossly
disadvantageous to
the government of
the Republic of the
Philippines."27

Finally, in the assailed Resolution dated March 24, 2006, the Sandiganbayan ratiocinated thus:

The rule is that the determination of probable cause during the preliminary investigation is a function that belongs to
the public prosecutor, the Office of the Ombudsman in this case. Such official is vested with authority to determine
whether or not a criminal case must be filed in court and the concomitant function of determining as well the persons
to be prosecuted. Also, it must not be lost sight of that the correctness of the exercise of such function is a matter
that the trial court itself does not and may not be compelled to pass upon, consistent with the policy of non-
interference by the courts in the determination by the Ombudsman of the existence of probable cause.

Accordingly, upon the foregoing premises, we believe and so hold that any and all questions relating to the finding of
probable cause by the Office of the Ombudsman should be addressed to the said office itself, then to the Court of
Appeals and, ultimately, to the Supreme Court.

On the matter of the judicial determination of probable cause, we stand by our finding that the same exists in this
case, the said finding we arrived at upon a personal determination thereof which we did for the purpose of and
before the issuance of the warrant of arrest. While it may indeed be true that the documents mentioned by
1aw phi 1.nét

accused-movant as being absent in the records are missing, we nevertheless had for our perusal other documents
assiduously listed down by accused Rivera in his motion, including the information, which we found to constitute
sufficient basis for our determination of the existence of probable cause. It must be emphasized that such
determination is separate and distinct from that made by the Office of the Ombudsman and which we did
independently therefrom.28

The determination of probable cause during a preliminary investigation is a function of the government prosecutor,
which in this case is the Ombudsman. As a rule, courts do not interfere in the Ombudsman’s exercise of discretion
in determining probable cause, unless there are compelling reasons.29 Mindful of this salutary rule, the
Sandiganbayan nonetheless made its own determination on the basis of the records that were before it. It concluded
that there was sufficient evidence in the records for the finding of the existence of probable cause against petitioner
Go.

Grave abuse of discretion implies a capricious and whimsical exercise of judgment tantamount to lack or excess of
jurisdiction. The exercise of power must have been done in an arbitrary or a despotic manner by reason of passion
or personal hostility. It must have been so patent and gross as to amount to an evasion of positive duty or a virtual
refusal to perform the duty enjoined or to act at all in contemplation of law.30 Clearly, in the light of the foregoing
disquisition, grave abuse of discretion cannot be imputed on the Sandiganbayan when it held that there exists
probable cause against petitioner Go.
ACCORDINGLY, the petition is DISMISSED for lack of merit. The assailed Resolutions dated December 6, 2005
and March 24, 2006 of the Sandiganbayan in Criminal Case No. 28092 are AFFIRMED in toto.

SO ORDERED.

ROMEO J. CALLEJO, SR.

Associate Justice

WE CONCUR:

CONSUELO YNARES-SANTIAGO
Associate Justice

MA. ALICIA AUSTRIA-MARTINEZ MINITA V. CHICO-NAZARIO

Associate Justice Asscociate Justice

ANTONIO EDUARDO B. NACHURA

Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision had been reached in consultation before the case was assigned
to the writer of the opinion of the Court’s Division.

CONSUELO YNARES-SANTIAGO
Associate Justice
Chairperson

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution and the Division Chairperson’s Attestation, it is hereby
certified that the conclusions in the above decision were reached in consultation before the case was assigned to
the writer of the opinion of the Court’s Division.

REYNATO S. PUNO
Chief Justice

Footnotes

1 450 Phil. 744 (2003).

2 An Act Authorizing the Financing, Construction, Operation and Maintenance of Infrastructure Projects by
the Private Sector.

3 Supra, note 1, pp. 840-841.

4 The provision reads:

SEC. 3. Corrupt practices of public officers. – In addition to acts or omissions of public officers
already penalized by existing law, the following shall constitute corrupt practices of any public officer
and are hereby declared to be unlawful:
 xxx

(g) Entering, on behalf of the Government, into any contract or transaction manifestly and grossly
disadvantageous to the same, whether or not the public officer profited or will profit thereby.

5 Rollo, pp. 103-104.

6 Rollo, p. 63.

7 Id. at 17.

8Luciano v. Estrella, 145 Phil. 448 (1970); Ingco v. Sandiganbayan, 338 Phil. 1061 (1997); Dans, Jr. v.
People, 349 Phil. 434 (1998).

9 357 Phil. 762 (1998).

10 Petitioner Go cites, among others, the definition in Section 2 of RA 3019:

Sec. 2. Definition of Terms. – As used in this Act, the term –

(b) "Public Officer" includes elective and appointive officials an employees, permanent or temporary,
whether in the classified or unclassified or exempt service receiving compensation, even nominal,
from the government as defined in the subparagraph."

Article 203 of the Revised Penal Code was also cited:

Art. 203. Who are public officers. – For the purpose of applying the provisions of this and the
preceding titles of the book, any person who by direct provision of the law, popular election or
appointment by competent authority, shall take part in the performance of public functions in the
Government of the Philippine Islands, or shall perform in said Government or in any of its branches
public duties as an employee, agent or subordinate official, of any rank or class, shall be deemed to
be a public officer.

11 Quoting REYES, THE REVISED PENAL CODE: BOOK TWO (15th ed.), p. 451.

12 The provision reads:

SEC. 3. x x x

(e) Causing any undue injury to any party, including the Government, or giving any private party any
unwarranted benefits, advantage or preference in the discharge of his official, administrative or
judicial functions through manifest partiality, evident bad faith or gross inexcusable negligence. This
provision shall apply to officers and employees of offices or government corporations charged with
the grant of licenses or permits or other concessions.

13 The elements of the offense defined in Section 3(e) of RA 3019 are:

(1) That the accused are public officers or private persons charged in conspiracy with them;

(2) That the said public officers committed the prohibited acts during the performance of official
duties in relation to their public positions;

(3) That they caused undue injury to any party, whether the government or a private party;

(4) That such injury was caused by giving unwarranted benefits, preference or advantage to such
parties; and
 (5) That the public officers acted with manifest partiality, evident bad faith or gross inexcusable
negligence. (Citing, among others, Dela Chica v. Sandiganbayan, G.R. No. 144823, December 8,
2003, 417 SCRA 242).

14 Supra note 8.

15 Supra note 8.

16 Id. at 464-465.

17 G.R. Nos. 160577-94, December 16, 2005, 478 SCRA 348.

18 G.R. No. 149175, October 25, 2005, 474 SCRA 203.

19 Id. at 215.

20 Supra note 9.

21 Supra note 8.

22 437 Phil. 117 (2002).

23 Andres v. Cuevas, G.R. No. 150869, June 9, 2005, 460 SCRA 38.

24 Singian v. Sandiganbayan, supra note 17.

25 Domingo v. Sandiganbayan, supra note 18.

26 Cabrera v. Sandiganbayan, G.R. Nos. 162314-17, October 24, 2004, 441 SCRA 377.

27 Comment, p. 22; rollo, p. 369.

28 Rollo, pp. 67-68.

29 Villanueva v. Ople, G.R. No. 165125, November 18, 2005, 475 SCRA 539.

30 Id. at 551.

The Lawphil Project - Arellano Law Foundation

DISSENTING OPINION

YNARES-SANTIAGO, J.:

At the outset, it must be stated that the issue here is not whether Republic Act (R.A.) No. 3019 applies as well to
private persons. This issue has long been settled considering the avowed purpose of R.A. No. 3019 which is to
repress certain acts of public officers and private persons constituting graft or corrupt practices or which may lead
thereto. The real issue here is whether petitioner Go, who is a private individual, may be properly indicted under
Section 3(g).

I maintain that petitioner Henry T. Go cannot be validly charged with violation of Section 3(g) of R.A. No. 3019 which
provides:
SEC. 3. Corrupt practices of public officers. – In addition to acts or omissions of public officers already penalized by
existing law, the following shall constitute corrupt practices of any public officer and are hereby declared to be
unlawful:

xxxx

(g) Entering, on behalf of the Government, into any contract or transaction manifestly and grossly disadvantageous
to the same, whether or not the public officer profited or will profit thereby.

To be indicted of the offense under Section 3(g) of R.A. No. 3019, the following elements must be present:

1) that the accused is a public officer;

2) that he entered into a contract or transaction on behalf of the government; and

3) that such contract or transaction is grossly and manifestly disadvantageous to the government.1

As to the first element, petitioner is not a public officer within the purview of the law. It follows that he cannot enter
into contract or transaction on behalf of the government. In Sajul v. Sandiganbayan,2 only the public officers were
charged with violation of Section 3(g). The private individuals were not included in the indictment.

To reiterate, this is not to say that R.A. No. 3019 does not punish private individuals. However, it must be stressed
that Section 3 of R.A. No. 3019 refers only to corrupt practices of public officers whereas Section 4 of the same law
provides for the prohibition on private individuals. Under the last paragraph of Section 3 and Section 4, private
persons are liable together with public officers, for the following specific acts, to wit:

SEC. 3. Corrupt practices of public officers. – xxx

xxxx

The person giving the gift, present, share, percentage or benefit referred to in subparagraphs (b) and (c); or offering
or giving to the public officer the employment mentioned in subparagraph (d); or urging the divulging or untimely
release of the confidential information referred to in subparagraph (k) of this section shall, together with the
offending public officer, be punished under Section nine of this Act and shall be permanently or temporarily
disqualified, in the discretion of the Court, from transacting business in any form with the Government.

SEC. 4. Prohibition on private individuals. – (a) It shall be unlawful for any person having family or close personal
relation with any public official to capitalize or exploit or take advantage of such family or close personal relation by
directly or indirectly requesting or receiving any present, gift or material or pecuniary advantage from any other
person having some business, transaction, application, request or contract with the government, in which such
public official has to intervene. Family relation shall include the spouse or relatives by consanguinity or affinity in the
third civil degree. The word "close personal relation" shall include close personal relationship, social and fraternal
connections, and professional employment all giving rise to intimacy which assures free access to such public
officer.

(b) It shall be unlawful for any person knowingly to induce or cause any public official to commit any of the offenses
defined in Section 3 hereof.

The information in the instant case does not specify with particularity the violation or prohibited acts which may have
been committed by the petitioner under the abovementioned provisions. Petitioner, who is a private individual, is
only charged with having conspired with Rivera in entering into a contract which is manifestly and grossly
disadvantageous to the government. Aside from this sweeping allegation of conspiracy, the information failed to
mention any act as to how petitioner had taken part in the planning and preparation of the alleged conspiracy. Mere
allegation of conspiracy in the information does not necessarily mean that the criminal acts recited therein also
pertain to petitioner.
It is well-settled that penal statutes are strictly construed against the State and liberally for the accused, so much so
that the scope of a penal statute cannot be extended by good intention or by implication. Evidence of guilt must be
premised upon a more knowing, personal and deliberate participation of each individual who is charged with others
as part of a conspiracy.3 Although the accused are tried jointly, their guilt should remain individual and personal.

There is no question that the Sandiganbayan may exercise jurisdiction over private individuals, but it may only do so
upon information alleging with specificity the precise violations of that private individual. The liability of private
individuals should not be made to depend on whether the facts alleged in the information against the public officer
constituted a crime under Section 3(g) of R.A. No. 3019. Rather, it should be made to depend on whether the facts
alleged in the information support a prima facie finding that the private individual conspired with the public officer, or
that he knowingly induced the accused public official to commit the crime charged.

In the case of Luciano v. Estrella,4 the information precisely charged accused public officials and private persons
with violation of Sections 3(g) and 4(b). Thus, Jose Gutierrez and Franco A. Gutierrez, as private persons, were
charged with violation of "Section 3(g) and 4(b)," to wit:

On 18 January 1969, Maximo Estrella, Teotimo Gealogo, Justino Ventura, Pedro Ison, Ignacio Babasa, Bernardo
Nonato, Eduardo S. Francisco, Cirilo Delmo, Jose San Mateo, Lutgardo Ambrosio, Ciriaco Alano, Gualberto San
Pedro, Jose Gutierrez, Franco A. Gutierrez were charged with violation of Section 3-G and 4-B of Republic Act No.
3019 (Anti-Graft and Corrupt Practices Act) in an information reading as follows:

"That on or about July 26, 1967, and for sometime prior and subsequent thereto, in the Municipality of Makati,
Province of Rizal, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused,
Maximo Estrella, then the Municipal Mayor of Makati, Rizal; Teotimo Gealogo, Justino Ventura, Pedro Ison, Ignacio
Babasa, Bernardo Nonato, then Municipal Councilors of Makati, Rizal; Eduardo S. Francisco, then Municipal
Treasurer of Makati, Rizal; Cirilo Delmo, then Assistant Municipal Treasurer of Makati, Rizal; Lutgardo Ambrosio,
then Chief of Traffic Control Bureau, Makati Police Department; Ciriaco Alano, then confidential Private Secretary to
the Municipal Mayor, Gualberto San Pedro, then Provincial Auditor of the Province of Rizal; Jose Gutierrez and
Franco A. Gutierrez, owner and/or representatives of the JEP Enterprises, respectively, conspiring and
confederating together, did, then and there, willfully, unlawfully and feloniously, on behalf of the Municipal
Government of Makati, Rizal, enter into a contract or transaction with the JEP Enterprises, represented by Jose
Gutierrez and Franco A. Gutierrez, for the delivery and installation by the JEP Enterprises to the Municipal
Government of Makati, Rizal of fifty-nine (59) units of traffic deflectors valued at ONE THOUSAND FOUR
HUNDRED AND TWENTY-SIX PESOS AND FIFTY CENTAVOS (P1,426.60) each unit, that thirty-four (34) units
were delivered, installed and paid for by the Municipality of Makati in favor of the JEP Enterprises in the amount
FORTY-EIGHT THOUSAND EIGHT HUNDRED FORTY ONE PESOS (P48,841.00), less ten percent (10%)
retention, which contract or transaction is manifestly and grossly disadvantageous to the Municipal Government of
Makati, Rizal, to the damage and prejudice of the latter.

"That Jose Gutierrez and Franco [C.] Gutierrez, being the owner, manager and/or representatives of the JEP
Enterprises, being private persons, did knowingly induce or cause the above-mentioned public officials and officers
to enter into the aforementioned contract or transaction."5 (Underscoring supplied)

By analogy, reference may be made to Articles 210 (Direct Bribery) and 212 (Corruption of Public Officials) of the
Revised Penal Code. In Direct Bribery, the public officer agrees to perform an act either constituting or not
constituting a crime, in consideration of any offer, promise, gift or present received by such officer. Significantly, only
the public officer may be indicted under and be held liable for Direct Bribery under Article 210, while the person who
conspired with the public officer, who made the promise, offer, or gave the gifts or presents, may be indicted only
under Article 212 for Corruption of Public Officials, regardless of any allegation of conspiracy.

Indeed, it is axiomatic that all conspirators are criminally liable as co-principals. However, they may not be
necessarily charged with violation of the same offense. The public officer may be charged under one provision while
the private person is indicted under a different provision, although the offenses originate from the same set of acts.
Thus, the public officer may be accused of Direct Bribery while the private person may be charged with corruption of
public officials.

In the same manner, a public officer may be charged with violation of Section 3(g) of R.A. No. 3019 while the private
person is charged under Section 4(b) of the same law, based on the same set of conspiratory acts.
In the instant case, petitioner is charged with conspiring with Rivera when he signed the ARCA which is manifestly
disadvantageous to the government. However, the information is fatally defective and infirm as far as petitioner is
concerned.

Our ruling in Sistoza v. Desierto6 is pertinent, to wit:

It is also too sweeping to conclude the existence of conspiracy from the endorsements made by petitioner Sistoza to
the Department of Justice of the result of the bidding. Fairly evident is the fact that this action involved the very
functions he had to discharge in the performance of his official duties. Furthermore, contrary to the allegation that
petitioner misrepresented key facts to the Department of Justice, it is clear that his references to the price offered by
Elias General Merchandising and the rejection of the bid of Filcrafts Industries, Inc., were supported by documents
noted in and attached to his endorsements. Hence, there was no way by which the approving authority, i.e., the
Department of Justice, could have been misled by him. Clearly, to prosecute him for violation of Sec. 3, par. (e), RA
3019, on the basis of his endorsements would be the same as pegging his criminal liability on a mere signature
appearing on the document. In Sabiniano v. Court of Appeals we held that a signature on a voucher, check or
warrant, even if required by law to be affixed thereon, is not enough to sustain a finding of conspiracy among public
officials and employees charged with defraudation. We further ruled –

x x x Proof, not mere conjectures or assumptions, should be proffered to indicate that the accused had taken part in,
to use this Court's words in Arias v. Sandiganbayan, the "planning, preparation and perpetration of the alleged
conspiracy to defraud the government" for, otherwise, any "careless use of the conspiracy theory (can) sweep into
jail even innocent persons who may have (only) been made unwitting tools by the criminal minds" really responsible
for that irregularity x x x.

There is no dispute that R.A. No. 3019 was enacted in line with the government’s policy to repress certain acts of
public officers as well as private persons. What I am saying, however, is that petitioner Go may not be validly
charged under Sec. 3(g) alone because it covers only the public officers.

I disagree with the ponencia in holding that petitioner’s reliance on Marcos v. Sandiganbayan7 was misplaced. In
that case, former First Lady Imelda R. Marcos and Jose P. Dans, Jr. were charged with violation of Section 3(g) of
R.A. No. 3019. The Information alleged:

That on or about June 8, 1984, and for sometime prior or subsequent thereto, in Makati, Metro Manila, Philippines,
and within the jurisdiction of this Honorable Court, the accused IMELDA R. MARCOS and JOSE P. DANS,
JR., public officers, being then Chairman and Vice-Chairman, respectively, of the Light Rail Transit Authority
(LRTA), a government corporate entity created under Executive Order No. 603 of the former President Ferdinand
Marcos, while in the performance of their official functions, taking advantage of their positions and committing the
crime in relation to their offices, did then and there willfully, unlawfully and criminally conspiring with one another,
enter on behalf of the aforesaid government corporation into a Lease Agreement covering LRTA property located in
Pasay City, with the Philippine General Hospital Foundation, Inc. (PGHFI), a private enterprise, under terms and
conditions manifestly and grossly disadvantageous to the government. (Emphasis supplied)

After trial, the Sandiganbayan convicted Marcos and Dans, Jr. of the offense charged. On appeal, this Court in its
Decision dated June 29, 1998, affirmed the conviction of Marcos but acquitted Dans, Jr. Hence, Marcos filed a
motion for reconsideration raising the issue of whether all the elements of Section 3(g) have been duly
substantiated. In acquitting Marcos, the Court noted that the Information specifically charged Marcos of violation of
Section 3(g) because she allegedly signed the subject Lease Agreement as a public officer in her capacity as Vice-
Chairman of the LRTA. However, perusal of the subject Lease Agreement showed that Marcos signed in her
capacity as Chairman of Philippine General Hospital Foundation, Inc. (PGHFI), a private charitable institution, and
not as a public officer. Thus, the first element of Section 3(g) is wanting. The Court held that:

The pivot of inquiry here is whether all the elements of the offense charged have been duly substantiated. As
regards the first element, did petitioner Imelda R. Marcos enter into the Lease Agreement marked Exhibit "B" as a
public officer? As clearly stated on the face of the subject contract under scrutiny, petitioner signed the same in her
capacity as Chairman of PGHFI and not as Human Settlement Minister nor as ex-officio Chairman of LRTA. It was
Jose P. Dans, Jr. who signed said Contract, as ex-officio Vice-Chairman of LRTA. Although petitioner was the ex-
officio Chairman of LRTA, at the time, there is no evidence to show that she was present when the Board of
Directors of LRTA authorized and approved the Lease Agreement sued upon.
In light of the foregoing antecedent facts and circumstances, the irresistible conclusion is that petitioner did not sign
subject Lease Agreement as a public officer, within the contemplation of RA 3019 and, therefore, the first element of
the offense charged is wanting.

No less than the Constitution ordains that the accused must be properly and sufficiently informed of the nature of the
accusation filed against him. In the instant case, Go should be charged under Section 4(b), in relation to Sec. 3(g) of
R.A. No. 3019, as it properly pertains to private individuals, to wit:

Section 4. x x x

(b) It shall be unlawful for any person knowingly to induce or cause any public official to commit any of the
offenses defined in Section 3 hereof. (Emphasis supplied)

An accused’s right to be informed of the nature and cause of the charges against him is constitutionally enshrined,
for an accused cannot be convicted of an offense, unless it is clearly charged in the complaint or information. To
reiterate, the Information lumping the public official, Former DOTC Secretary Vicente Rivera, and the private
individual, petitioner Go, is legally infirm as Section 3(g) can only be violated by a public officer. Any private
individual accused to have conspired with a public officer in violating Section 3(g), must be charged under the
proper provision of the law. The acts for which private persons can be charged together with the public officials are
enumerated in the last paragraph of Section 3 and Section 4, paragraphs (a) and (b) of R.A. No. 3019. It is
reiterated that for the Information against Go to be sufficient in form and substance, he should be charged with
specificity for violation of Section 4(b) in relation to Section 3(g).

Indeed, there is a need to ferret out and expel corrupt public officers8 and to punish the private individuals who abet
their illegal activities. However, the remedy is not to indict and jail every person who happens to be a signatory in a
contract9 as in the instant case, which later on is proved to be manifestly disadvantageous to the government.

ACCORDINGLY, I vote that the petition be GRANTED and the Resolutions dated December 6, 2005 and March 24,
2006 of the Sandiganbayan in Criminal Case No. 28092 be REVERSED and SET ASIDE.

CONSUELO YNARES-SANTIAGO
Associate Justice

Footnotes

1 Singian, Jr. v. Sandiganbayan, G.R. Nos. 160577-94, December 16, 2005, 478 SCRA 348, 359.

2 G.R. No. 135294, November 20, 2000, 345 SCRA 248.

3 Sistoza v. Desierto, 437 Phil. 117, 122.

4 G.R. No. L-31622, August 31, 1970, 34 SCRA 769.

5 Id. at 771-772.

6 Supra note 3 136.

7 357 Phil. 762 (1998).

8 Sistoza v. Desierto, supra note 3 at 120.

9 Id.
11. G.R. Nos. 161784-86. April 26, 2005

DINAH C. BARRIGA, Petitioners,

vs.
THE HONORABLE SANDIGANBAYAN (4TH DIVISION) and THE PEOPLE OF THE PHILIPPINES, Respondents.

DECISION

CALLEJO, SR., J.:

This is a petition for certiorari under Rule 65 of the Rules of Court for the nullification of the Resolution1 of the
Sandiganbayan in Criminal Case Nos. 27435 to 27437 denying the motion to quash the Informations filed by one of
the accused, Dinah C. Barriga, and the Resolution denying her motion for reconsideration thereof.

The Antecedents

On April 3, 2003, the Office of the Ombudsman filed a motion with the Sandiganbayan for the admission of the three
Amended Informations appended thereto. The first Amended Information docketed as Criminal Case No. 27435,
charged petitioner Dinah C. Barriga and Virginio E. Villamor, the Municipal Accountant and the Municipal Mayor,
respectively, of Carmen, Cebu, with malversation of funds. The accusatory portion reads:

That in or about January 1996 or sometime prior or subsequent thereto, in the Municipality of Carmen, Province of
Cebu, Philippines and within the jurisdiction of this Honorable Court, above-named accused VIRGINIO E.
VILLAMOR and DINAH C. BARRIGA, both public officers, being then the Municipal Mayor and Municipal
Accountant, respectively, of the Municipality of Carmen, Cebu, and as such, had in their possession and custody
public funds amounting to TWENTY- THREE THOUSAND FORTY-SEVEN AND 20/100 PESOS (₱23,047.20),
Philippine Currency, intended for the payment of Five (5) rolls of Polyethylene pipes to be used in the Corte-
Cantumog Water System Project of the Municipality of Carmen, Cebu, for which they are accountable by reason of
the duties of their office, in such capacity and committing the offense in relation to office, conniving and
confederating together and mutually helping each other, did then and there willfully, unlawfully and feloniously
misappropriate, take, embezzle and convert into their own personal use and benefit said amount of ₱23,047.20, and
despite demands made upon them to account for said amount, they have failed to do so, to the damage and
prejudice of the government.

CONTRARY TO LAW.2

The inculpatory portion of the second Amended Information, docketed as Criminal Case No. 27436, charging the
said accused with illegal use of public funds, reads:

That in or about the month of November 1995, or sometime prior or subsequent thereto, in the Municipality of
Carmen, Province of Cebu, Philippines, and within the jurisdiction of the Honorable Court, above-named accused
VIRGINIO E. VILLAMOR and DINAH C. BARRIGA, both public officers, being then the Municipal Mayor and
Municipal Accountant, respectively, of the Municipality of Carmen, Cebu, and as such, had in their possession and
control public funds in the amount of ONE THOUSAND THREE HUNDRED FIVE PESOS (₱1,305.00) Philippine
Currency, representing a portion of the Central Visayas Water and Sanitation Project Trust Fund (CVWSP Fund)
intended and appropriated for the projects classified under Level I and III particularly the construction of Deep Well
and Spring Box for Level I projects and construction of water works system for Level III projects of specified
barangay beneficiaries/recipients, and for which fund accused are accountable by reason of the duties of their office,
in such capacity and committing the offense in relation to office, conniving and confederating together and mutually
helping each other, did then and there, willfully unlawfully and feloniously disburse and use said amount of
₱1,305.00 for the Spring Box of Barangay Natimao-an, Carmen, Cebu, a barangay which was not included as a
recipient of CVWSP Trust Fund, thus, accused used said public fund to a public purpose different from which it was
intended or appropriated, to the damage and prejudice of the government, particularly the barangays which were
CVWSP Trust Fund beneficiaries.

CONTRARY TO LAW.3
The accusatory portion of the third Amended Information, docketed as Criminal Case No. 27437, charged the same
accused with illegal use of public funds, as follows:

That in or about the month of January 1997, or sometime prior or subsequent thereto, in the Municipality of Carmen,
Province of Cebu, Philippines, and within the jurisdiction of this Honorable Court, above-named accused Virginio E.
Villamor and Dinah C. Barriga, both public officers, being then the Municipal Mayor and Municipal Accountant,
respectively, of the Municipality of Carmen, Cebu, and as such, had in their possession and control public funds in
the amount of TWO HUNDRED SIXTY-SEVEN THOUSAND FIVE HUNDRED THIRTY-SEVEN and 96/100
(₱267,537.96) PESOS, representing a portion of the Central Visayas Water and Sanitation Project Trust Fund
(CVWSP Fund), intended and appropriated for the projects classified under Level I and Level III, particularly the
construction of Spring Box and Deep Well for Level I projects and construction of water works system for Level III
projects of specified barangay beneficiaries/ recipients, and for which fund accused are accountable by reason for
the duties of their office, in such capacity and committing the offense in relation to office, conniving and
confederating together and mutually helping each other, did then and there willfully, unlawfully and feloniously
disburse and use said amount of ₱267,537.96 for the construction and expansion of Barangay Cantucong Water
System, a project falling under Level II of CVWSP, thus, accused used said public funds to a public purpose
different from which it was intended and appropriated, to the damage and prejudice of the government, particularly
the barangay beneficiaries of Levels I and III of CVWSP.

CONTRARY TO LAW.4

The Sandiganbayan granted the motion and admitted the Amended Informations. The petitioner filed a Motion to
Quash the said Amended Informations on the ground that under Section 4 of Republic Act No. 8294, the
Sandiganbayan has no jurisdiction over the crimes charged. She averred that the Amended Informations failed to
allege and show the intimate relation between the crimes charged and her official duties as municipal accountant,
which are conditions sine qua non for the graft court to acquire jurisdiction over the said offense. She averred that
the prosecution and the Commission on Audit admitted, and no less than this Court held in Tan v.
Sandiganbayan,5 that a municipal accountant is not an accountable officer. She alleged that the felonies of
malversation and illegal use of public funds, for which she is charged, are not included in Chapter 11, Section 2,
Title VII, Book II, of the Revised Penal Code; hence, the Sandiganbayan has no jurisdiction over the said crimes.
Moreover, her position as municipal accountant is classified as Salary Grade (SG) 24.

The petitioner also posited that although the Sandiganbayan has jurisdiction over offenses committed by public
officials and employees in relation to their office, the mere allegation in the Amended Informations that she
committed the offenses charged in relation to her office is not sufficient as the phrase is merely a conclusion of law;
controlling are the specific factual allegations in the Informations that would indicate the close intimacy between the
discharge of her official duties and the commission of the offenses charged. To bolster her stance, she cited the
rulings of this Court in People v. Montejo,6 Soller v. Sandiganbayan,7 and Lacson v. Executive Secretary.8 She further
contended that although the Amended Informations alleged that she conspired with her co-accused to commit the
crimes charged, they failed to allege and show her exact participation in the conspiracy and how she committed the
crimes charged. She also pointed out that the funds subject of the said Amended Informations were not under her
control or administration.

On October 9, 2003, the Sandiganbayan issued a Resolution9 denying the motion of the petitioner. The motion for
reconsideration thereof was, likewise, denied, with the graft court holding that the applicable ruling of this Court
was Montilla v. Hilario,10 i.e., that an offense is committed in relation to public office when there is a direct, not merely
accidental, relation between the crime charged and the office of the accused such that, in a legal sense, the offense
would not exist without the office; in other words, the office must be a constituent element of the crime as defined in
the statute. The graft court further held that the offices of the municipal mayor and the municipal accountant were
constituent elements of the felonies of malversation and illegal use of public funds. The graft court emphasized that
the rulings of this Court in People v. Montejo11 and Lacson v. Executive Secretary12 apply only where the office held
by the accused is not a constituent element of the crimes charged. In such cases, the Information must contain
specific factual allegations showing that the commission of the crimes charged is intimately connected with or
related to the performance of the accused public officer’s public functions. In fine, the graft court opined, the basic
rule is that enunciated by this Court in Montilla v. Hilario, and the ruling of this Court in People v. Montejo is the
exception.
The petitioner thus filed the instant petition for certiorari under Rule 65 of the Rules of Court, seeking to nullify the
aforementioned Resolutions of the Sandiganbayan. The petitioner claims that the graft court committed grave abuse
of its discretion amounting to excess or lack of jurisdiction in issuing the same.

In its comment on the petition, the Office of the Special Prosecutor averred that the remedy of filing a petition
for certiorari, from a denial of a motion to quash amended information, is improper. It posits that any error committed
by the Sandiganbayan in denying the petitioner’s motion to quash is merely an error of judgment and not of
jurisdiction. It asserts that as ruled by the Sandiganbayan, what applies is the ruling of this Court in Montilla v.
Hilario and not People v. Montejo. Furthermore, the crimes of malversation and illegal use of public funds are
classified as crimes committed by public officers in relation to their office, which by their nature fall within the
jurisdiction of the Sandiganbayan. It insists that there is no more need for the Amended Informations to specifically
allege intimacy between the crimes charged and the office of the accused since the said crimes can only be
committed by public officers. It further claims that the petitioner has been charged of malversation and illegal use of
public funds in conspiracy with Municipal Mayor Virginio E. Villamor, who occupies a position classified as SG 27;
and even if the petitioner’s position as municipal accountant is only classified as SG 24, under Section 4 of Rep. Act
No. 8249, the Sandiganbayan still has jurisdiction over the said crimes. The Office of the Special Prosecutor further
avers that the petitioner’s claim, that she is not an accountable officer, is a matter of defense.

The Ruling of the Court

The petition has no merit.

We agree with the ruling of the Sandiganbayan that based on the allegations of the Amended Informations and Rep.
Act No. 8249, it has original jurisdiction over the crimes of malversation and illegal use of public funds charged in the
Amended Informations subject of this petition.

Rep. Act No. 8249,13 which amended Section 4 of Presidential Decree No. 1606, provides, inter alia, that the
Sandiganbayan has original jurisdiction over crimes and felonies committed by public officers and employees, at
least one of whom belongs to any of the five categories thereunder enumerated at the time of the commission of
such crimes.14 There are two classes of public office-related crimes under subparagraph (b) of Section 4 of Rep. Act
No. 8249: first, those crimes or felonies in which the public office is a constituent element as defined by statute and
the relation between the crime and the offense is such that, in a legal sense, the offense committed cannot exist
without the office;15 second, such offenses or felonies which are intimately connected with the public office and are
perpetrated by the public officer or employee while in the performance of his official functions, through improper or
irregular conduct.16

The Sandiganbayan has original jurisdiction over criminal cases involving crimes and felonies under the first
classification. Considering that the public office of the accused is by statute a constituent element of the crime
charged, there is no need for the Prosecutor to state in the Information specific factual allegations of the intimacy
between the office and the crime charged, or that the accused committed the crime in the performance of his duties.
However, the Sandiganbayan likewise has original jurisdiction over criminal cases involving crimes or felonies
committed by the public officers and employees enumerated in Section (a) (1) to (5) under the second classification
if the Information contains specific factual allegations showing the intimate connection between the offense charged
and the public office of the accused, and the discharge of his official duties or functions - whether improper or
irregular.17 The requirement is not complied with if the Information merely alleges that the accused committed the
crime charged in relation to his office because such allegation is merely a conclusion of law.18

Two of the felonies that belong to the first classification are malversation defined and penalized by Article 217 of the
Revised Penal Code, and the illegal use of public funds or property defined and penalized by Article 220 of the
same Code. The public office of the accused is a constituent element in both felonies.

For the accused to be guilty of malversation, the prosecution must prove the following essential elements:

(a) The offender is a public officer;

(b) He has the custody or control of funds or property by reason of the duties of his office;
(c) The funds or property involved are public funds or property for which he is accountable; and

(d) He has appropriated, taken or misappropriated, or has consented to, or through abandonment or negligence,
permitted the taking by another person of, such funds or property.19

For the accused to be guilty of illegal use of public funds or property, the prosecution is burdened to prove the
following elements:

(1) The offenders are accountable officers in both crimes.

(2) The offender in illegal use of public funds or property does not derive any personal gain or profit; in malversation,
the offender in certain cases profits from the proceeds of the crime.

(3) In illegal use, the public fund or property is applied to another public use; in malversation, the public fund or
property is applied to the personal use and benefit of the offender or of another person.20

We agree with the ruling of the Sandiganbayan that the public office of the accused Municipal Mayor Virginio E.
Villamor is a constituent element of malversation and illegal use of public funds or property. Accused mayor’s
position is classified as SG 27. Since the Amended Informations alleged that the petitioner conspired with her co-
accused, the municipal mayor, in committing the said felonies, the fact that her position as municipal accountant is
classified as SG 24 and as such is not an accountable officer is of no moment; the Sandiganbayan still has
exclusive original jurisdiction over the cases lodged against her. It must be stressed that a public officer who is not in
charge of public funds or property by virtue of her official position, or even a private individual, may be liable for
malversation or illegal use of public funds or property if such public officer or private individual conspires with an
accountable public officer to commit malversation or illegal use of public funds or property.

In United States v. Ponte,21 the Court, citing Viada, had the occasion to state:

Shall the person who participates or intervenes as co-perpetrator, accomplice or abettor in the crime of malversation
of public funds, committed by a public officer, have the penalties of this article also imposed upon him? In opposition
to the opinion maintained by some jurists and commentators (among others the learned Pacheco) we can only
answer the question affirmatively, for the same reasons (mutatis mutandis) we have already advanced in Question I
of the commentary on article 314. French jurisprudence has also settled the question in the same way on the ground
that the person guilty of the crime necessarily aids the other culprit in the acts which constitute the crime." (Vol. 2,
4th edition, p. 653)

The reasoning by which Groizard and Viada support their views as to the correct interpretation of the provisions of
the Penal Code touching malversation of public funds by a public official, is equally applicable in our opinion, to the
provisions of Act No. 1740 defining and penalizing that crime, and we have heretofore, in the case of the United
States vs. Dowdell (11 Phil. Rep., 4), imposed the penalty prescribed by this section of the code upon a public
official who took part with another in the malversation of public funds, although it was not alleged, and in fact clearly
appeared, that those funds were not in his hands by virtue of his office, though it did appear that they were in the
hands of his co-principal by virtue of the public office held by him.22

The Court has also ruled that one who conspires with the provincial treasurer in committing six counts of
malversation is also a co-principal in committing those offenses, and that a private person conspiring with an
accountable public officer in committing malversation is also guilty of malversation.23

We reiterate that the classification of the petitioner’s position as SG 24 is of no moment. The determinative fact is
that the position of her co-accused, the municipal mayor, is classified as SG 27, and under the last paragraph of
Section 2 of Rep. Act No. 7975, if the position of one of the principal accused is classified as SG 27, the
Sandiganbayan has original and exclusive jurisdiction over the offense.

We agree with the petitioner’s contention that under Section 474 of the Local Government Code, she is not obliged
to receive public money or property, nor is she obligated to account for the same; hence, she is not an accountable
officer within the context of Article 217 of the Revised Penal Code. Indeed, under the said article, an accountable
public officer is one who has actual control of public funds or property by reason of the duties of his office. Even
then, it cannot thereby be necessarily concluded that a municipal accountant can never be convicted for
malversation under the Revised Penal Code. The name or relative importance of the office or employment is not the
controlling factor.24 The nature of the duties of the public officer or employee, the fact that as part of his duties he
received public money for which he is bound to account and failed to account for it, is the factor which determines
whether or not malversation is committed by the accused public officer or employee. Hence, a mere clerk in the
provincial or municipal government may be held guilty of malversation if he or she is entrusted with public funds and
misappropriates the same.

IN LIGHT OF ALL THE FOREGOING, the petition is DENIED for lack of merit. Costs against the petitioner.

SO ORDERED.

Puno, (Chairman), Austria-Martinez, Tinga, and Chico-Nazario, JJ., concur.

Footnotes

1
Penned by Associate Justice Gregory S. Ong, with Associate Justices Rodolfo G. Palattao (retired) and
Norberto Y. Geraldez, concurring.

2
Rollo, pp. 48-49.

3
Id. at 51-52.

4
Id. at 54-55.

5
G.R. Nos. 88475-96, 5 August 1993, 225 SCRA 156.

6
108 Phil. 613 (1960).

7
G.R. Nos. 144261-62, 9 May 2001, 357 SCRA 677.

8
G.R. No. 128096, 20 January 1999, 301 SCRA 298.

9
Rollo, pp. 33-40.

10
90 Phil. 49 (1951).

11
Supra.

12
Supra.

13
Jurisdiction.— The Sandiganbayan shall exercise exclusive original jurisdiction in all cases involving:

a. Violations of Republic Act No. 3019, as amended, otherwise known as the Anti-Graft and Corrupt
Practices Act, Republic Act No. 1379, and Chapter II, Section 2, Title VII, Book II of the Revised Penal
Code, where one or more of the accused are officials occupying the following positions in the government,
whether in a permanent, acting or interim capacity, at the time of the commission of the offense:

(1) Official of the executive branch occupying the positions of regional director and higher, otherwise
classified as Grade "27" and higher, of the Compensation and Position Classification Act of 1989 (Republic
Act No. 6758), specifically including:
(a) Provincial governors, vice-governors, members of the sangguniang panlalawigan, and provincial
treasurers, assessors, engineers, and other provincial department heads;

(b) City mayors, vice-mayors, members of the sangguniang panlungsod, city treasurers, assessors,
engineers and other city department heads;

(c) Officials of the diplomatic service occupying the position of consul and higher;

(d) Philippine army and air force colonels, naval captains, and all officers of higher rank;

(e) Officers of the Philippine National Police while occupying the position of provincial director and those
holding the rank of senior superintendent or higher;

(f) City and provincial prosecutors and their assistants, and official and prosecutors in the Office of the
Ombudsman and special prosecutor; and

(g) Presidents, directors or trustees, or managers of government-owned or controlled corporations, state

universities or educational institutions or foundations.

(2) Members of Congress and officials thereof classified as Grade "2" and up under the Compensation and
Position Classification Act of 1989;

(3) Members of the judiciary without prejudice to the provisions of the Constitution;

(4) Chairmen and members of Constitutional Commissions, without prejudice to the provisions of the
Constitution; and

(5) All other national and local officials classified as Grade "27" and higher under the Compensation and
Position Classification Act of 1989.

b. Other offenses or felonies whether simple or complexed with other crimes committed by the public
officials and employees mentioned in subsection (a) of this section in relation to their office.

c. Civil and criminal cases filed pursuant to and in connection with Executive Order Nos. 1, 2, 14 and 14-A,
issued in 1986.

In cases where none of the accused are occupying positions corresponding to Salary Grade "27" or higher,
as prescribed in the said Republic Act No. 6758, or military and PNP officers mentioned above, exclusive
original jurisdiction thereof shall be vested in the proper regional trial court, metropolitan trial court, municipal
trial court, and municipal circuit trial court, as the case may be, pursuant to their respective jurisdictions as
provided in Batas Pambansa Blg. 129, as amended.

14
Inding v. Sandiganbayan, G.R. No. 143047, 14 July 2004, 434 SCRA 388.

15
Montilla v. Hilario, supra.

16
People v. Montejo, supra.

17
Ibid.

18
Lacson v. Executive Secretary, supra.

19
Sarigumba v. Sandiganbayan, G.R. No. 154239-41, 16 February 2005.
20
Reyes, The Revised Penal Code, Book II, 13th ed., p. 378.

21
20 Phil. 379 (1911).

22
Id. at 384-385.

23
People v. Sendaydiego, G.R. Nos. L-33252 to L-33254, 20 January 1978; 81 SCRA 120.

24
Quiñon v. People, G.R. No. 136462, 19 September 2002; 389 SCRA 412.
 12. G.R. No. 145229 April 20, 2006

ROMEO L. DAVALOS, SR., Petitioner,

vs.
PEOPLE OF THE PHILIPPINES Respondent.

DECISION

GARCIA, J.:

Before us is this petition for review on certiorari seeking the reversal of the Decision1 of the
Sandiganbayan2 promulgated on October 6, 2000 in Criminal Case No. 18003, convicting petitioner Romeo L.
Davalos, Sr., of the crime of malversation of public funds and sentencing him to suffer an indeterminate penalty of
ten (10) 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, to suffer perpetual special disqualification, and to pay a fine of P18,000.00
plus costs.

On September 7, 1992, Special Prosecution Officer Reynaldo L. Mendoza filed with the Sandiganbayan an
Information3 charging petitioner with malversation of public funds, allegedly committed, as follows:

That on or about January 14, 1988, or immediately prior and subsequent thereto, in Boac, Marinduque, and within
the jurisdiction of this Honorable Court, accused being then the Supply Officer of Boac, Marinduque, hence
accountable for public funds and property collected and received by reason of his official position, with grave abuse
of confidence, did then and there, willfully and unlawfully take, misappropriate and embezzle from said funds the
total amount of EIGHTEEN THOUSAND PESOS (P18,000.00), to the damage and prejudice of the Government.

Contrary to law.

Arraigned on January 25, 1993, petitioner, assisted by counsel, entered a plea of "Not Guilty"4 and waived the pre-
trial. Thereafter, trial ensued.

Culled from the records are the following pertinent facts:

On January 14, 1988, petitioner Davalos, as supply officer of the Office of the Provincial Engineer of Marinduque,
received from the provincial cashier a cash advance of P18,000.00 covered by Philippine National Bank (PNB)
Check No. SN-189833-N5 for the procurement of working tools for a certain "NALGO" project. Petitioner’s receipt of
the amount is evidenced by his signature appearing in Disbursement Voucher No. 103-880-08.6

On May 5, 1988, petitioner received a demand letter7 from then Provincial Treasurer Timoteo Magalang giving him
until May 16, 1988 to submit a liquidation of the aforementioned P18,000.00 cash advance. This was followed by
another letter8 received by petitioner on May 26, 1988, giving him this time up to May 31, 1999 to settle his account.
But as in the first instance, the second demand went unheeded.

In a letter dated August 16, 1990, the new Provincial Treasurer, Norma Cabungal, informed the Provincial
Prosecutor of Marinduque of the Commission on Audit's findings on the examination of the cash accounts of the
province wherein petitioner was found to have an unsettled cash advance in the amount of P18,000.00.

During the trial, petitioner testified being, at the time material to the case, the supply officer of the Office of the
Provincial Engineer of Marinduque. His functions, according to him, include taking care of office properties and
purchasing the necessary materials and supplies as needed by their office. As such, he was also referred to as the
procurement officer.

Petitioner admitted receiving the P18,000.00 cash advance intended to purchase working tools for the "NALGO"
project. He, however, denied allegations that he misappropriated the said amount.

He testified, too, that, albeit the purchase order (PO) for the said tools were already approved by the provincial
treasurer and the provincial auditor, the new administration decided to scrap the proposed transaction. According to
petitioner, following the assumption to office of Governor Luisito Reyes, his office files containing the said PO and
the requisition paper were taken and his services terminated per Governor Reyes' Memorandum No. 88-639 dated
November 23, 1988. Said memorandum also stated that "should you apply for the commutation/payment of your
unused leave/vacation and sick/credits, the same may be approved provided it is first applied/charged to your
unliquidated cash advance of P18,000.00." Pressing the point, petitioner stated that he then applied for his terminal
leave and other benefits through the following summary of vouchers which he personally prepared, but were then
disapproved:

1) Disbursement Voucher (DV) dated May 13, 1991, for the commutation payment of the 145 vacation
leaves of absence with pay from May 1, 1988 to November 2, 1988 in the amount of P7, 022.87;10

2) DV dated May 13, 1991, for the payment of accrued terminal leave from November 23, 1988 to January
10, 1990 in the amount of P14, 055.82;11

3) DV dated May 13, 1991, for the payment of Cash Gift and Year End Benefit in the amount
of P2,043.00;12 and

4) DV dated May 13, 1991, for the payment of Cost of Living Allowance from June 1, 1988 to November 22,
1988 in the amount of P1,146.67.13

Petitioner then went on to declare that Gov. Reyes was out to harass him, hence the disapproval of the above-
mentioned vouchers. Despite his belief that he was then no longer obligated to liquidate his P18,000.00 cash
advance, petitioner nonetheless settled his account, as evidenced by OR No. 198701814 dated January 27, 1995. To
prove his point, petitioner presented an undated letter of the provincial accountant addressed to the Office of the
Sangguniang Panlalawigan stating, among other things, that he had already settled his cash advance
of P18,000.0015

When confronted with Governor Reyes' Memorandum regarding his summary dismissal from the service for
abandoning his post for four (4) months since July 15, 1988, and for other acts of misconduct and other offenses,
petitioner merely denied all those charges. As to the charge of abandonment, petitioner argued that he was entitled
to vacation leave and that he had filed an application for commutation of his leave from May 1, 1988 up to
November 22, 1988. He also brushed aside the charge of malversation and declared that he had already been
relieved of his accountabilities by the Commission on Audit. He, however, admitted receiving from the provincial
treasurer the two demand letters earlier adverted to dated May 5, 1988 and May 26, 1988 requiring him to submit
his liquidation of the P18,000.00 cash advance on the dates respectively indicated therein.

On re-direct examination, petitioner denied abandoning his office, having, according to him, filed his application for
leave of absence covering the period from May 1, 1988 up to November 22, 1988.

On re-cross examination, petitioner testified being sick during the entire period covered by his leave application. As
regards the purchase of the working tools for which he received the P18,000.00 cash advance, petitioner declared
that he actually made a down payment of P11,000.00. He did not, he added, return the balance of P7,000.00 at the
time he received his termination paper because he relied on Governor Reyes' Memorandum purportedly allowing
him to offset the P18,000.00 from the terminal benefits due him. He later stated in his testimony, however, that the
reason he did not give back the balance of P7,000.00 was because he wanted to return the whole amount
of P18,000.00.

Petitioner likewise testified that the receipt evidencing the down payment of P11,000.00 for the tools bought was
lost; that he went back to the seller in Manila to secure a copy of the lost receipt and brought the tools with him in
order to return the same, but the irked seller wanted him to maintain the transaction. As a result, he was able to
recover only half of the down payment or P5,500.00. The other P5,500.00 was retained by the seller to answer for
the damages suffered by the latter. Consequently, he has in his possession P12,500.00 (the remaining original
balance of P7,000.00 plus the recovered amount of P5,500.00).

On June 30, 2000, the Sandiganbayan rendered its decision, finding petitioner guilty beyond reasonable doubt of
the crime of malversation of public funds and sentencing him accordingly. Dispositively, the decision reads:
WHEREFORE, judgment is hereby rendered finding accused ROMEO L. DAVALOS, SR. GUILTY of the crime of
malversation of public funds defined and penalized under Article 217 of the Revised Penal Code and, taking into
account the existence of a mitigating circumstance, sentencing the said accused to: (a) suffer an indeterminate
sentence of imprisonment of ten (10) 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; (b) suffer all the appropriate accessory
penalties consequent thereto, including perpetual special disqualification; (c) pay a fine of Eighteen Thousand
(P18,000) ; and (d) pay the costs.

Hence, this petition.

The crime of malversation of public funds is defined and penalized under Article 217 of the Revised Penal Code, viz:

ART. 217. Malversation of public funds or property. – Presumption of malversation. – Any public officer who, by
reason of the duties of his office, is accountable for public funds or property, shall appropriate the same, or shall
take or misappropriate or shall consent, or through abandonment or negligence, shall permit any other person to
take such public funds or property, wholly or partially, or shall otherwise be guilty of the misappropriation of
malversation of such funds or property, shall suffer:

xxxxxxxxx

The failure of a public officer to have duly forthcoming any public funds or property with which he is chargeable,
upon demand by any duly authorized officer, shall be prima facie evidence that he has put such missing fund or
property to personal uses.

The elements essential for the conviction of an accused under the above penal provision are:

1. That the offender is a public officer;

1avv phil.net

2. That he has the custody or control of funds or property by reason of the duties of his office;

3. That the funds or property are public funds or property for which he is accountable; and

4. That he appropriated, took, misappropriated or consented or through abandonment or negligence,

permitted another person to take them.

There can hardly be no dispute about the presence of the first three elements. Petitioner is a public officer
occupying the position of a supply officer at the Office of the Provincial Engineer of Marinduque. In that capacity, he
receives money or property belonging to the provincial government for which he is bound to account. It is the last
element, i.e., whether or not petitioner really has misappropriated public funds, where the instant petition focuses
itself on.

In the crime of malversation, all that is necessary for conviction is sufficient proof that the accountable officer had
received public funds, that he did not have them in his possession when demand therefor was made, and that he
could not satisfactorily explain his failure to do so. Direct evidence of personal misappropriation by the accused is
hardly necessary16 as long as the accused cannot explain satisfactorily the shortage in his accounts.

In convicting petitioner, the Sandiganbayan cites the presumption in Article 217, supra, of the Revised Penal Code,
i.e., the failure of a public officer to have duly forthcoming any public funds or property with which he is chargeable,
upon demand by any duly authorized officer, is prima facie evidence that he has put such missing fund or property
to personal uses. The presumption is, of course, rebuttable. Accordingly, if the accused is able to present adequate
evidence that can nullify any likelihood that he had put the funds or property to personal use, then that presumption
would be at an end and the prima facie case is effectively negated. This Court has repeatedly said that when the
absence of funds is not due to the personal use thereof by the accused, the presumption is completely destroyed; in
fact, the presumption is never deemed to have existed at all.17 In this case, however, petitioner failed to overcome
this prima facie evidence of guilt.
Petitioner does not at all dispute the fact that he did receive a cash advance of P18,000.00 for the purchase of tools
for the "NALGO" project. He also admitted receiving the demand letters of the provincial treasurer for him to submit
a liquidation of the cash advance on two occasions, which he failed to do. This notwithstanding, he persists on
arguing that he cannot be convicted of malversation of public funds. He harps on Memorandum No. 88-63 issued by
then Marinduque Governor Reyes that he can offset his unliquidated cash advance of P18,000.00 from the
commutation of his unused vacation and sick leave credits to justify his failure to liquidate his cash advance. He also
invites attention to the fact that, even before the approval of his application for the commutation of his leave credits,
he already paid his cash advance of P18,000.00 on January 27, 1995.

Petitioner’s attempt at rationalization for his failure to liquidate is unacceptable. Memorandum No. 88-63 merely
informed petitioner that his application for commutation may be granted provided that the commutated amount is
first applied to his unliquidated cash advance of P18,000.00. Nowhere in the said memorandum did it state that he is
exempted from submitting his liquidation of the same cash advance. As it is, petitioner failed to liquidate and return
his cash advance despite repeated demands. He was able to return the said amount only on January 27, 1995, that
is, after almost seven (7) years from the last demand. His declaration about making a down payment of P11,000.00
for the alleged purchase of some tools pursuant to the requisition of the local government is gratuitous at best.
There is nothing on record to support his claim and there is nothing to show that he turned over the possession of
the said tools to the government. Moreover, he admitted retaining or keeping the balance of P7,000.00
(or P12,500.00 as he later claimed). The only logical conclusion then is that he misappropriated and personally
benefited from the cash advance of P18,000.00. In Kimpo vs. Sandiganbayan,18 we held:

In malversation of public funds, payment, indemnification, or reimbursement of funds misappropriated, after the
commission of the crime, does not extinguish the criminal liability of the offender which, at most, can merely affect
the accused's civil liability thereunder and be considered a mitigating circumstance being analogous to voluntary
surrender.

Here, the return of the said amount cannot be considered a mitigating circumstance analogous to voluntary
surrender considering that it took petitioner almost seven (7) years to return the amount. Petitioner has not
advanced a plausible reason why he could not liquidate his cash advance which was in his possession for several
years.

WHEREFORE, the assailed decision of the Sandiganbayan in its Criminal Case No. 18003 is hereby AFFIRMED in
toto and this petition is DENIED for lack of merit.

SO ORDERED.

CANCIO C. GARCIA
Associate Justice

WE CONCUR:

(On leave)
REYNATO S. PUNO
Associate Justice
Chairperson

ANGELINA SANDOVAL-GUTIERREZ RENATO C. CORONA

Associate Justice Asscociate Justice

ADOLFO S. AZCUNA
Associate Justice

ATTESTATION

I attest that the conclusions in the above decision were reached in consultation before the case was assigned to the
writer of the opinion of the Court’s Division.
ANGELINA SANDOVAL-GUTIERREZ
Associate Justice
Acting Chairperson, Second Division

CERTIFICATION

Pursuant to Article VIII, Section 13 of the Constitution, and the Division Chairperson's Attestation, it is hereby
certified that the conclusions in the above decision were reached in consultation before the case was assigned to
the writer of the opinion of the Court.

ARTEMIO V. PANGANIBAN
Chief Justice

Footnotes

1Penned by Associate Justice Gregory S. Ong, and concurred in by then Presiding Justice Francis E.
Garchitorena (deceased) and Associate Justice Catalino R. Castañeda (retired); Rollo, pp. 31-48.

2 First Division.

3 Sandiganbayan Rollo, p. 1

4 Id. at 48.

5 Exhibit "B," folder of exhibits.

6 Exhibit "A," folder of exhibits.

7 Exhibit "C," folder of exhibits.

8 Exhibit "C-1," folder of exhibits.

9 Exhibit "1," folder of exhibits.

10 Exhibit "2," folder of exhibits.

11 Exhibit "3," folder of exhibits.

12 Exhibit "4," folder of exhibits.

13 Exhibit "5," folder of exhibits.

14 Exhibit "6," folder of exhibits.

15 Exhibit "7," folder of exhibits.

16 Sarigumba vs. Sandiganbayan, G.R. No. 154239-41, February 16, 2005, 451 SCRA 533, 554.

17 Agullo vs. Sandiganbayan, 414 Phil. 86 (2001).

18 G.R. No. 95604, April 29, 1994, 232 SCRA 53, 62.
G.R. No. 156427 January 20, 2006

AMANDO TETANGCO, Petitioner

vs.
THE HON. OMBUDSMAN and MAYOR JOSE L. ATIENZA, JR., Respondents.

DECISION

QUISUMBING, J.:

This petition for certiorari seeks to annul and set aside the Order,1 dated April 16, 2002, of public respondent
Ombudsman in OMB-CC-02-0151-C which dismissed the Complaint of petitioner Amando Tetangco against private
respondent Mayor Jose L. Atienza, Jr., for violation of Article 2202 of the Revised Penal Code (RPC). Also assailed
is the Order,3 dated August 1, 2002, denying the motion for reconsideration.

On March 8, 2002, petitioner filed his Complaint before the Ombudsman alleging that on January 26, 2001, private
respondent Mayor Atienza gave P3,000 cash financial assistance to the chairman and P1,000 to
each tanod of Barangay 105, Zone 8, District I. Allegedly, on March 5, 2001, Mayor Atienza refunded P20,000 or the
total amount of the financial assistance from the City of Manila when such disbursement was not justified as a lawful
expense.

In his Counter-Affidavit, Mayor Atienza denied the allegations and sought the dismissal of the Complaint for lack of
jurisdiction and for forum-shopping. He asserted that it was the Commission on Elections (COMELEC), not the
Ombudsman that has jurisdiction over the case and the same case had previously been filed before the COMELEC.
Furthermore, the Complaint had no verification and certificate of non-forum shopping. The mayor maintained that
the expenses were legal and justified, the same being supported by disbursement vouchers, and these had passed
prior audit and accounting.

The Investigating Officer recommended the dismissal of the Complaint for lack of evidence and merit. The
Ombudsman adopted his recommendation.

The Office of the Ombudsman, through its Over-all Deputy Ombudsman, likewise denied petitioner’s motion for
reconsideration.

Before us, petitioner assigns for resolution a single issue:

WHETHER OR NOT THE RESPONDENT OMBUDSMAN COMMITTED GRAVE ABUSE OF DISCRETION WHEN
IT DISMISSED THE CRIMINAL CHARGE AGAINST RESPONDENT MAYOR ATIENZA FOR VIOLATION OF ART.
220 OF THE RPC DESPITE THE EXISTENCE OF A PRIMA FACIE CASE AND PROBABLE CAUSE TO INDICT
HIM FOR THE CRIME CHARGED OR, AT THE VERY LEAST, FOR VIOLATION OF SEC. 3(e) OF R.A. NO. 3019
(ANTI-GRAFT AND CORRUPT PRACTICES ACT).4

The sole issue is, did the Ombudsman commit grave abuse of discretion in dismissing the Complaint?

Petitioner insists that Mayor Atienza illegally disbursed public funds when he gave the aforementioned financial
assistance to the chairman and tanods of Barangay 105 since the disbursement was not authorized by law or
ordinance, which the Ombudsman did not consider when it dismissed the Complaint of petitioner. According to
petitioner, the dismissal by the Ombudsman was capricious since the evidence on record was clear that the mayor
was guilty of graft and corruption.5

The Ombudsman, through the Solicitor General, contends that it did not abuse its discretion and there was also no
probable cause against private respondent for violation of Art. 220 of the RPC.6

For his part, Mayor Atienza avers that there was no grave abuse of discretion on the part of the Ombudsman when it
dismissed the Complaint.7
After considering the submissions of the parties, we find that the petition lacks merit. No grave abuse of discretion is
attributable to the Ombudsman.

It is well-settled that the Court will not ordinarily interfere with the Ombudsman’s determination of whether or not
probable cause exists except when it commits grave abuse of discretion.8 Grave abuse of discretion exists where a
power is exercised in an arbitrary, capricious, whimsical or despotic manner by reason of passion or personal
hostility so patent and gross as to amount to evasion of positive duty or virtual refusal to perform a duty enjoined by,
or in contemplation of law.9 Thus, we held in Roxas v. Vasquez,10

… this Court’s consistent policy has been to maintain non-interference in the determination of the Ombudsman of
the existence of probable cause, provided there is no grave abuse in the exercise of such discretion. This observed
policy is based not only on respect for the investigatory and prosecutory powers granted by the Constitution to the
Office of the Ombudsman but upon practicality as well. Otherwise, the functions of the Court will be seriously
hampered by innumerable petitions assailing the dismissal of investigatory proceedings conducted by the Office of
the Ombudsman with regard to complaints filed before it, in much the same way that the courts would be extremely
swamped with cases if they could be compelled to review the exercise of discretion on the part of the fiscals or
prosecuting attorneys each time they decide to file an information in court or dismiss a complaint by a private
complainant.

In this case, the action taken by the Ombudsman cannot be characterized as arbitrary, capricious, whimsical or
despotic. The Ombudsman found no evidence to prove probable cause. Probable cause signifies a reasonable
ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious man’s belief
that the person accused is guilty of the offense with which he is charged.11 Here, the Complaint merely alleged that
the disbursement for financial assistance was neither authorized by law nor justified as a lawful expense.
Complainant did not cite any law or ordinance that provided for an original appropriation of the amount used for the
financial assistance cited and that it was diverted from the appropriation it was intended for.

The Complaint charges Mayor Atienza with illegal use of public funds. On this matter, Art. 220 of the Revised Penal
Code provides:

Art. 220. Illegal use of public funds or property. – Any public officer who shall apply any public fund or property
under his administration to any public use other than that for which such fund or property were appropriated by law
or ordinance shall suffer the penalty of prision correccional in its minimum period or a fine ranging from one-half to
the total of the sum misapplied, if by reason of such misapplication, any damages or embarrassment shall have
resulted to the public service. In either case, the offender shall also suffer the penalty of temporary special
disqualification.

If no damage or embarrassment to the public service has resulted, the penalty shall be a fine from 5 to 50 percent of
the sum misapplied.

The elements of the offense, also known as technical malversation, are: (1) the offender is an accountable public
officer; (2) he applies public funds or property under his administration to some public use; and (3) the public use for
which the public funds or property were applied is different from the purpose for which they were originally
appropriated by law or ordinance. It is clear that for technical malversation to exist, it is necessary that public funds
or properties had been diverted to any public use other than that provided for by law or ordinance.12 To constitute
the crime, there must be a diversion of the funds from the purpose for which they had been originally appropriated
by law or ordinance.13 Patently, the third element is not present in this case.

Conformably then with Section 2, Rule II of the Rules of Procedure of the Office of the Ombudsman,14 the
Investigating Officer may recommend the outright dismissal of a complaint if he finds the same devoid of
merit.15 That is exactly what happened in this case. Thus, no abuse of discretion, much less grave abuse, may be
attributed to the respondent Ombudsman.

WHEREFORE, the instant petition is DISMISSED for lack of merit. No pronouncement as to costs.

SO ORDERED.
 LEONARDO A. QUISUMBING
Associate Justice

WE CONCUR:

ANTONIO T. CARPIO
Associate Justice

CONCHITA CARPIO MORALES DANTE O. TINGA

Associate Justice Asscociate Justice

ATTESTATION

I attest that the conclusions in the above Decision were reached in consultation before the case was assigned to the
writer of the opinion of the Court’s Division.

LEONARDO A. QUISUMBING
Associate Justice
Chairman, Third Division

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairman’s Attestation, it is hereby certified
that the conclusions in the above Decision were reached in consultation before the case was assigned to the writer
of the opinion of the Court’s Division.

ARTEMIO V. PANGANIBAN
Chief Justice

Footnotes

1 Records, pp. 47-49.

2 Article 220. Illegal use of public funds or property. – Any public officer who shall apply any public fund or
property under his administration to any public use other than that for which such fund or property were
appropriated by law or ordinance shall suffer the penalty of prision correccional in its minimum period or a
fine ranging from one-half to the total of the sum misapplied, if by reason of such misapplication, any
damages or embarrassment shall have resulted to the public service. In either case, the offender shall also
suffer the penalty of temporary special disqualification.

If no damage or embarrassment to the public service has resulted, the penalty shall be a fine from 5
to 50 percent of the sum misapplied.

3 Records, pp. 56-58.

4 Rollo, p. 181.

5 Id. at 182-185.

6 Id. at 222-226.

7 Id. at 247-248.
8 See Esquivel v. Ombudsman, G.R. No. 137237, 17 September 2002, 389 SCRA 143, 151.

9 Baylon v. Office of the Ombudsman, G.R. No. 142738, 14 December 2001, 372 SCRA 437, 449.

10 G.R. No. 114944, 19 June 2001, 358 SCRA 636, 646.

11 Supra, note 9.

12 Parungao v. Sandiganbayan, G.R. No. 96025, 15 May 1991, 197 SCRA 173, 180-181.

13 People v. Montemayor and Ducusin, No. L-17449, 30 August 1962, 116 Phil. 78, 81.

14 Administrative Order No. 07 of the Office of the Ombudsman.

Sec. 2. Evaluation.–Upon evaluating the complaint, the investigating officer shall recommend
whether it may be:

a) dismissed outright for want of palpable merit;

b) referred to respondent for comment;

c) indorsed to the proper government office or agency which has jurisdiction over the case;

d) forwarded to the appropriate office or official for fact-finding investigation;

e) referred for administrative adjudication; or

f) subjected to preliminary investigation.

15 See Knecht v. Hon. Desierto, G.R. No. 121916, 26 June 1998, 353 Phil. 494, 502.
 13. G.R. No. 156427 January 20, 2006

AMANDO TETANGCO, Petitioner

vs.
THE HON. OMBUDSMAN and MAYOR JOSE L. ATIENZA, JR., Respondents.

DECISION

QUISUMBING, J.:

This petition for certiorari seeks to annul and set aside the Order,1 dated April 16, 2002, of public respondent
Ombudsman in OMB-CC-02-0151-C which dismissed the Complaint of petitioner Amando Tetangco against private
respondent Mayor Jose L. Atienza, Jr., for violation of Article 2202 of the Revised Penal Code (RPC). Also assailed
is the Order,3 dated August 1, 2002, denying the motion for reconsideration.

On March 8, 2002, petitioner filed his Complaint before the Ombudsman alleging that on January 26, 2001, private
respondent Mayor Atienza gave P3,000 cash financial assistance to the chairman and P1,000 to
each tanod of Barangay 105, Zone 8, District I. Allegedly, on March 5, 2001, Mayor Atienza refunded P20,000 or the
total amount of the financial assistance from the City of Manila when such disbursement was not justified as a lawful
expense.

In his Counter-Affidavit, Mayor Atienza denied the allegations and sought the dismissal of the Complaint for lack of
jurisdiction and for forum-shopping. He asserted that it was the Commission on Elections (COMELEC), not the
Ombudsman that has jurisdiction over the case and the same case had previously been filed before the COMELEC.
Furthermore, the Complaint had no verification and certificate of non-forum shopping. The mayor maintained that
the expenses were legal and justified, the same being supported by disbursement vouchers, and these had passed
prior audit and accounting.

The Investigating Officer recommended the dismissal of the Complaint for lack of evidence and merit. The
Ombudsman adopted his recommendation.

The Office of the Ombudsman, through its Over-all Deputy Ombudsman, likewise denied petitioner’s motion for
reconsideration.

Before us, petitioner assigns for resolution a single issue:

WHETHER OR NOT THE RESPONDENT OMBUDSMAN COMMITTED GRAVE ABUSE OF DISCRETION WHEN
IT DISMISSED THE CRIMINAL CHARGE AGAINST RESPONDENT MAYOR ATIENZA FOR VIOLATION OF ART.
220 OF THE RPC DESPITE THE EXISTENCE OF A PRIMA FACIE CASE AND PROBABLE CAUSE TO INDICT
HIM FOR THE CRIME CHARGED OR, AT THE VERY LEAST, FOR VIOLATION OF SEC. 3(e) OF R.A. NO. 3019
(ANTI-GRAFT AND CORRUPT PRACTICES ACT).4

The sole issue is, did the Ombudsman commit grave abuse of discretion in dismissing the Complaint?

Petitioner insists that Mayor Atienza illegally disbursed public funds when he gave the aforementioned financial
assistance to the chairman and tanods of Barangay 105 since the disbursement was not authorized by law or
ordinance, which the Ombudsman did not consider when it dismissed the Complaint of petitioner. According to
petitioner, the dismissal by the Ombudsman was capricious since the evidence on record was clear that the mayor
was guilty of graft and corruption.5

The Ombudsman, through the Solicitor General, contends that it did not abuse its discretion and there was also no
probable cause against private respondent for violation of Art. 220 of the RPC.6

For his part, Mayor Atienza avers that there was no grave abuse of discretion on the part of the Ombudsman when it
dismissed the Complaint.7
After considering the submissions of the parties, we find that the petition lacks merit. No grave abuse of discretion is
attributable to the Ombudsman.

It is well-settled that the Court will not ordinarily interfere with the Ombudsman’s determination of whether or not
probable cause exists except when it commits grave abuse of discretion.8 Grave abuse of discretion exists where a
power is exercised in an arbitrary, capricious, whimsical or despotic manner by reason of passion or personal
hostility so patent and gross as to amount to evasion of positive duty or virtual refusal to perform a duty enjoined by,
or in contemplation of law.9 Thus, we held in Roxas v. Vasquez,10

… this Court’s consistent policy has been to maintain non-interference in the determination of the Ombudsman of
the existence of probable cause, provided there is no grave abuse in the exercise of such discretion. This observed
policy is based not only on respect for the investigatory and prosecutory powers granted by the Constitution to the
Office of the Ombudsman but upon practicality as well. Otherwise, the functions of the Court will be seriously
hampered by innumerable petitions assailing the dismissal of investigatory proceedings conducted by the Office of
the Ombudsman with regard to complaints filed before it, in much the same way that the courts would be extremely
swamped with cases if they could be compelled to review the exercise of discretion on the part of the fiscals or
prosecuting attorneys each time they decide to file an information in court or dismiss a complaint by a private
complainant.

In this case, the action taken by the Ombudsman cannot be characterized as arbitrary, capricious, whimsical or
despotic. The Ombudsman found no evidence to prove probable cause. Probable cause signifies a reasonable
ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious man’s belief
that the person accused is guilty of the offense with which he is charged.11 Here, the Complaint merely alleged that
the disbursement for financial assistance was neither authorized by law nor justified as a lawful expense.
Complainant did not cite any law or ordinance that provided for an original appropriation of the amount used for the
financial assistance cited and that it was diverted from the appropriation it was intended for.

The Complaint charges Mayor Atienza with illegal use of public funds. On this matter, Art. 220 of the Revised Penal
Code provides:

Art. 220. Illegal use of public funds or property. – Any public officer who shall apply any public fund or property
under his administration to any public use other than that for which such fund or property were appropriated by law
or ordinance shall suffer the penalty of prision correccional in its minimum period or a fine ranging from one-half to
the total of the sum misapplied, if by reason of such misapplication, any damages or embarrassment shall have
resulted to the public service. In either case, the offender shall also suffer the penalty of temporary special
disqualification.

If no damage or embarrassment to the public service has resulted, the penalty shall be a fine from 5 to 50 percent of
the sum misapplied.

The elements of the offense, also known as technical malversation, are: (1) the offender is an accountable public
officer; (2) he applies public funds or property under his administration to some public use; and (3) the public use for
which the public funds or property were applied is different from the purpose for which they were originally
appropriated by law or ordinance. It is clear that for technical malversation to exist, it is necessary that public funds
or properties had been diverted to any public use other than that provided for by law or ordinance.12 To constitute
the crime, there must be a diversion of the funds from the purpose for which they had been originally appropriated
by law or ordinance.13 Patently, the third element is not present in this case.

Conformably then with Section 2, Rule II of the Rules of Procedure of the Office of the Ombudsman,14 the
Investigating Officer may recommend the outright dismissal of a complaint if he finds the same devoid of
merit.15 That is exactly what happened in this case. Thus, no abuse of discretion, much less grave abuse, may be
attributed to the respondent Ombudsman.

WHEREFORE, the instant petition is DISMISSED for lack of merit. No pronouncement as to costs.

SO ORDERED.
 LEONARDO A. QUISUMBING
Associate Justice

WE CONCUR:

ANTONIO T. CARPIO
Associate Justice

CONCHITA CARPIO MORALES DANTE O. TINGA

Associate Justice Asscociate Justice

ATTESTATION

I attest that the conclusions in the above Decision were reached in consultation before the case was assigned to the
writer of the opinion of the Court’s Division.

LEONARDO A. QUISUMBING
Associate Justice
Chairman, Third Division

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairman’s Attestation, it is hereby certified
that the conclusions in the above Decision were reached in consultation before the case was assigned to the writer
of the opinion of the Court’s Division.

ARTEMIO V. PANGANIBAN
Chief Justice

Footnotes

1 Records, pp. 47-49.

2 Article 220. Illegal use of public funds or property. – Any public officer who shall apply any public fund or
property under his administration to any public use other than that for which such fund or property were
appropriated by law or ordinance shall suffer the penalty of prision correccional in its minimum period or a
fine ranging from one-half to the total of the sum misapplied, if by reason of such misapplication, any
damages or embarrassment shall have resulted to the public service. In either case, the offender shall also
suffer the penalty of temporary special disqualification.

If no damage or embarrassment to the public service has resulted, the penalty shall be a fine from 5
to 50 percent of the sum misapplied.

3 Records, pp. 56-58.

4 Rollo, p. 181.

5 Id. at 182-185.

6 Id. at 222-226.

7 Id. at 247-248.
8 See Esquivel v. Ombudsman, G.R. No. 137237, 17 September 2002, 389 SCRA 143, 151.

9 Baylon v. Office of the Ombudsman, G.R. No. 142738, 14 December 2001, 372 SCRA 437, 449.

10 G.R. No. 114944, 19 June 2001, 358 SCRA 636, 646.

11 Supra, note 9.

12 Parungao v. Sandiganbayan, G.R. No. 96025, 15 May 1991, 197 SCRA 173, 180-181.

13 People v. Montemayor and Ducusin, No. L-17449, 30 August 1962, 116 Phil. 78, 81.

14 Administrative Order No. 07 of the Office of the Ombudsman.

Sec. 2. Evaluation.–Upon evaluating the complaint, the investigating officer shall recommend
whether it may be:

a) dismissed outright for want of palpable merit;

b) referred to respondent for comment;

c) indorsed to the proper government office or agency which has jurisdiction over the case;

d) forwarded to the appropriate office or official for fact-finding investigation;

e) referred for administrative adjudication; or

f) subjected to preliminary investigation.

15 See Knecht v. Hon. Desierto, G.R. No. 121916, 26 June 1998, 353 Phil. 494, 502.
 14. G.R. No. 164185 July 23, 2008

PEOPLE OF THE PHILIPPINES, Petitioner,

vs.
THE SANDIGANBAYAN (FOURTH DIVISION) and ALEJANDRO A. VILLAPANDO, Respondents.

DECISION

QUISUMBING, J.:

This petition for certiorari filed by the Office of the Ombudsman through the Office of the Special Prosecutor assails
the May 20, 2004 Decision1 of the Sandiganbayan, Fourth Division, in Criminal Case No. 27465, granting private
respondent Alejandro A. Villapando’s Demurrer to Evidence2 and acquitting him of the crime of unlawful
appointment under Article 2443 of the Revised Penal Code.

The facts culled from the records are as follows:

During the May 11, 1998 elections, Villapando ran for Municipal Mayor of San Vicente, Palawan. Orlando M. Tiape
(now deceased), a relative of Villapando’s wife, ran for Municipal Mayor of Kitcharao, Agusan del Norte. Villapando
won while Tiape lost. Thereafter, on July 1, 1998, Villapando designated Tiape as Municipal Administrator of the
Municipality of San Vicente, Palawan.4 A Contract of Consultancy5 dated February 8, 1999 was executed between
the Municipality of San Vicente, Palawan and Tiape whereby the former employed the services of Tiape as
Municipal Administrative and Development Planning Consultant in the Office of the Municipal Mayor for a period of
six months from January 1, 1999 to June 30, 1999 for a monthly salary of ₱26,953.80.

On February 4, 2000, Solomon B. Maagad and Renato M. Fernandez charged Villapando and Tiape for violation of
Article 244 of the Revised Penal Code before the Office of the Deputy Ombudsman for Luzon.6 The complaint was
resolved against Villapando and Tiape and the following Information7 dated March 19, 2002 charging the two with
violation of Article 244 of the Revised Penal Code was filed with the Sandiganbayan:

xxxx

That on or about 01 July 1998 or sometime prior or subsequent thereto, in San Vicente, Palawan, Philippines, and
within the jurisdiction of this Honorable Court, the above-named accused, ALEJANDRO A. VILLAPANDO, a public
officer, being then the Municipal Mayor of San Vicente, Palawan, committing the crime herein charged, in relation to
and taking advantage of his official functions, conspiring and confederating with accused Orlando M. Tiape, did then
and there wilfully, unlawfully and feloniously appoint ORLANDO M. TIAPE as a Municipal Administrator of San
Vicente, Palawan, accused Alejandro A. Villapando knowing fully well that Orlando Tiape lacks the qualification as
he is a losing mayoralty candidate in the Municipality of Kitcharao, Agusan del Norte during the May 1998 elections,
hence is ineligible for appointment to a public office within one year (1) from the date of the elections, to the damage
and prejudice of the government and of public interest.

CONTRARY TO LAW.8

The Information was docketed as Criminal Case No. 27465 and raffled to the Fourth Division of the Sandiganbayan.

Upon arraignment on September 3, 2002, Villapando pleaded not guilty. Meanwhile, the case against Tiape was
dismissed after the prosecution proved his death which occurred on July 26, 2000.9

After the prosecution rested its case, Villapando moved for leave to file a demurrer to evidence. The
Sandiganbayan, Fourth Division denied his motion but gave him five days within which to inform the court in writing
whether he will nonetheless submit his Demurrer to Evidence for resolution without leave of court.10 Villapando then
filed a Manifestation of Intent to File Demurrer to Evidence,11 and was given 15 days from receipt to file his
Demurrer to Evidence. He filed his Demurrer to Evidence12 on October 28, 2003.

In a Decision dated May 20, 2004, the Sandiganbayan, Fourth Division found Villapando’s Demurrer to Evidence
meritorious, as follows:
The Court found the "Demurrer to Evidence" impressed with merit.

Article 244 of the Revised Penal Code provides:

Article 244. Unlawful appointments.–Any public officer who shall knowingly nominate or appoint to any public office
any person lacking the legal qualifications therefor, shall suffer the penalty of arresto mayor and a fine not
exceeding 1,000 pesos. (underscoring supplied)

A dissection of the above-cited provision [yields] the following elements, to wit:

1. the offender was a public officer;

2. accused nominated or appointed a person to a public office;

3. such person did not have the legal qualifications [therefor;] and,

4. the offender knew that his nominee or appointee did not have the legal qualifications at the time he made
the nomination or appointment.

Afore-cited elements are hereunder discussed.

1. Mayor Villapando was the duly elected Municipal Mayor of San Vicente, Palawan when the alleged crime
was committed.

2. Accused appointed Orlando Tiape as Municipal Administrator of the Municipality of San Vicente, Palawan.

3. There appears to be a dispute. This Court is now called upon to determine whether Orlando Tiape, at the
time of [his] designation as Municipal Administrator, was lacking in legal qualification. Stated differently,
does "legal qualification" contemplate the one (1) year prohibition on appointment as provided for in Sec. 6,
Art. IX-B of the Constitution and Sec. 94 (b) of the Local Government Code, mandating that a candidate who
lost in any election shall not, within one year after such election, be appointed to any office in the
Government?

The Court answers in the negative.

In ascertaining the legal qualifications of a particular appointee to a public office, "there must be a law providing for
the qualifications of a person to be nominated or appointed" therein. To illuminate further, Justice Rodolfo Palattao
succinctly discussed in his book that the qualification of a public officer to hold a particular position in the
government is provided for by law, which may refer to educational attainment, civil service eligibility or experience:

As the title suggests, the offender in this article is a public officer who nominates or appoints a person to a public
office. The person nominated or appointed is not qualified and his lack of qualification is known to the party making
the nomination or appointment. The qualification of a public officer to hold a particular position in the government is
provided by law. The purpose of the law is to ensure that the person appointed is competent to perform the duties of
the office, thereby promoting efficiency in rendering public service.

The qualification to hold public office may refer to educational attainment, civil service eligibility or experience. For
instance, for one to be appointed as judge, he must be a lawyer. So if the Judicial and Bar Council nominates a
person for appointment as judge knowing him to be not a member of the Philippine Bar, such act constitutes a
violation of the law under consideration.

In this case, Orlando Tiape was allegedly appointed to the position of Municipal Administrator. As such, the law that
provides for the legal qualification for the position of municipal administrator is Section 480, Article X of the Local
Government Code, to wit:
"Section 480. Qualifications, Terms, Powers and Duties.–(a) No person shall be appointed administrator unless he
is a citizen of the Philippines, a resident of the local government unit concerned, of good moral character, a holder of
a college degree preferably in public administration, law, or any other related course from a recognized college or
university, and a first grade civil service eligible or its equivalent. He must have acquired experience in management
and administration work for at least five (5) years in the case of the provincial or city administrator, and three (3)
years in the case of the municipal administrator.

xxx xxx x x x"

It is noteworthy to mention that the prosecution did not allege much less prove that Mayor Villapando’s appointee,
Orlando Tiape, lacked any of the qualifications imposed by law on the position of Municipal Administrator.
Prosecution’s argument rested on the assertion that since Tiape lost in the May 11, 1998 election, he necessarily
lacked the required legal qualifications.

It bears stressing that temporary prohibition is not synonymous with absence or lack of legal qualification. A person
who possessed the required legal qualifications for a position may be temporarily disqualified for appointment to a
public position by reason of the one year prohibition imposed on losing candidates. Upon the other hand, one may
not be temporarily disqualified for appointment, but could not be appointed as he lacked any or all of the required
legal qualifications imposed by law.

4. Anent the last element, this Court deems it unnecessary to discuss the same.

WHEREFORE, finding the "Demurrer to Evidence" filed by Mayor Villapando with merit, the same is
hereby GRANTED. Mayor Villapando is hereby ACQUITTED of the crime charged.

SO ORDERED.13

Thus, this petition by the Office of the Ombudsman, through the Office of the Special Prosecutor, representing the
People of the Philippines.

Villapando was required by this Court to file his comment to the petition. Despite several notices, however, he failed
to do so and in a Resolution14 dated June 7, 2006, this Court informed him that he is deemed to have waived the
filing of his comment and the case shall be resolved on the basis of the pleadings submitted by the petitioner.

Petitioner raises the following issues:

I.

WHETHER THE RESPONDENT COURT ACTED WITH GRAVE ABUSE OF DISCRETION AMOUNTING
TO LACK OF OR EXCESS OF JURISDICTION IN INTERPRETING THAT THE "LEGAL
DISQUALIFICATION" IN ARTICLE 244 OF THE REVISED PENAL CODE DOES NOT INCLUDE THE ONE
YEAR PROHIBITION IMPOSED ON LOSING CANDIDATES AS ENUNCIATED IN THE CONSTITUTION
AND THE LOCAL GOVERNMENT CODE.

II.

WHETHER THE RESPONDENT COURT ACTED WITH GRAVE ABUSE OF DISCRETION AMOUNTING
TO LACK OF OR EXCESS OF JURISDICTION IN GIVING DUE COURSE TO, AND EVENTUALLY
GRANTING, THE DEMURRER TO EVIDENCE.15

Simply, the issue is whether or not the Sandiganbayan, Fourth Division, acted with grave abuse of discretion
amounting to lack or excess of jurisdiction.

Petitioner argues that the Sandiganbayan, Fourth Division acted with grave abuse of discretion amounting to lack or
excess of jurisdiction because its interpretation of Article 244 of the Revised Penal Code does not complement the
provision on the one-year prohibition found in the 1987 Constitution and the Local Government Code, particularly
Section 6, Article IX of the 1987 Constitution which states no candidate who has lost in any election shall, within one
year after such election, be appointed to any office in the government or any government-owned or controlled
corporation or in any of their subsidiaries. Section 94(b) of the Local Government Code of 1991, for its part, states
that except for losing candidates in barangay elections, no candidate who lost in any election shall, within one year
after such election, be appointed to any office in the government or any government-owned or controlled corporation
or in any of their subsidiaries. Petitioner argues that the court erred when it ruled that temporary prohibition is not
synonymous with the absence of lack of legal qualification.

The Sandiganbayan, Fourth Division held that the qualifications for a position are provided by law and that it may
well be that one who possesses the required legal qualification for a position may be temporarily disqualified for
appointment to a public position by reason of the one-year prohibition imposed on losing candidates. However, there
is no violation of Article 244 of the Revised Penal Code should a person suffering from temporary disqualification be
appointed so long as the appointee possesses all the qualifications stated in the law.

There is no basis in law or jurisprudence for this interpretation. On the contrary, legal disqualification in Article 244 of
the Revised Penal Code simply means disqualification under the law. Clearly, Section 6, Article IX of the 1987
Constitution and Section 94(b) of the Local Government Code of 1991 prohibits losing candidates within one year
after such election to be appointed to any office in the government or any government-owned or controlled
corporations or in any of their subsidiaries.

Article 244 of the Revised Penal Code states:

Art. 244. Unlawful appointments. — Any public officer who shall knowingly nominate or appoint to any public office
any person lacking the legal qualifications therefore, shall suffer the penalty of arresto mayor and a fine not
exceeding 1,000 pesos.

Section 94 of the Local Government Code provides:

SECTION 94. Appointment of Elective and Appointive Local Officials; Candidates Who Lost in Election. - (a) No
elective or appointive local official shall be eligible for appointment or designation in any capacity to any public office
or position during his tenure.

Unless otherwise allowed by law or by the primary functions of his position, no elective or appointive local official
shall hold any other office or employment in the government or any subdivision, agency or instrumentality thereof,
including government-owned or controlled corporations or their subsidiaries.

(b) Except for losing candidates in barangay elections, no candidate who lost in any election shall, within one (1)
year after such election, be appointed to any office in the government or any government-owned or controlled
corporations or in any of their subsidiaries.

Section 6, Article IX-B of the 1987 Constitution states:

Section 6. No candidate who has lost in any election shall, within one year after such election, be appointed to any
office in the Government or any Government-owned or controlled corporations or in any of their subsidiaries.

Villapando’s contention and the Sandiganbayan, Fourth Division’s interpretation of the term legal disqualification
lack cogency. Article 244 of the Revised Penal Code cannot be circumscribed lexically. Legal disqualification cannot
be read as excluding temporary disqualification in order to exempt therefrom the legal prohibitions under Section 6,
Article IX of the 1987 Constitution and Section 94(b) of the Local Government Code of 1991.

Although this Court held in the case of People v. Sandiganbayan16 that once a court grants the demurrer to
evidence, such order amounts to an acquittal and any further prosecution of the accused would violate the
constitutional proscription on double jeopardy, this Court held in the same case that such ruling on the matter shall
not be disturbed in the absence of a grave abuse of discretion. 1avv phi 1

Grave abuse of discretion defies exact definition, but it generally refers to capricious or whimsical exercise of
judgment as is equivalent to lack of jurisdiction. The abuse of discretion must be patent and gross as to amount to
an evasion of a positive duty or a virtual refusal to perform a duty enjoined by law, or to act at all in contemplation of
law, as where the power is exercised in an arbitrary and despotic manner by reason of passion and hostility.17

In this case, the Sandiganbayan, Fourth Division, in disregarding basic rules of statutory construction, acted with
grave abuse of discretion. Its interpretation of the term legal disqualification in Article 244 of the Revised Penal Code
defies legal cogency. Legal disqualification cannot be read as excluding temporary disqualification in order to
exempt therefrom the legal prohibitions under the 1987 Constitution and the Local Government Code of 1991. We
reiterate the legal maxim ubi lex non distinguit nec nos distinguere debemus. Basic is the rule in statutory
construction that where the law does not distinguish, the courts should not distinguish. There should be no
distinction in the application of a law where none is indicated.

Further, the Sandiganbayan, Fourth Division denied Villapando’s Motion for Leave to File Demurrer to Evidence yet
accommodated Villapando by giving him five days within which to inform it in writing whether he will submit his
demurrer to evidence for resolution without leave of court.

Notably, a judgment rendered with grave abuse of discretion or without due process is void, does not exist in legal
contemplation and, thus, cannot be the source of an acquittal.18

The Sandiganbayan, Fourth Division having acted with grave abuse of discretion in disregarding the basic rules of
statutory construction resulting in its decision granting Villapando’s Demurrer to Evidence and acquitting the latter,
we can do no less but declare its decision null and void.

WHEREFORE, the petition is GRANTED. The Decision dated May 20, 2004 of the Sandiganbayan, Fourth Division,
in Criminal Case No. 27465, granting private respondent Alejandro A. Villapando’s Demurrer to Evidence and
acquitting him of the crime of unlawful appointment under Article 244 of the Revised Penal Code is hereby
declared NULL and VOID. Let the records of this case be remanded to the Sandiganbayan, Fourth Division, for
further proceedings.

SO ORDERED.

LEONARDO A. QUISUMBING
Associate Justice

WE CONCUR:

CONSUELO YNARES-SANTIAGO*
Associate Justice

CONCHITA CARPIO MORALES DANTE O. TINGA

Associate Justice Associate Justice

PRESBITERO J. VELASCO, JR.

Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision had been reached in consultation before the case was assigned
to the writer of the opinion of the Court’s Division.

LEONARDO A. QUISUMBING
Associate Justice
Chairperson

CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairperson’s Attestation, I certify that the
conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of
the opinion of the Court’s Division.

REYNATO S. PUNO
Chief Justice

Footnotes

* Additional member in place of Associate Justice Arturo D. Brion who is on leave.

1 Sandiganbayan rollo, pp. 271-280.

2 Id. at 246-252.

3Art. 244. Unlawful appointments. — Any public officer who shall knowingly nominate or appoint to any
public office any person lacking the legal qualifications therefor, shall suffer the penalty of arresto mayor and
a fine not exceeding 1,000 pesos.

4 Sandiganbayan rollo, p. 152.

5 Id. at 159.

6 Id. at 143-151.

7 Id. at 1-3.

8 Id. at 1-2.

9 Id. at 192-193.

10 Id. at 231.

11 Id. at 235-236.

12 Id. at 246-252.

13 Id. at 275-279.

14 Rollo, p. 97.

15 Id. at 14.

16 G.R. No. 140633, February 4, 2002, 376 SCRA 74.

17 People v. Court of Appeals, G.R. No. 128986, June 21, 1999, 308 SCRA 687, 698.

18 Id. at 690.